Opinion by
Aрpellant Richard Legere was convicted of engaging in organized criminal activity by combining and conspiring with others to promote gambling, to keep a gambling place, and to possess a gambling device. The trial court sentenced Legere to two years imprisonment, suspended his sentence, and placed him on community supervision for two years. Legere brings four issues on aрpeal. We overrule all four issues and affirm the judgment of the trial court.
BACKGROUND
Legere owns Poor Richard’s Lounge. On February 19, 1998, Michael Hodges, a Texas Alcoholic Beverage Commission agent, entered Poor Richard’s Lounge and observed several “eight-liners.” Eight-liners are modified video machines, which the State has labeled “gambling devices.” Hodges issued an administrative warning for possession of gambling devices. On February 27, 1998, Jairo Saenz, an investigator with the Texas Department of Public Safety, went to Poor Richard’s Lounge and observed five eight-liners. Saenz inserted money into one of the machines and won forty credits. He asked the bartender, Rosemarie McKiernan Baldi, to cash him out. Baldi offered Saenz a choice of Diamond Shamrock money orders, HEB gift certificates, and Wal Mart gift certificates. Saenz chose the Diamond Shamrock money order, and Baldi gave him one worth $10.00. On March 3, 1998, Saenz returned to Poor Richard’s Lounge and played the eight-liners again. He won 320 credits and again chose the Diamond Shamrock money orders. The bartender, Pamelia Ann Gamble, gave him two $10.00 Diamond Shamrock money orders. Legere, the owner of Poor Richard’s Lounge, was arrested for organized criminal activity through gambling.
JURY Instruction
In his first issue, Legere argues that the trial court erred in failing to include a mistake of fact instruction in the *109 jury charge, because his testimony was sufficient to raise a mistake of fact defense. At trial, Legere testified that (1) he received advertisements for the sale of eight-liners all the time, and one such advertisement stated that it was designed fоr legal use in Texas, (2) he knew of approximately twenty businesses within four or five miles of his business which operate eight-liners, (3) he paid taxes on the eight-liners, (4) he knew that the American Legion and VFW have similar machines, and (5) he had read a newspaper article that stated that eight-liners were legal. Leg-ere also points to the testimony of police officers who stated that eight-linеrs were prevalent in Texas. Legere argues that even these officers were confused about when and under what circumstances eight-liners were illegal.
Section 8.02 of the Texas Penal Code permits a mistake of fact defense:
(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken bеlief negated the kind of culpability required for commission of the offense.
(b) Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.
Tex. Pen.Code Ann. § 8.02 (Vernon 1994).
Legere’s testimony, however, does not raise a mistake of fact defense. The tеstimony only shows that Legere did not believe that his conduct was illegal. None of the offenses with which Legere was charged required him to believe that his conduct was illegal.
See
Tex. Pen.Code Ann. §§ 47.03(a)(1), (3), 47.04(a), 47.06(a) (Vernon 1994), § 71.02(a)(2) (Vernon Supp.2002). Legere insists only that he did not know that the acts he committed were an offense; he does not dispute that he committed those acts.
See Ransom v. State,
Because Legere was not entitled to an instruction on mistake of fact, we overrule his first issue.
Failure to Grant Mistrial
In his second issue, Legere argues that the trial court erred by not granting a *110 mistrial. Specifically, Legere complains that the State improperly questioned Sergeant Patrick Poerner about Legere’s silence after Legere had been read the Miranda warnings:
Q: During the course of your — the execution of the search and seizure, who, if anybody, read Mr. Legere his Miranda warnings?
A: I did.
Q: And once Mr. Legere was read his Miranda warnings, did he give you a statement?
A: No, sir, he did not.
Q: Did he give you a written statement?
A: No, sir, he did not give us a written statement.
