PD-1341-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/15/2015 10:45:09 PM
Accepted 5/19/2015 2:40:05 PM
APPELLANT REQUESTS ORAL ARGUMENT/ ABEL ACOSTA
CLERK
ORAL ARGUMENT GRANTED
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
______________________________
No. PD-1341-14
_______________________________
STACY STINE CARY, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the Court of Appeals, Fifth District of Texas at Dallas
Court of Appeals No. 05-12-01421-CR
__________________________________________________________________
APPELLANT'S BRIEF
John M. Helms
Texas Bar No. 09401001
BRODEN, MICKELSEN, HELMS &
SNIPES, LLP
2600 State Street
May 19, 2015 Dallas, Tx 75204
Tel: (469) 951-8496
Fax: (214) 720-9594
john@johnhelmslaw.com
ATTORNEY FOR APPELLANT,
STACY STINE CARY
IDENTITY OF PARTIES AND COUNSEL
A. Parties.
Defendant/Appellant: Stacy Stine Cary
Plaintiff/Appellee: The State of Texas
B. Counsel.
Counsel for Defendant/Appellee Stacy Stine Cary:
Appellate Counsel:
John M. Helms
BRODEN, MICKELSEN, HELMS & SNIPES, LLP
2600 State Street
Dallas, Tx 75204
Trial Counsel:
Richard T. Ryczek
The Ryczek Firm, P.C.
368 West Pike Street, Suite 203
Lawrenceville, Ga. 30046
Heather J. Barbieri
Barbieri Law Firm, P.C.
5600 Tennyson Parkway, Suite 205
Plano, Texas 75024
Robert R. Smith (sentencing only)
Knox Fitzpatrick (sentencing only)
Fitzpatrick, Hagood, Smith & Uhl LLP
Chateau Plaza, Suite 1400
2515 McKinney Avenue
Dallas, Texas 75201-7600
Appellant's Brief--Page i
Counsel for Plaintiff/Appellee The State of Texas:
Appellate Counsel:
Joseph Corcoran (lead appellate counsel)
Gretchen Merenda (lead appellate counsel before Dallas Court
of Appeals)
Don Clemmer
Edward L. Marshall
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711
Trial Counsel:
Harry E. White
Cathy E. Chopin
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711
Appellant's Brief--Page ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL………………………………….……i
TABLE OF CONTENTS…………………………………………...………..........iii
INDEX OF AUTHORITIES……………………………………………………....vi
STATEMENT OF THE CASE…………………………………………………….1
STATEMENT REGARDING ORAL ARGUMENT……………………………...1
ISSUES PRESENTED…………………………………………………………......2
STATEMENT OF FACTS……………………………………………………........2
SUMMARY OF ARGUMENT……………………………………………...........10
ARGUMENT……………………………………………………………………...12
I. STANDARD OF REVIEW AND OVERVIEW OF THE BRIBERY
CHARGES ……………………………………….......................................12
A. STANDARD OF REVIEW…………………………………............12
B. THE BRIBERY CHARGES………………………………...............13
1. ALL CHARGES WERE EITHER BRIBERY OR A
CHARGE THAT INCORPORATED
BRIBERY…………………………………………….............13
2. THE BRIBERY STATUTE AS CHARGED IN THIS
CASE…………………………………………………............14
3. ALL BRIBERY ALLEGATIONS CHARGE THE BRIBING
OF MS. WOOTEN TO BECOME A CANDIDATE, TO
CONTINUE TO RUN FOR OFFICE, AND MAKING
FAVORABLE RULINGS……………………………………17
Appellant's Brief--Page iii
II. ARGUMENTS REGARDING ISSUES PRESENTED…………………...18
A. ISSUE 1: THE COURT SHOULD REVERSE MS. CARY’S
BRIBERY CONVICTIONS BECAUSE THE STATE
AFFIRMATIVELY NEGATED THE ELEMENT OF
BRIBERY BY SOMETHING OTHER THAN “POLITICAL
CONTRIBUTIONS,” AND THE EVIDENCE WAS
THEREFORE INSUFFICIENT………………………….………….18
B. ISSUE 2: THE EVIDENCE WAS INSUFFICIENT TO
PROVE THE REQUISITE OFFICIAL ACTION INTENDED
TO BE EXCHANGED FOR THE ALLEGED BENEFIT, AS
REQUIRED BY THE BRIBERY STATUTE………………………27
C. ISSUE 3: THE EVIDENCE WAS INSUFFICIENT TO
PROVE THAT MS. CARY HAD THE REQUISITE INTENT
TO COMMIT BRIBERY…………………………………...……….33
D. ISSUE 4: THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT MS. CARY’S CONVICTION FOR ENGAGING
IN ORGANIZED CRIMINAL ACTIVITY AND MONEY
LAUNDERING…………………………………………….……….35
1. THE EVIDENCE OF ENGAGING IN ORGANIZED
CRIMINAL ACTIVITY WAS INSUFFICIENT
BECAUSE THE EVIDENCE OF THE PREDICATE
OFFENSES WAS INSUFFICIENT………………………….35
a. PREDICATE OFFENSE OF BRIBERY…...…………36
b. PREDICATE OFFENSE OF MONEY
LAUNDERING..............................................................36
c. PREDICATE OFFENSE OF TAMPERING WITH
A GOVERNMENT RECORD………………………...37
2. THE EVIDENCE OF MONEY LAUNDERING WAS
INSUFFICIENT………………………………………….......41
CONCLUSION………………………………………………………………...…42
Appellant's Brief--Page iv
INDEX OF AUTHORITIES
Statutes/Rules:
Texas Election Code § 251.001 ………………………………………………..…24
Texas Election Code § 251.001(2)………………………………………………..19
Texas Election Code § 251.001(3)……………………………………………..…19
Texas Election Code § 251.001(5) ……………………………………………….19
Texas Government Code § 572.023(a) ……………………………………….38, 39
Texas Penal Code § 1.07 (a)(41)………………………….....................................29
Texas Penal Code § 2.02(b)………………………….............................................20
Texas Penal Code § 7.02 (a)………………………………………………......33, 34
Texas Penal Code § 34.01 (1)…………………………………………………14, 37
Texas Penal Code § 34.02(a)(1)………………………………………………15, 28
Texas Penal Code § 34.02(a)(2)………………………………………………15, 28
Texas Penal Code § 34.02(a)(1), (2)……………………………1, 15, 16, 19, 26, 27
Texas Penal Code § 34.02(a)(1), (2), (3)……………………………….…………14
Texas Penal Code § 34.02(a)(1), (2), (3), (4)..……………………………………14
Texas Penal Code § 34.02 (a)(4)……………………………......……...1, 14, 37, 41
Texas Penal Code § 36.02……………………………………….......…………..…1
Texas Penal Code § 36.02 (a)(1)……………………………………...14, 15, 23, 26
Texas Penal Code § 36.02(d)…………………………………….……16, 19, 23, 24
Texas Penal Code § 36.09………………………………………………...………17
Texas Penal Code § 37.10 (a)(5)………………………………………….14, 37, 38
Texas Penal Code § 71.02 (a)…………………………………..………1, 13, 35, 36
Appellant's Brief--Page v
Cases:
Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2012) (Cochran, J.
concurring)…………………………………......………………………………….12
Carter v. State, 656 S.W.2d 468 (Tex. Crim. App. 1983) (en banc)……………...26
Cary v. State, No. 05-13-01010, slip op. at 11 (Tex. App.—Dallas, March 25,
2015)………………………………………………………………………..…25, 41
Ex parte Thompson, 179 S.W. 3d 549 (Tex. Crim. App. 2005)……...………..…34
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).................................12
Hill v. State, 883 S.W.2d 765 (Tex. App.--Amarillo 1994, pet. ref’d)……............34
Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007)…………….........12, 33
Hubbard v. State, 668 S.W.2d 419 (Tex. App—Dallas 1984, pet.granted
on other grounds)………………………………………………………...……17, 33
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)................................12, 33
Martinez v. State, 696 S.W.2d 930, 933 (Tex. App.—Austin 1985, pet. ref’d)16, 28
McCallum v. State, 686 S.W.2d 132, 136 (Tex. Crim. App. 1985)…...16, 28, 30, 32
See Opokuofosu v. State, 1998 Tex. App. LEXIS 903, *16 (Tex.App. –
Texarkana 1998, pet. ref’d)……………………………………………………….38
Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012)……………….…26
Winfrey v. State, 2013 Tex. Crim. App. Lexis 431, 10-12
(Tex. Crim. App. Feb. 27, 2013)…………………………………...…………12, 33
Appellant's Brief--Page vi
STATEMENT OF THE CASE
This is an appeal from a criminal conviction from the 366th Judicial District
Court of Collin County, Texas. Following a jury trial, Appellant, Stacy Stine Cary
("Ms. Cary"), was convicted of one count of Engaging in Organized Criminal
Activity under section 71.02(a) of the Texas Penal Code, six counts of bribery
under sections 36.02(a)(1) and (2) of the Texas Penal Code, and one count of
money laundering under section 34.02(a)(4) of the Texas Penal Code. TR 9 at 57-
60.1
On each count, Ms. Cary was sentenced to serve ten years in prison,
probated for ten years, plus thirty days of jail time. The sentences on each count
run concurrently. TR10 at 187.
