Saunders, Michelle A. A/K/A Michelle Brown v. Texas, the State Of

• Court: Court of Appeals of Texas
• Decided: February 12, 1999
• Docket: 05-96-00233-CR
• Status: Published

Opinion

REVERSED and Opinion Filed February 12, 1999

In The

Court of Appeals iFtftli district of Qfexas at Dallas

No. 05-96-00233-CR

MICHELLE A. SAUNDERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 4 Dallas County, Texas Trial Court Cause No. MA95-43700-E

OPINION

Before Chief Justice Thomas and Justices Bridges and Roach Opinion By Chief Justice Thomas

Michelle A. Saunders was convicted in a non-jury trial of unlawfully soliciting drinks while

working as an employee ofan establishment licensed by the Texas Alcoholic Beverage Commission. See TEX. ALCO. BEV. Code Ann. § 104.01(4) (Vernon 1995). In two points of error, appellant challenges the legal and factual sufficiency ofthe evidence to support her conviction. Specifically, appellant contends the evidence did not establish that she was an employee ofthe licensed premises. We agree.

The uncontested testimony from two undercover police officers established that appellant danced topless on-stage at the King's Lounge, abar licensed to serve alcoholic beverages. After finishing herdance, appellant joined the officers at a table. When a waitress arrived to take drink

orders, appellant asked one of the officers if he would buy her a drink. When the officer answered

affirmatively, appellant ordered a Malibu Fling, an alcoholic beverage. The officer paid for the

drink and appellant drank it.

An "employee" as that term is used in the alcoholic beverage code, means, "any person who

works for the retailer in return for financial or other consideration, and who is subject to the control

of the retailer." See Ackley v. State, 592 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op] 1980).

There is no testimony regarding appellant's compensation arrangements with King's Lounge, nor

did the State produce any evidence showing control of appellant by the establishment. Therefore,

even when viewed in the light most favorable to the judgment, the evidence is legally insufficient

to support the conviction. See Jackson v. Virginia, 443 U.S. 307, 318-19(1979); Narvaiz v. State, 840 S.W.2d415, 423 (Tex. Crim. App), cert, denied, 507 U.S. 975 (1993). We sustain appellant's

point of error.

We reverse the trial court's judgment, and enter a judgment of acquittal.

LINDA THOMAS CHIEF JUSTICE

Do Not Publish TEX. R. APP. P. 47.3 Fifth Court of Appeals Case Party & Attorney Address List Page: 1 Date Printed: 02/17/1999

Case Number: 05-96-00023-CR Date Filed: 01/04/1996

Style: Hicks, Johnny Ronnell v.

The State of Texas

APP Johnny Ronnell Hicks INM 000732345 TDC#732345 Ellis II Unit H2-304 Huntsville, TX 77340

STA Sue Korioth ATT 011681975 Assistant District Attorney Frank Crowley Courts Building 133 North Industrial Blvd., LB 19 Dallas, TX 75207 Phone 214/653-3661 Fax 215/653-3643

CC: Clerk -

CC: Judge - Author of opinion Chief Justice Thomas Trial Court Judge Johnson

Rehear denied **THIS OPINION IS RELEASED FOR PUBLICATION YES / NO .<> *-- tftlVJo

Court of Appeals JFtfth tltGtrict of (lexac at Dallas

JUDGMENT

MICHELLE A. SAUNDERS. Appellant Appeal from the County Criminal Court No. 4 of Dallas County, Texas. (Tr.Ct.No. No. 05-96-00023-CR V. MA95-43700-E). Opinion delivered by Chief Justice Thomas,, THE STATE OF TEXAS, Appellee Justices Bridges and Roach participating .

Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the appellant is hereby ACQUITTED.

Judgment entered February 12, 1999.

LINDA THOMAS Yfrnofr CHIEF JUSTICE