Q: Did he make any voluntary or—
At this point, Legere objected to this line of questioning. The trial court overruled the objection, but later instructed the jury tо disregard the testimony:
Previously, this witness testified to giving this defendant his Miranda warnings. Then there were some questions and answers by the State about what he said or he did not say. You are not to consider any answers regarding that line of questioning and the answers from this witness. You will recall the testimony without me having to elaborate on it. Does everybody understand that?
Legere then moved for a mistrial. The trial court denied his motion.
To preserve his complaint for appellate review, the record must show that Legere made a
timely
objection. Tex.R.App. P. 33.1(a). Legere waited until Poerner had answered the State’s question before he objected. Because Legere’s objection was untimely, he has waived his complaint on appeal.
See Lagrone v. State,
Even if Legere had not waived his complaint, any error by the trial court was harmless. The trial court’s instruction to disregard Poerner’s testimony about Legere’s silence cured any error.
Dinkins v. State,
Constitutionality of Texas Penal Code § 47.01(4)
In his third issue, Legere argues that section 47.01(4) is unconstitutional, because-it is too vague. 2 Section 47.01(4) defines the term “gambling device”:
“Gambling device” means any electronic, electromechanical, or mechanical contrivance not excluded under Paragraph (B) that for a consideration affords the player the opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance. The term:
(A) includes, but is not limited to, gambling device versions of bingo, *111 keno, blackjack, lottery, roulette, video poker, or similar electronic, electromechanical, or mechanical games, or facsimiles thereof, that operate by chance or partially so, that as a result of the play or operation of the game award credits or free games, and that record the number of free games or credits so аwarded and the cancellation or removal of the free games or credits; and
(B) does not include any electronic, electromechanical, or mechanical contrivance designed, made, and adapted solely for bona fide amusement purposes if the contrivance rewards the player exclusively with noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items, that have a wholesale value available from a single play of the game or device of not more than 10 times the amount charged to play the game or device once or $5, whichever is less.
Tex. Pen.Code Ann. § 47.01(4) (Vernon Supp.2002). Legere argues that “[sjeveral terms referred to in the statute are undefined and ambiguous, leaving ordinary persons exercising ordinary common sense to guess at their meanings.” In particular, Legere complains that many of the terms are subject to myriad interpretations. These terms include “bona fide amusement purposes,” “noncash merchandise prizes, toys, or novelties or a representation of value redeemable for those items,” “whоlesale value available from a single play of the game or device,” “wholesale value,” “single play,” and “amount charged to play the game or device once.”
Legere does not specify whether he is bringing a facial challenge to section 47.01(4) or whether he believes section 47.01(4) is unconstitutional as applied to him.
3
A facial challenge to a statutе on the basis of vagueness will succeed only if the statute is impermissibly vague in all its applications.
Briggs v. State,
When challenging the constitutionality of a statute as applied, a defendant must show that in its operation, the statute is unconstitutional as applied to him in his situation.
Bynum v. State,
Recently, three courts of appeals have reviewed whether section 47.01(4) is constitutional in the context of the possession, operation, use, etc., of eight-liners.
See State v. Hancock,
The facts in
Wofford
are similar to the facts here. Both involve the constitutionality of section 47.01(A) in the context of eight-liners. Legere argues that
Wof-ford
is distinguishable, because the police officers’ testimony here showed that they were confused about when an eight-liner is a gambling device. The law enforcement officers in
Wofford,
however, also disagreed about when an eight-liner is illegal.
Wofford,
Motion to Suppress
In his final issuе, Legere argues that the trial court should have granted his motion to suppress, because the search warrant issued to search the premises of Poor Richard’s Lounge was invalid. Specifically, Legere maintains that the affidavit in support of the warrant was insufficient to show probable cause, because it did not allege that the players of the eight-liners received anything оf value. A search warrant must be supported by an affidavit setting forth substantial facts establishing probable cause for its issuance.