A divided panel of the Dallas Court of Appeals affirmed all convictions.
Two justices voted to affirm. The dissenting justice would have reversed all
convictions.
This Court granted a petition for discretionary review on the issues below.
STATEMENT REGARDING ORAL ARGUMENT
Appellant respectfully requests oral argument, which the Court has already
granted. This case involves multiple actors, the interplay of election law, and
circumstantial evidence. Appellant believes that the facts and the application of
the law are sufficiently complicated that oral argument would benefit the Court.
1
TR # refers to the trial record, volume #.
Appellant's Brief--Page 1
ISSUES PRESENTED
1. Whether Ms. Cary’s bribery convictions should be reversed because
the evidence was insufficient to prove bribery by something other than
“political contributions”?
2. Whether the evidence was sufficient to prove the requisite
official action intended to be exchanged for the alleged benefit, as
required by the bribery statute?
3. Whether the evidence was sufficient to prove that Appellant had the
requisite intent to commit bribery?
4. Whether the evidence was sufficient to support Ms. Cary's conviction
for engaging in organized criminal activity and money laundering?
STATEMENT OF FACTS
A. Introduction.
This case involves efforts to unseat a Collin County judge who had a
reputation for being vindictive, biased, and abusive. That judge, Charles Sandoval,
had presided over the 380th Judicial District Court of Collin County, Texas. He
was defeated in the 2008 Republican primary by a candidate named Suzanne
Wooten ("Ms. Wooten" or "Judge Wooten"). There was no Democratic opponent
in the general election, and Ms. Wooten therefore became judge of the 380th
Judicial District Court.
In this case, the State charged that Ms. Cary, along with her husband, David
Cary ("David Cary" or "Mr. Cary"), and a man who became Ms. Wooten's
campaign manager, Stephen Spencer ("Mr. Spencer"), acted together to bribe Ms.
Wooten. The State made these charges even though all of the alleged bribe money
Appellant's Brief--Page 2
was spent by Mr. Spencer on behalf of the Wooten campaign, none went to Ms.
Wooten, all of it was invoiced to the Wooten campaign, and all of it was paid back
in full by the Wooten campaign from funds that the Wooten campaign legitimately
raised.
The State's bribery theory was that the Carys paid Mr. Spencer money, Mr.
Spencer spent a significant percentage of it on Wooten campaign expenses, and
Mr. Spencer did not invoice the Wooten campaign quickly enough. According to
the State, this allowed Mr. Spencer to make some expenditures on behalf of the
Wooten campaign at times when the campaign did not yet have enough money
raised to cover the expenditures.
B. David Cary's Divorce Proceedings In Judge Sandoval's Court.
In 2003, David Cary filed for divorce from his wife, Jennifer Cary. TR 11 at
1259 (State's Tr. Ex. 7). The case was assigned to Judge Sandoval's court. Id.
In the mid-2004, the parties reached a mediated settlement, and on October
5, 2004, the court approved the mediated settlement and entered a Final Divorce
Decree. TR 11 at 1282 (State's Tr. Ex. 7). The Final Divorce Decree made David
and Jennifer Cary Joint Managing Conservators over their two young daughters
who were born prematurely and who were both special needs children. Id.
Barely more than six months later, however, on April 13, 2005, Jennifer
Cary filed a Petition to Modify the Final Divorce Decree. TR 11 at 1353 (State's
Appellant's Brief--Page 3
Tr. Ex. 7). In that Petition, which was also assigned to Judge Sandoval's court,
Jennifer Cary raised a dispute over the care and counseling for the two daughters.
She asked the court to give her the exclusive right to designate the children's
residence and to modify the visitation schedule to reduce David Cary's visitation.
Id. After this point, the litigation became heated.
Jennifer Cary was represented by attorney Rick Robertson, who was known
to be very close to Judge Sandoval and one of his strongest supporters. TR 8 at 45.
During the course of the litigation, David Cary's attorney learned of what he
believed were ex parte contacts between Mr. Robertson and Judge Sandoval. He
therefore filed a motion to recuse Judge Sandoval on April 28, 2006. TR 11 at
1361 (State's Tr. Ex. 7). Ultimately, the motion was unsuccessful, and Judge
Sandoval remained on the case. David Cary began to feel more and more like
Judge Sandoval was biased against him and was treating him unfairly.
Judge Sandoval had a reputation in Collin County for being vindictive and
abusive. Testimony in the record includes the results of an internet poll showing
Judge Sandoval as being one of the five worst judges in the State of Texas and the
most reversed judge in Collin County. TR 4 at 95-96. There was testimony that
most lawyers in Collin County were "terrified" of Judge Sandoval and that lawyers
repeatedly commented that "he's vindictive and he'll make you pay." TR 6 at 35-
36; TR 8 at 45, 55.
Appellant's Brief--Page 4
On December 1, 2006, Judge Sandoval granted Jennifer Cary's Petition to
Modify in full. He removed David Cary as Joint Managing Conservator and
appointed Jennifer Cary as Sole Managing Conservator of the girls. TR 11 at 1442
(State's Tr. Ex. 7). He also awarded Jennifer Cary attorney's fees of $416,543.16.
Id. David Cary did not appeal any aspect of this order.
On January 23, 2007, David Cary filed a Petition to Modify the child support
schedules. He also requested a transfer of the matter to Dallas County, where he
alleged that the children had primarily lived over the past six months. TR 11 at
1473 (State's Tr. Ex 7). Judge Sandoval denied this petition and imposed sanctions
on David Cary and his lawyer.
C. David Cary's Attempts At Legislative Reform And His Introduction To
Stephen Spencer.
During this time, David Cary became increasingly disillusioned with the
way Texas courts handle family law and parental rights issues. He began
considering whether there were potential legislative solutions and talking to people
in Austin.
At the same time, Stephen Spencer was talking to members of the State
Legislature and their staffs about similar issues. Mr. Spencer had an interest in
parental rights, and he had connections to an organization called the Texas Home
School Counsel.
Appellant's Brief--Page 5
The General Counsel for Texas Speaker of the House Tom Craddick had
been in contact with both the Carys and Mr. Spencer, and he introduced them by
email because of their shared interests. TR 4 at 15-19.
In early October of 2007, Mr. Spencer drove to the Carys' home in Dallas to
meet with them. TR 4 at 56-57. Mr. Spencer and the Carys discussed David
Cary's interest in legislation concerning parental rights. Id. Mr. Spencer indicated
that he knew about how the legislative process worked and thought he could help
Mr. Cary. Id.
At around the same time, in addition to possible legislative solutions, Mr.
Spencer had been discussing with Tim Lambert of the Texas Home School
Council, the possibility of trying to unseat judges who were not following the law
in the area of parental rights. TR 4 at 79-106. After talking to David Cary, Mr.
Spencer went to Collin County and reviewed David Cary's divorce file. Id. He
also did research on Judge Sandoval and concluded that Judge Sandoval lacked a
family law background, had a very poor reputation, and was not applying the law
correctly. Id. Mr. Spencer ultimately decided to try to find someone who could
run against Judge Sandoval. Id. He considered other Collin County judges, but he
decided to focus his efforts on Judge Sandoval. Id.
Appellant's Brief--Page 6
D. Stephen Spencer Recruits Suzanne Wooten To Run.
In or around mid-November 2007, Mr. Spencer began speaking to several
lawyers in Collin County about running against Judge Sandoval. TR 4 at 110. He
was turned down several times before he contacted Suzanne Wooten.
Mr. Spencer got Ms. Wooten's name from the chairman of the Collin County
Democratic Party. TR 4 at 137. They had been trying to recruit Ms. Wooten to run
against Judge Sandoval as well, but Ms. Wooten had declined, presumably because
it is almost impossible for a Democrat to win in Collin County. TR 4 137-38.
Ms. Wooten had expressed interest to others in running for judge before. TR
8 at 19. She was a good candidate because she had a family law background and
was well-respected. TR 4 137-140, 147-48. One of the State's witnesses testified,
for example, that she was very concerned even with appearances of impropriety.
TR 8 at 22-23.
In his initial conversation with Ms. Wooten, Mr. Spencer told her that he had
already lined up an experienced political consultant, which he had done, whose
name was Hank Clements. TR 4 at 149-51, 183. He also told her that, through his
contacts, including the Texas Home School Counsel, he could help get her name
out, help her get endorsements, and help with grass roots support. TR 4 at 150-51.
Ms. Wooten agreed to enter the race as a Republican and made Mr. Spencer
her campaign manager. She filed papers on January 2, 2008. TR 4 at 144.
Appellant's Brief--Page 7
E. Ms. Wooten's Campaign.
Mr. Spencer served as Ms. Wooten’s campaign manager. He worked with
Mr. Clements, who served as a strategy consultant for Ms. Wooten's campaign.
Through his company, SpenOff Strategies, Mr. Spencer paid for certain campaign
expenditures, such as advertising, and sent the campaign invoices for
reimbursement. TR 4 at 237-38. The Wooten campaign’s reimbursements to Mr.
Spencer’s company were recorded as campaign expenditures on Ms. Wooten’s
campaign finance reports. TR 11 at 2152 (Exh. 62). Mr. Clements testified that
having a campaign consultant operate this way is not unusual, that he has done that
in the past, and that it is not illegal. TR 4 at 239, 243.
Stacy Cary was a high school graduate who had worked on her family's
businesses and was married to David Cary. TR 7 at 157. Ms. Cary had very little
involvement in any of the foregoing. The evidence at trial showed that Ms. Cary
was involved with requesting or causing monetary transactions through which the
Carys made payments to Mr. Spencer. From January 4, 2008 to March 14, 2008,
the total amount of payments from Ms. Cary to Mr. Spencer was $150,000. There
was no evidence that Ms. Cary had any contact with Ms. Wooten or was involved
in her campaign in any way whatsoever.
According to the State, the Wooten campaign reimbursed Mr. Spencer for
about $102,291.23 worth of campaign expenses that he initially paid for and later
Appellant's Brief--Page 8
billed the campaign. TR 7 at 185-86. All of the money that Mr. Spencer paid and
invoiced to the Wooten campaign was used for real campaign expenditures. TR 9
at 44. There is no evidence of any direct or indirect transfers to Ms. Wooten,
personally. The State does not contend that any of the funds were raised
improperly. Indeed, all of the reimbursements to Mr. Spencer were from the
Wooten campaign account and from properly raised money. TR 7 at 185-86.
F. Ms. Wooten Becomes Judge of the 380th Court And Promptly Recuses
Herself From David Cary’s Child Custody Case.
The Republican primary was on March 4, 2008. TR 4 at 142-44. Ms.
Wooten won the primary and did not have an opponent in the general election.
She therefore became judge of the 380th Judicial District Court.
After taking the bench, Judge Wooten recused herself from David Cary’s
child custody case. She did so not because of potential bias in favor of Mr. Cary,
but because she was concerned about a potential conflict of interest that could have
made her appear biased against David Cary.
When David Cary's divorce/child custody case ultimately came back in
Judge Wooten's court, Judge Wooten's former campaign treasurer, Alma
Benavides, appeared as counsel on behalf of David Cary's ex-wife and against
David Cary. TR.11 at 1734 (State Tr. Ex. 7). Because of that, Judge Wooten
raised the issue of recusal herself, saying that, because of her relationship with Ms.
Benavides, she was "tremendously concerned" about fairness to Mr. Cary's
Appellant's Brief--Page 9
counsel. Tr. 11 at 2460 (State Tr. Ex. 64 at 3-4). Judge Wooten ultimately asked
that Ms. Benavides file a recusal motion so that she could rule on it. TR 11 at
2460 (State Tr. Ex. 64 at 15). The motion was filed, and Judge Wooten recused
herself on March 4, 2009--less than a week after Ms. Benavides appeared. TR 11
at 1736 (State Tr. Ex. 7). Thus, Judge Wooten made no rulings in the case that was
Mr. Cary’s alleged motivation for wanting to remove Judge Sandoval.
SUMMARY OF ARGUMENT
There was insufficient evidence to support Ms. Cary's bribery convictions.
First, the sections of the bribery statute under which Ms. Cary was charged require
proof beyond a reasonable doubt that Ms. Cary committed bribery by something
other than a “political contribution.” The State’s proof at trial, however, not only
failed to do so, but it affirmatively proved Ms. Cary’s innocence, because the only
possible benefits she conveyed were “political contributions.
Second, the Superseding Indictment alleges bribery as consideration for Ms.
Wooten's decision to become a candidate, her continuing to be a candidate, and for
favorable rulings. The evidence was insufficient as to each of these. Ms. Wooten's
decision to become a candidate cannot support the conviction because the bribery
statute does not apply to a decision to become a candidate. Continuing to run for
office cannot support a bribery conviction because there no evidence to support it.
There was also insufficient evidence of the commission of bribery as consideration
Appellant's Brief--Page 10
for favorable rulings, in particular, because there was no evidence that the alleged
recipient would have known for whom to rule favorably.
Third, there was insufficient evidence that Ms. Cary had the requisite intent
to commit bribery for any reason.
Fourth, there was insufficient evidence of engaging in organized criminal
activity (“EOCA”), and money laundering. As to EOCA, there was insufficient
evidence of the alleged predicate crimes. Two of the three alleged predicate crimes
depend on bribery, and the evidence of bribery was insufficient for the reasons
above. The third alleged predicate crime was tampering with a government record,
but the evidence fails to show that the government record was false or that Ms.
Cary had any knowledge of it whatsoever.
There was insufficient evidence of money laundering as alleged, because it
requires proof of bribery, and the evidence of bribery was insufficient.
The decision in the Court of Appeals was 2-1. Justice FitzGerald dissented
and would have reversed all of Ms. Cary’s convictions. In Ms. Cary’s husband’s
appeal, a unanimous panel of the Dallas Court of Appeals recently reversed all of
David Cary’s convictions on the same charges. That opinion is Appendix A,
hereto.
The dissent in this case and the unanimous panel in David Cary’s case were
correct. This Court should reverse all of Ms. Cary’s convictions.
Appellant's Brief--Page 11
ARGUMENT
I.
STANDARD OF REVIEW
AND OVERVIEW OF THE BRIBERY CHARGES
A. Standard of Review.
This Court has articulated the standard of review for sufficiency of the
evidence as follows:
We apply Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979), as the standard for reviewing the sufficiency of
evidence. "In determining whether the evidence is legally sufficient
to support a conviction, a reviewing court must consider all of the
evidence in the light most favorable to the verdict and determine
whether, based on that evidence and reasonable inferences therefrom,
a rational fact finder could have found the essential elements of the
crime beyond a reasonable doubt."
Winfrey v. State, 2013 Tex. Crim. App. LEXIS 431, 10-12 (Tex. Crim. App. Feb.
27, 2013) (quoting Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)).
Under this standard, "juries are not permitted to come to conclusions based
on mere speculation or factually unsupported inferences or presumptions." Hooper
v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). "[T]here is no higher standard
of appellate review than the standard mandated by Jackson." Brooks v. State, 323
S.W.3d 893, 917 (Tex. Crim. App. 2010) (Cochran, J. concurring).