Bradshaw v. State,
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. Id. We give deference to the trial court’s determination of *113 historical facts that depend on credibility choices, but review its application of the law of probable cause de novo. Id. Because only the four corners of the affidavit are examined in determining whether probable cause to issue a warrant exists, the trial court is not required to make any credibility choices in examining the affidavit. Id. We, therefore, review the trial court’s ruling here de novo. Id. In conducting this de novo review, we do not determine the substantive issue that was before the magistrate de novo. Id. “Instead, giving great deference to thе magistrate’s decision to issue the warrant, we determine whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding probable cause existed.” Id.
For the magistrate to have properly issued the search warrant, the totality of facts alleged in the affidavit must have given the magistrate a substantial basis for concluding that there was probable cause to believe one or more gambling devices were located in Poor Richard’s Lounge. Section 47.01(4) defines a gambling device as any device that “for a consideration affords the player an opportunity to obtain anything of value ...” Tex. Pen.Code Ann. § 47.01(4) (Vernon Supp.2002) (emphasis added). 4 Section 47.01(9) defines a “thing of value” as “any benefit, but does not include an unrecorded and immediate right of replay not exchangeable fоr value.” Id. § 47.01(9) (emphasis added). Section 1.07(a)(7) defines the term “benefit” to include “anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.” Id. § 1.07(a)(7) (Vernon 1994).
The affiant, Jairo A. Saenz, affirmed that on two separate occasions, in exchange for credits won on two different eight-liners, he was given Travelеrs Express Money Orders, stamped “Gift Certificate.” These money orders were payable to the order of Diamond Shamrock. Legere contends that this affidavit is insufficient, because it affirms that the “gift certificates” awarded were payable to Diamond Shamrock, not to the player. And, by not making such an allegation, the affidavit does not sufficiently allege that gambling devices were present at Poor Richard’s Lounge. We disagree. “Gift certificates” or “money orders” clearly give a player an economic gain or advantage.
See Allstar Amusement v. State,
Conclusion
Having overruled all issues, we affirm the judgment of the trial court.
Notes
. The evidence did, however, raise a mistake of law issue. Mistake of law is usually not a defense: "It is no defense to prosecution that the actor was ignorant of the prоvisions of any law after the law has taken effect.” Tex. Pen.Code Ann. § 8.03(a) (Vernon 1994). Mistake of law is an affirmative defense only if the defendant (1) reasonably believed that his conduct was not criminal and (2) acted in reasonable reliance upon an opinion by a court, administrative agency, or public official charged by law with responsibility for interpreting the law in question. Id. § 8.03(b). Here, the evidence was not sufficient to invoke this affirmative defense, because there was no evidence that Legere relied on an opinion by a court, administrative agency, or public official. Nevertheless, the trial court granted Legere's request for a mistake of law instruction and instructed the jury on mistake of law.
. Legere makes the conclusory statement that section 47.01(4) is "unconstitutionally over-broad and vague.” While Legere briefs the vagueness doctrine, he makes no attempt to brief why this section is overly broad or how it being overly broad is different from it being vague. Because the issue was not properly briefed, we decline to determine whether section 47.01(4) is overly broad in violation of the Constitution. Tex.R.App. P. 38.1(h).
. Legere also does not explain how his rights under the Texas Constitution or under article 38.08 of the Texas Code of Criminal Procedure differ from his rights under the United States Constitution. We, therefore, will only decide whether section 47.01(4) is void for vagueness under the United States Constitution. See Tex.R.App. P. 38.1(h).
. Excluded from the definition are those devices that reward the player "exclusively with noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items, that have a wholesale value available from a single play of the game or device of not more than 10 times the amount charged to play the game or device once or $5, whichever is less.” Tex Pen.Code Ann. § 47.01(4)(B) (Vernon Supp.2002). As subsection 47.01(4)(B) exempts certain types of devices, not all eight-liners are necessarily gambling devices.
See id.
At trial, the State bore the burden of negating the applicability of section 47.01(4)(B) in order to prove the eight-liners were gambling devices within the meaning of the entire statute.
See State v. One Super Cherry Master Video 8-Liner Machine,