Appellant's Brief--Page 12
B. The Bribery Charges.
1. All Charges Were Either Bribery Or A Charge That
Incorporated Bribery.
Bribery is the linchpin of every charge against Ms. Cary. The Superseding
Indictment charges Ms. Cary with bribery in six substantive counts (Counts II-
VII). Each bribery count involves a separate payment by Ms. Cary to Mr. Spencer.
Bribery was also a critical component of the other two charges. Count I,
Engaging in Organized Criminal Activity, incorporates the same bribery
allegations. In order to commit the crime of Engaging in Organized Criminal
Activity, the Texas Penal Code requires, in pertinent part, proof beyond a
reasonable doubt that a person "establish, maintain, or participate in a
combination...to commit or conspire to commit one or more of" a list of predicate
crimes. Tex. Pen. Code § 71.02(a). In this case, the State charged bribery as one
of three predicate crimes. The other two are money laundering, which has bribery
as its predicate offense, and tampering with a government record.
The jury was instructed that they should convict on Engaging in Organized
Criminal Activity if they unanimously agreed, beyond a reasonable doubt, that Ms.
Cary had established, maintained, or participated in a combination to commit or, as
Appellant's Brief--Page 13
a lesser included offense, conspire to commit, any of the three predicate crimes--
bribery, money laundering,2 or tampering with a government record.3
Count VIII, money laundering, also stands or falls with the bribery charges.
In pertinent part, the Texas money laundering statute makes it a crime if a person
"knowingly...finances or invests or intends to finance or invest funds that the
person believes are intended to further the commission of criminal activity." Tex.
Pen. Code § 34.02(a)(4). For purposes of this case, "[c]riminal activity" means a
felony offense. Tex. Pen. Code § 34.01(1). Count VIII alleges that the criminal
activity was bribery. Superseding Indictment, Count VIII.
2. The Bribery Statute As Charged In This Case.
The Texas bribery statute has four operative subsections that delineate the
crime of bribery—Tex. Pen. Code §§ 36.02(a) (1), (2), (3), and (4). Subsections
(a) (1), (2), and (3) do not apply to a benefit that is “a political contribution as
defined by Title 15, Election Code.” Tex. Pen. Code §36.02(d). Only subsection
(a)(4) applies if the benefit is a political contribution. See id.
Subsection (a)(4), which applies to political contributions, requires
significantly more strict proof than the other subsections. Unlike subsections (a)
(1), (2), and (3), in order to prove bribery involving a political contribution, the
2
Tex. Pen. Code §34.02. Subsection (a)(4) was charged in this case.
3
Tex. Pen. Code § 37.10(a)(5). The State did not charge Ms. Cary with a substantive count of
tampering with a government record.
Appellant's Brief--Page 14
State must show “an express agreement to take or withhold a specific exercise of
official discretion” and that such exercise of discretion “would not have been taken
or withheld but for the benefit.” Tex. Penal Code § 36.02(a)(4). Moreover, the
State is required to produce “direct evidence of the express agreement.” Id. Thus,
an implied agreement and circumstantial evidence of an express agreement are not
enough.
Ms. Cary was only charged under sections 36.02(a)(1) and (2). Superseding
Indictment, Counts I-VIII. As set forth above, sections 36.02(a)(1) and (2) do not
apply when the alleged benefit to the public servant is political contributions.
Section 36.02(a)(1) states that "[a] person commits an offense if he intentionally or
knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or
agrees to accept from another...any benefit as consideration for the recipient's
decision, opinion, recommendation, or vote, or other exercise of discretion as a
public servant, party official, or voter." Tex. Pen. Code § 36.02(a)(1).
Similarly, section 36.02(a)(2) states that "[a] person commits an offense if
he intentionally or knowingly offers, confers, or agrees to confer on another, or
solicits, accepts, or agrees to accept from another...any benefit as consideration for
the recipient’s decision, vote, recommendation, or other exercise of official
discretion in a judicial or administrative proceeding.” Tex. Pen. Code §
36.02(a)(2).
Appellant's Brief--Page 15
Thus, in order to prove bribery under this subsection, the State was required
to prove each element of the charged subsection beyond a reasonable doubt and
with proof of a “benefit” that is not a political contribution. See Tex. Pen. Code §
36.02(d) (“It is an exception to the application of Subdivisions (1), (2), and (3) of
subsection (a) that the benefit is a political contribution as defined by Title 15,
Election Code….”).
The phrase "as consideration for" is particularly important in this case.
Sections 36.02(a)(1) and (2), under which Ms. Cary was charged, require proof of
consideration in the form of a decision or other exercise of discretion by a public
servant or in an administrative or judicial proceeding. This Court has held that the
"as consideration for" language refers to “a bilateral agreement--in effect an illegal
contract to exchange a benefit as consideration for the performance of an official
function." McCallum v. State, 686 S.W.2d 132, 136 (Tex. Crim. App. 1985).
The requisite consideration need not actually be accepted by the public
official, but there must be proof that the benefit was at least offered to the public
official in exchange for the consideration. See Martinez v. State, 696 S.W.2d
930, 933 (Tex. App.—Austin 1985, pet. ref’d) (holding that the bribery statute
requires proof that an offer or solicitation “was made by the accused with the
purpose to promote or facilitate the exchange of the benefit for the official
action”).
Appellant's Brief--Page 16
The intended exchange of a benefit in return for official action is also what
distinguishes the bribery statute from the gift statute. See Tex. Penal Code § 36.09
(“Offering Gift To Public Servant”). Offering or conferring a benefit to a public
official in return for the public official’s general favor may violate the gift statute
(a Class A misdemeanor), but it is not a bribe (a second-degree felony). In
Hubbard v. State, 668 S.W.2d 419 (Tex. App—Dallas 1984, pet. granted on other
grounds), for example, this Court distinguished the bribery statute from the gift
statute by explaining that the gift statute “is designed to discourage generally
buying the favor of public officials,” whereas the bribery statute involves
“consideration [and] effecting an agreement.” Id. at 421. Accordingly, a showing
of the offering or conveying of a benefit alone is not enough to prove bribery. The
State must show that the benefit was offered or conferred “as consideration for” the
official action.
3. All Bribery Allegations Charge The Bribing Of Ms. Wooten As
Consideration For Becoming A Candidate, Continuing To Run
For Office, And Making Favorable Rulings.
The Superseding Indictment specifies three things for which the State claims
the alleged benefits were consideration: "filing paperwork to run for Judge,
proceeding and continuing with a campaign to unseat the incumbent elected Judge
of the 380th Judicial District Court, and as Judge of the 380th Judicial District
Court presiding over and issuing favorable rulings in cases in which the Defendant
Appellant's Brief--Page 17
and Stacy Stine Cary are parties." Superseding Indictment, Counts I-VIII. As the
State explained in closing argument: “Because we’ve got three methods of proving
our case. We’ve alleged inducing her to run. They’re inducing her to continue to
run, and to rule.” TR 9 at 18. The evidence of each of these, however, is
insufficient, and none of them can support the conviction.
II.
ARGUMENTS REGARDING ISSUES PRESENTED
A. Issue 1: The Court Should Reverse Ms. Cary’s Bribery Convictions
Because The State Affirmatively Negated The Element Of Bribery By
Something Other Than “Political Contributions,” And The Evidence
Was Therefore Insufficient.
The State's bribery theory was an attempt to shoehorn potential election
reporting and campaign finance issues into a bribery case. It does not fit. Justice
FitzGerald’s dissent accurately described this case as “a completely misdirected
and unsupported prosecution and conviction that are not supported by law.”
Dissenting Opinion at 9.
Ms. Cary did not commit bribery or any of the other crimes charged, each of
which includes bribery as an element. In particular, the State charged Ms. Cary
with, and the jury was only charged on, bribery by something other than a
“political contribution,” which requires a substantially lower level of proof than
bribery by “political contribution.” But the State affirmatively negated an essential
Appellant's Brief--Page 18
element of the crime by proving that the alleged bribery could only have been
through “political contribution[s].”
As explained above, the only sections of the bribery statute under which Ms.
Cary was charged, section 36.02(a)(1) and (2), do not apply when the alleged
“benefit” offered or conferred is “a political contribution as defined by Title 15,
Election Code.” Tex. Pen. Code § 36.02(d). In this case, however, the State’s
evidence for the alleged benefit falls squarely within the phrase, “political
contribution as defined by Title 15, Election Code.” Accordingly, the evidence of
bribery is insufficient because the State failed to prove bribery beyond a reasonable
doubt by something other than a political contribution.
Title 15 of the Election Code defines a “political contribution” as “a
campaign contribution or an officeholder contribution.” Tex. Election Code §
251.001(5). A “campaign contribution” is “a contribution to a candidate or
political committee that is offered or given with the intent that it be used in
connection with a campaign for elective office.” Tex. Election Code § 251.001(3).
A “contribution” is “a direct or indirect transfer of money, goods, services, or any
other thing of value and includes an agreement made or other obligation incurred,
whether legally enforceable or not, to make a transfer. The term includes a loan or
extension of credit, other than those expressly excluded by this subdivision….”
Tex. Election Code § 251.001(2). Neither of the express exclusions apply here.
Appellant's Brief--Page 19
In other words, a “political contribution” includes a direct or indirect transfer of
anything of value, including a loan, that is offered or given to a candidate or
political committee with the intent that it be used in connection with a campaign
for elective office.
Since a “political contribution” is an exception to the subsections charged,
under the Texas Penal Code, the State had to negate the exception in the indictment
and prove beyond a reasonable doubt that Ms. Cary committed bribery through
something other than political contributions. See Tex. Penal Code § 2.02 (b). The
indictment only charged bribery other than by a political contribution. See
Superseding Indictment, Counts I-VII. Accordingly, the jury was not instructed
on, and did not return a verdict on, bribery under the much stricter standard
required for political contributions, and the evidence would have been insufficient
had they been so charged. The State’s proof, however, not only failed to negate
bribery by political contribution beyond a reasonable doubt, but its theory and
evidence could only potentially support bribery by political contribution.
In this case, according to the State’s own theory, the “benefit” that Ms.
Wooten allegedly received under the bribery statute was money that was
transferred from the Ms. Cary’s accounts to Mr. Spencer and then to the Wooten
campaign for use by the campaign to pay for campaign expenses. According to the
State, this was done at times when the campaign had not otherwise raised enough
Appellant's Brief--Page 20
money to pay the bills. Thus, the State’s own theory of bribery was that the benefit
was a direct or indirect transfer of value with the intent that it be used to benefit the
campaign—a “political contribution as defined by Title 15, Election Code.”
For example, in opening statement, the prosecutor described the State’s
theory and evidence as follows:
So, what Stacy Cary did was she, with her means, she secretly
financed a candidate, Suzanne Wooten, to run against the presiding
judge of the 380th Judicial District Court, Charles Sandoval.
TR 3 at 12. Referring to the instances in the Superseding Indictment’s
bribery counts in which Ms. Cary transferred money to Mr. Spencer, the
prosecutor continued:
But in those instances, what is that money used for? That money is
used to run Suzanne Wooten's campaign. Without this money,
Suzanne Wooten can't fund her campaign, and it was a very expensive
campaign, over a hundred thousand dollars.
TR 3 at 21. The prosecutor also characterized “all this money that went to Stephen
Spencer” that “came from Stacy Cary” as “de facto loans” to the Wooten
campaign. TR 3 at 22.
At trial, the State’s accounting and summary witness, Kyle Swihart,
combined the documentary evidence into charts to support this theory. Mr.
Swihart used State’s Exhibit 94, a summary chart, to argue that Ms. Cary
transferred money to Mr. Spencer, that Mr. Spencer used the money for Wooten
campaign expenses, and that Mr. Spencer later invoiced the campaign when the
Appellant's Brief--Page 21
campaign had raised the money to reimburse him. TR 11 at 7720 (Exh. 94); TR 6
at 212-13, TR 7 at 9-17, 19-41 (Swihart testimony explaining Exhibit 94). Mr.
Swihart testified:
Q: Does there appear -- can you see any explanation for how the
expenses are being billed or given to Ms. Wooten?
A: It appears that he will bill for an amount that seems like she is
able to pay out of her campaign account on that date.
TR 7 at 59.
Mr. Swihart continued:
Q. So, then the benefit then would be a short-term-no-interest
loan?
A. If you want to characterize it as that, I mean, that's one way to
characterize it. All I know is when you see the money that came
from Stacy Cary and then it was used by Stephen Spencer to
benefit the campaign, I think that speaks for itself.
TR 7 at 224.
In closing argument, the prosecutor reiterated that, under the bribery statute
as charged, the alleged “benefit” to the “recipient” (Ms. Wooten), was money that
went to the Wooten campaign to pay for campaign expenses. According to the
prosecutor, “But when we look at all of this money that [Stacy Cary] gave
[Stephen Spencer], it's clear -- and Stephen Spencer will even say this that without
Stacy Cary's money, Suzanne Wooten has no campaign.” TR 9 at 41-42; see also
TR 9 at 44 (“And if we look at this, we can actually see these are real expenses
Appellant's Brief--Page 22
[Mr. Spencer] used on the campaign.”). And again in closing, the prosecutor
referred to the money that Mr. Spencer spent on the campaign as a loan facilitated
by Stacy Cary’s money: “It's in effect an interest-free loan. If [Ms. Wooten] lent
the money to her campaign herself, she doesn't get it back.”
As the foregoing demonstrates, the State’s theory and evidence was that the
benefit was a direct or indirect transfer of value with the intent that it be used to
benefit the campaign—squarely within the definition of a “political contribution as
defined by Title 15, Election Code.” Tex. Penal Code §36.02(d).
Additionally, by failing to charge bribery by political contribution under
section 36.02(a)(4), as it should have, the State avoided the stringent proof
requirements of that subsection, which the State clearly did not meet. See
Dissenting Opinion at 11.
The Majority Opinion in the Court of Appeals does not dispute this. It
argues, however, that the transfers exceeded the amount of allowable contributions
and were not properly reported by the Wooten campaign. See Majority Op. at 62.
Whether they were reported, not reported, not reported properly, legal, or illegal,
however, does not change the fact that they are still “political contributions as
defined by Title 15, Election Code.” See Tex. Penal Code § 36.02(d) (emphasis
added). As the Dissent correctly points out, “the definitions of ‘contribution,’
‘campaign contribution,’ and ‘political contribution’ do not incorporate these other
Appellant's Brief--Page 23
legal requirements. In other words, an illegal political contribution is still a
political contribution.” Dissenting Opinion at 12 (emphasis added). This is so for
at least two reasons.
First, the “Definitions” in Title 15 of the Election Code are in section
251.001. That section defines “political contribution” only in terms of its nature
and purpose—a direct or indirect transfer of anything of value, including a loan,
that is offered or given to a candidate or political committee with the intent that it
be used in connection with a campaign for elective office. On the other hand, the
various rules governing permissible amounts and required reporting of a “political
contribution,” which govern whether the contribution is legal or illegal, are set out
in subsequent sections of Title 15. They do not change the definition of “political
contribution” in section 251.001.
Second, the bribery statute itself evinces an intent to exclude all “political
contribution[s]” from sections 36.02(a) (1), (2), and (3), regardless of whether they
comply with the rules for political contributions or not. Section 36.02(d) of the
bribery statute excludes from those subsections “a political contribution as defined
by Title 15, Election Code, or an expenditure made and reported in accordance
with Chapter 305, Government Code,” which deals with lobbying. Tex. Penal
Code § 36.02(d) (emphasis added). Thus, the Legislature required lobbying
expenditures under Chapter 305 of the Government Code to comply with the rules
Appellant's Brief--Page 24
and reporting requirements of that chapter in order to be excluded, but it did not do
so for political contributions. This indicates that the Legislature intended all
“political contributions,” whether or not they were made and reported in
accordance with Title 15 of the Election Code, to be excluded from sections
36.02(a)(1), (2), and (3).
In the appeal of Stacy Cary’s husband’s case, a different three-judge panel of
the Dallas Court of Appeals unanimously reversed all of David Cary’s convictions.
The court agreed that the State had failed to prove bribery by something other than
a political contribution beyond a reasonable doubt. David Cary was charged with
the same crimes as Stacy Cary, but his trial was separate and took place after hers.
The State relied on the same theories and generally the same evidence in David
Cary’s case. The Dallas Court of Appeals held: “We conclude that the State’s
evidence proved that the only benefits to Wooten were the transfers from Stacy
Cary to Spencer, which the State argued were payments made to fund her
campaign. As a result, the State did not meet its burden to prove bribery beyond a
reasonable doubt by something other than a political contribution.” App. A (Cary
v. State, No. 05-13-01010, slip op. at 11 (Tex. App.—Dallas, March 25, 2015)).
The main difference between this appeal and David Cary’s appeal is that this
“political contribution” issue was unassigned error in Ms. Cary’s appeal, whereas it
was specifically raised in David Cary’s appeal. Nevertheless, in this appeal,
Appellant's Brief--Page 25
Justice FitzGerald raised the “political contribution” issue in his dissent and would
have reversed Ms. Cary’s convictions based on it.
This Court can and should reverse Ms. Cary’s convictions despite the fact
that this error was unassigned. The Court has repeatedly reaffirmed its
fundamental ability to review unassigned errors in the interests of justice. See,
e.g., Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) (affirming
ability to review unassigned errors); Carter v. State, 656 S.W.2d 468, passim (Tex.
Crim. App. 1983) (en banc) (same).
The dissent in the Court of Appeals eloquently sets forth the reasons for
reviewing this error:
A serious concern is that the bench and bar will construe the majority
opinion as approval of a prosecution brought under sections
36.02(a)(1) and (a)(2), notwithstanding that the foundation of the case
is built upon political contributions. Another concern is that the State
failed to prove a substantial and critical element of the offense. Not
only did the State fail to prove an element, the State also proved
appellant was not guilty of the crime charged. By disproving an
element, that is, by proving the funds were political contributions, the
State proved appellant did not commit and could not have committed
the offenses charged and thus could not legally be convicted of a
criminal offense under sections 36.02(a)(1) and (a)(2). A conviction
for conduct that does not constitute an offense under the law is an
injustice we may not ignore. Bribery charges, as serious as they are,
must be properly brought and proved under the appropriate statutory
provisions.
The State, in seeking a conviction under sections 36.02(a)(1) and
(a)(2), sidestepped the obligation imposed by section 36.02(a)(4) to
produce direct evidence of an express agreement and ignored the clear
application of section 36.02(a)(4). An affirmance gives the seal of
Appellant's Brief--Page 26
approval to a completely misdirected and unsupported prosecution
and conviction that are not supported by law.
Dissenting Opinion at 8-9. In addition, it would be a serious injustice if the results
in Stacy Cary’s and David Cary’s cases were different because of a fundamental
error that was unassigned in one case but raised in the other.
B. Issue 2: The Evidence Was Insufficient To Prove The Requisite
Official Action Intended To Be Exchanged For The Alleged Benefit, As
Required By The Bribery Statute.
The bribery statute requires that the alleged benefit to the recipient must be
intended to be “consideration,” “for the recipient’s decision, opinion,
recommendation, vote, or other exercise of discretion as a public servant,” in the
case of subsection (a)(1), or “as consideration for the recipient’s decision, vote,
recommendation, or other exercise of official discretion in a judicial or
administrative proceeding”, in the case of subsection (a)(2). Tex. Penal Code §
36.02(a)(1) (2).4 Here, there was insufficient evidence to support the three types of
consideration charged.
This Court has held that the "as consideration for" language in Penal Code
section 36.02(a)(1) and (a)(2), refers to “a bilateral agreement--in effect an illegal
contract to exchange a benefit as consideration for the performance of an official
4
The bribery statute states that "[a] person commits an offense if he intentionally or knowingly
offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from
another...any benefit as consideration for the recipient's decision, opinion, recommendation, or
vote, or other exercise of discretion as a public servant, party official, or voter [or in a judicial or
administrative proceeding]." Tex. Pen. Code § 36.02(a)(1), (a)(2).
Appellant's Brief--Page 27
function." McCallum v. State, 686 S.W.2d 132, 136 (Tex. Crim. App. 1985).
Because the statute proscribes “offering” or “agreeing to confer” a benefit in
exchange for official consideration, the benefit need not actually be accepted by
the public official, but there must be proof beyond a reasonable doubt that the
benefit was at least offered to the public official in exchange for the
consideration. See Martinez v. State, 696 S.W.2d 930, 933 (Tex. App.—Austin
1985, pet. ref’d).
The indictment charged, and the jury was instructed on, three possible types
of consideration from Ms. Wooten in return for the alleged benefit of money
transferred to her campaign: (1) becoming a candidate for judge; (2) continuing to
run for judge; and (3) making favorable rulings as a judge. Superseding
Indictment, Counts I-VII; TR 9 at 11; see Dissenting Opinion at 15-20. The
evidence of each was insufficient.
First, becoming a candidate for judge cannot satisfy the consideration under
the bribery statute because the bribery statute does not apply to a decision by a
citizen to become a candidate. The relevant subsection of the bribery statute
requires a benefit "as consideration for the recipient's decision, opinion,
recommendation, vote, or other exercise of discretion as a public servant, party
official, or voter." Tex. Pen. Code § 36.02(a)(1).5 In deciding to become a
5
Section 36.02(a)(2) does not apply to elections. It applies only to “a judicial or administrative proceeding.”
Appellant's Brief--Page 28
candidate, Ms. Wooten was not, and was not alleged to have been, a “party official
or voter.” In making a decision to run for office, she was not a “public servant,”
either.
The Texas Penal Code defines "public servant" as including "a candidate for
nomination or election to public office." Tex. Pen. Code § 1.07(a)(41). "Public
servant," however, does not include a potential candidate or someone who has not
yet become a candidate, which is what Ms. Wooten was when she decided to
become a candidate. See Dissenting Opinion at 15.
The Majority Opinion does not dispute this. Instead, it assumes this
argument to be correct, without deciding, and relies on the other two types of
alleged consideration. See Majority Opinion at 51-52.
Second, there was no evidence to support the idea that a benefit was
conferred to Ms. Wooten for her to continue to be a candidate at some time after
she had become a candidate and therefore a “public official.” For example, there
was no evidence that Ms. Wooten considered dropping out of the race or that
anyone thought she needed inducement to stay in once she became a candidate.
There was evidence that Ms. Cary transferred money to Spencer who spent it on
the campaign and that Ms. Wooten did not drop out of the race, but this is not
nearly enough to show specific intent. As the Dissent explains:
But the State did have to prove that appellant or someone in league
with appellant conferred benefits on Wooten as consideration for—
Appellant's Brief--Page 29
that is, in exchange for—Wooten’s staying in the race….Absent
evidence that appellant, her husband, or Spencer conferred benefits on
Wooten with the intent of accomplishing an exchange of benefits for
Wooten’s decision to stay in the race, any finding that appellant, her
husband, or Spencer had the proscribed intent is based on speculation,
not evidence, and certainly not proof beyond a reasonable doubt.
Dissenting Opinion at 16-17 (citing McCallum v. State, 686 S.W.2d 132, 135-36
(Tex. Crim. App. 1985) (reversing a conviction in which a litigant bought
champagne for a juror because there was insufficient evidence that the benefit was
“in exchange for or in consideration of her vote as a juror”).
Third, the evidence was insufficient to show that the transfers from Ms. Cary
to Mr. Spencer, which were used to fund the campaign, were consideration for
favorable rulings by Ms. Wooten as a judge. There was evidence that Ms. Cary’s
husband believed that the trial judge in his child custody dispute, who Ms. Wooten
ran against, was vindictive and biased against him. Indeed, there was substantial
evidence that the judge, Charles Sandoval, had a reputation for being vindictive
and biased and was considered one of the worst judges in the State. TR 4 at 95-96,
TR 6 at 35-36, TR 8 at 45, 55. There was also evidence that the opposing counsel
in Mr. Cary’s child custody case was known to be very close to Judge Sandoval
and one of his strongest supporters. TR 8 at 45. There was not, however, evidence
that Ms. Wooten had any idea that the Carys were involved with Spencer or were
transferring money to him. Thus, she would not have known for whom to rule
favorably.
Appellant's Brief--Page 30
There was no evidence that Ms. Wooten even knew the Carys or had any
idea that either one of them was involved in paying Mr. Spencer. For example, the
State’s exhaustive review of email and phone records failed to reveal a single
communication between Ms. Wooten and either of the Carys. See TR 11 (State’s
Exhs 77-83 (Wooten, Spencer, D. Cary, S. Cary phone records); State’s Exhs 8A-
C, 11-15, 17-20, 22-23, 29, 35, 40, 72, 154-55, 160, 172, 201-203 (emails
introduced). Indeed, the evidence affirmatively demonstrates that Ms. Wooten did
not know about the Carys or what they were doing and that the Carys did not
believe she did. It showed that Mr. Spencer “partitioned off” Ms. Wooten from the
Carys. TR 6 at 43. It also showed that Mr. Spencer never mentioned the Carys to
Ms. Wooten, and that she did not know about their relationship with Mr. Spencer.
TR 6 at 39-40, 42-43. Specifically, Mr. Spencer did not tell Ms. Wooten that the
Carys were paying him money. TR 6 at 43.
There was no contrary evidence. Even the State’s own investigator, after
being asked about whether Ms. Wooten knew anything about the Carys, did not
identify any evidence or information suggesting that she did. TR 7 at 238-39.
There was also no evidence that either of the Carys, and particularly Ms.
Cary, erroneously believed that Ms. Wooten knew of their involvement with
Spencer. Thus, there is no evidence that the judge who was supposedly bribed for
favorable rulings knew who was doing the alleged bribing, or that the people who
Appellant's Brief--Page 31
allegedly wanted favorable rulings, in particular Ms. Cary, thought the judge knew
who they were.
As the Dissent put it, “The evidence is equally consistent with the
proposition that appellant merely hoped or believed that Wooten would make
better rulings than Judge Sandoval had. Under McCallum,6 such evidence is not
sufficient to prove bribery.” Dissenting Opinion at 18.
The evidence about what happened after Ms. Wooten became a judge
supports the lack of any bribery. When Judge Wooten had an opportunity to
preside over David Cary's divorce/child custody case—the matter that was of
extreme importance to him--she recused herself sua sponte because Mr. Cary’s
opposing counsel had been Judge Wooten’s campaign treasurer, which Judge
Wooten thought could have made her appear biased against Mr. Cary. TR.11 at
1734 (State Tr. Ex. 7); Tr. 11 at 2460 (State Tr. Ex. 64 at 3-4).
Judge Wooten did not recuse herself from a lawsuit between Ms. Cary and a
lawyer for Mr. Cary’s ex-wife, and she made some discovery rulings both for and
against Ms. Cary in that case, but she did nothing that could in any way suggest
bribery. See Dissent at 17-18. Moreover, Ms. Cary voluntarily dismissed that case
before any rulings on the merits, demonstrating that the case had no importance at
all compared to Mr. Cary’s child custody case. TR 3 at 215-17.
6
McCallum v. State, 686 S.W.2d 132, 134-35 (Tex. Crim. App. 1985).
Appellant's Brief--Page 32
Under the Jackson7 standard of sufficiency review, "juries are not permitted
to come to conclusions based on mere speculation or factually unsupported
inferences or presumptions." Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App.
2007). This is the only way, however, that a jury could have found the requisite
consideration.
C. Issue 3: The evidence was insufficient to prove that Ms. Cary had the
requisite intent to commit bribery.
In pertinent part, the bribery statute requires that the defendant "intentionally
or knowingly offers, confers, or agrees to confer...any benefit as consideration for
the recipient's decision, opinion, recommendation, vote, or other exercise of
discretion as a public servant" or “in a judicial or administrative proceeding.” Tex.
Pen. Code § 36.02(a)(1), (2). An offer to a public servant of a benefit alone might
violate the gift statute, but it is not a bribe. See Hubbard v. State, 668 S.W.2d 419,
421 (Tex. App—Dallas 1984, pet. granted on other grounds) (distinguishing
bribery and gift statutes). The plain language of the bribery statute requires that
the defendant must intend or know that the benefit is "consideration for" an action
or decision by the public servant acting as a public servant.
The law of parties under section 7.02(a) of the Texas Penal Code does not
change the intent requirement for a substantive crime. Under section 7.02(a),
7
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see Winfrey v.
State, 2013 Tex. Crim. App. LEXIS 431, 10-12 (Tex. Crim. App. Feb. 27, 2013) (recognizing
Jackson).
Appellant's Brief--Page 33
every person charged with a crime must be shown beyond a reasonable doubt to
have the same intent that the crime requires. See Ex parte Thompson, 179 S.W.3d
549, 553-54 (Tex. Crim. App. 2005) ("What matters under § 7.02(a) is the criminal
mens rea of each accomplice; each may be convicted only of those crimes for
which he had the requisite mental state."). "[A defendant] is criminally responsible
for the offense committed by [a co-defendant] only if the evidence shows that she
knew [the co-defendant's] unlawful intent when she acted to promote or assist in his
conduct." Hill v. State, 883 S.W.2d 765, 771 (Tex. App.--Amarillo 1994, pet.
ref'd) (emphasis in original).
In this case, it requires speculation to conclude that any bribery occurred at
all. The State’s theory is that Mr. Spencer delayed sending bills until the
campaign’s fundraising could catch up, so that the “benefit” was being able to
spend money earlier than the campaign otherwise should have. There was no
evidence, however, that Ms. Wooten knew anything about this alleged benefit
because there was no evidence that she understood that expenses allegedly should
have been recognized earlier.
As speculative as the existence of bribery was, the idea that Ms. Cary knew
about it or had the specific intent “to promote or assist it,” as required, is even
further removed. See Tex. Penal Code § 7.02(a). Even in the light most favorable
to the State, there was no evidence that Ms. Cary knew what Mr. Spencer was
Appellant's Brief--Page 34
doing with the money she transferred beyond perhaps generally using it for the
Wooten campaign. Even assuming for the sake of argument that someone offered
Ms. Wooten a benefit in exchange for an official action (of which there is no
evidence), there is no evidence that Ms. Cary knew anything about it.
Intent to provide benefits to a campaign or even to violate campaign finance
laws is not intent to commit bribery. As the Dissent explains, “For all the evidence
shows, appellant may have helped finance Wooten’s campaign in the mere hope of
influencing Wooten—or in the mere hope of defeating Judge Sandoval—without
knowledge of any agreement Spencer may have struck with Wooten and without
any intent to promote any such illegal agreement.” Dissenting Opinion at 20. The
Dissent correctly concluded that there was insufficient evidence of intent in this
case. See id.
D. Issue 4: The Evidence Was Insufficient To Support Ms. Cary's
Conviction For Engaging In Organized Criminal Activity And Money
Laundering.
1. The Evidence of Engaging In Organized Criminal Activity Was
Insufficient Because The Evidence Of The Predicate Offenses Was
Insufficient.
Count I of the Superseding Indictment charges Engaging in Organized
Criminal Activity ("EOCA"), under section 71.02(a) of the Texas Penal Code. The
evidence was insufficient to sustain Ms. Cary's conviction because there was
Appellant's Brief--Page 35
insufficient evidence of the predicate offenses under the EOCA statute that are
charged in the Superseding Indictment.
In order to commit the crime of EOCA, the Texas Penal Code requires, in
pertinent part, proof beyond a reasonable doubt that a person "establish, maintain,
or participate in a combination...to commit or conspire to commit one or more of" a
list of predicate crimes. Tex. Pen. Code § 71.02(a). The predicate crimes are an
essential element of the crime. Id.
In this case, the State charged three possible predicate crimes: bribery,
money laundering, and tampering with a government record. Superseding
Indictment, Count I. The evidence for each is insufficient to sustain a conviction
of EOCA.
a. Predicate Offense Of Bribery.
The evidence was insufficient to sustain bribery as a predicate crime for the
reasons set forth above.
b. Predicate Offense Of Money Laundering.
The evidence of money laundering as a predicate offence for EOCA is
insufficient because the Superseding Indictment charges bribery as the only
predicate criminal activity for money laundering, and the evidence of bribery is
insufficient.
Appellant's Brief--Page 36
The relevant portion of the Texas money laundering statute makes it a crime
if a person "knowingly...finances or invests or intends to finance or invest funds
that the person believes are intended to further the commission of criminal
activity." Tex. Pen. Code § 34.02(a)(4). For purposes of this case, "[c]riminal
activity" means a felony offense. Tex. Pen. Code § 34.01(1).
The only predicate "criminal activity" alleged in the Superseding Indictment
in the EOCA count for money laundering is bribery. Superseding Indictment,
Count I. The evidence is insufficient to sustain bribery as a predicate criminal
activity for the reasons set forth above.
c. Predicate Offense Of Tampering With A Government
Record.
The third predicate crime for EOCA is tampering with a government record
under section 37.10(a)(5) of the Texas Penal Code. That section makes it a crime
if a person "makes presents, or uses a governmental record with knowledge of its
falsity." Tex. Pen. Code §37.10(a)(5).
The Superseding Indictment charges Ms. Cary with engaging in organized
activity based on the following allegation:
Tampering with a Government Record, in that Suzanne H.
Wooten did then and there, with intent to defraud and harm another,
namely, the State of Texas, the Texas Ethics Commission, and the
citizens of Texas, intentionally and knowingly make, present, and use
a governmental record with knowledge of its falsity, to-wit: prepared,
swore, and affirmed a Personal Financial Statement that was
submitted to the Texas Ethics Commission and did not list and report
Appellant's Brief--Page 37
all gifts and loans, as required by Texas Government Code Sec.
572.023, omitting the Defendant, David Cary, and James Stephen
Spencer under the heading "Gifts," and the heading "Personal Notes
and Lease Agreements," when in truth and in fact, [Ms. Wooten] had
received gifts and loans from the Defendant, Stacy Stine Cary, and
James Stephen Spencer during the calendar year 2008....
Superseding Indictment, Count I.
The tampering with a government record predicate crime was based on Ms.
Wooten’s Personal Financial Statement—a document that a candidate must file.
See Superseding Indictment, Count I. The State’s theory was that the payments
made from Stacy Cary to Spencer, some of which Spencer used to pay for
campaign expenses, should have been reported on Ms. Wooten’s Personal
Financial Statement as gifts or loans to Ms. Wooten personally. See Tex.
Government Code § 572.023(a) (describing the personal financial statement as an
accounting of the individual’s financial activity).
To prove a violation of EOCA based on tampering with a government record
under Texas Penal Code §37.10(a)(5), the State had to prove that Ms. Cary, Ms.
Wooten, and at least one other person agreed that Ms. Wooten would fill out the
Personal Financial Statement, knowingly omit information required to be
disclosed, and intend to harm/defraud someone in doing so. See Opokuofosu v.
State, 1998 Tex. App. LEXIS 903, *16 (Tex.App. – Texarkana 1998, pet. ref’d)
(“[A] conviction under Section 37.10(a)(5), (d) requires a showing of the
knowledge of the document’s falsity and the intent to harm or defraud.”).
Appellant's Brief--Page 38
As an initial matter, the evidence is insufficient to prove that the Personal
Financial Statement was false. It is important to note that the Superseding
Indictment concerns Ms. Wooten’s Personal Financial Statement, as opposed to a
campaign finance report. According to the Texas Government Code, the Personal
Financial Statement concerns the financial activity of the individual and his or her
family, rather than the campaign. Section 572.023(a) states: “A financial
statement must include an account of the financial activity of the individual
required by this subchapter to file a financial statement and an account of the
financial activity of the individual’s spouse and dependent children if the
individual had actual control over that activity during the preceding calendar year.”
Tex. Government Code § 572.023(a) (emphasis added). Accordingly, the
reporting of gifts or loans on the Personal Financial Statement applies to gifts or
loans to the candidate, not to the campaign. See id.
Here, according to the State’s theory, the supposed gifts or loans were the
payments from Stacy Cary to Mr. Spencer that he used to pay for campaign
expenses. TR 9 at 44. Those were all reimbursed from campaign funds. TR 7 at
185-86. There were no transfers, payments, or loans to Ms. Wooten at all. Thus,
there were no unreported loans or gifts to Ms. Wooten, individually. The State
went to great lengths to try to show that Ms. Wooten’s campaign disclosures were
Appellant's Brief--Page 39
incorrect, but the State did not prove that her Personal Financial Statement was
false.
Additionally, at trial, there was no evidence that Ms. Cary had even heard of
a Personal Financial Statement, much less knew the information they had to
include, or how Ms. Wooten was filling hers out. There was certainly no evidence
that Ms. Cary had any input into Ms. Wooten’s Personal Financial Statement.
There was also no evidence that Ms. Cary knew that money spent on Ms.
Wooten’s campaign allegedly should have been characterized as a personal loan or
gift to Ms. Wooten. The State’s underlying explanation was that expenses paid by
a campaign consultant must be recognized by the campaign when the consultant
pays the expense, or when the amount of the expense is determinable, rather than
after the consultant sends the campaign a bill, and if they are not recognized at that
time, then they should be considered a loan or a gift. But there was no evidence
that Ms. Wooten, much less Ms. Cary, knew or should have known this supposed
rule.
The Majority Opinion by the Court of Appeals in this case did not address
the sufficiency of evidence of tampering with a government record. The Dissent,
however, correctly concludes that “there is no evidence in the record that appellant
intentionally participated in any combination for the purpose of having Wooten
Appellant's Brief--Page 40
commit the offense of tampering with a government record.” Dissenting Opinion
at 21.
In David Cary’s appeal, the panel of the Dallas Court of Appeals
unanimously agreed that the evidence of tampering with a government record was
insufficient on a materially identical factual record. The court held:
We conclude that the State offered no evidence that Wooten’s
Personal Financial Statement omitted alleged loans and gifts from
[David Cary], Stacy Cary, or Spencer because there is no evidence of
loans or gifts from them to Wooten individually. We further conclude
that the State offered no evidence of appellant’s knowledge that
Wooten allegedly falsified her Personal Financial Statement.
App. A (Cary v. State, No. 05-13-01010, slip op. at 15-16 (Tex. App.—Dallas,
March 25, 2015).
There was insufficient evidence to support tampering with a government
record.
2. The Evidence Of Money Laundering Was Insufficient.
Count VIII of the Superseding Indictment charges money laundering in
violation of section 34.02(a)(4) of the Texas Penal Code. Superseding Indictment,
Count VIII. As set forth above, money laundering requires a predicate crime, and
bribery was the only predicate crime that Count VIII charges. For the reasons set
forth above, there is insufficient evidence of bribery. Therefore, the evidence of
money laundering is insufficient.
Appellant's Brief--Page 41
CONCLUSION
Ms. Cary respectfully requests that the Court reverse her convictions.
Respectfully submitted,
____/s/ John M. Helms____________
John M. Helms
Texas Bar No. 09401001
BRODEN, MICKELSEN, HELMS &
SNIPES, LLP
2600 State Street
Dallas, Tx 75204
Tel: (469) 951-8496
Fax: (214) 720-9594
john@johnhelmslaw.com
ATTORNEY FOR APPELLANT,
STACY STINE CARY
CERTIFICATE OF SERVICE
This certifies that a true and correct copy of this instrument has been served
on counsel of record on May 15, 2015, as follows:
Joseph Corcoran (lead appellate counsel) (via ECF and electronic mail)
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711
____/s/ John M. Helms____________
John M. Helms
Appellant's Brief--Page 42
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9(i)(3) of the Texas Rules of Appellate Procedure, I hereby
certify that the word count of this reply brief, excluding the list of excluded
sections under Rule 9(i)(1), is 9,788. I have relied on the word count of the
computer program used to prepare the document for this word count.
____/s/ John M. Helms____________
John M. Helms
Appellant's Brief--Page 43
APPENDIX A
Appellant's Brief--Page 44
REVERSE and ACQUIT; and Opinion Filed March 25, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01010-CR
DAVID CARY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-81636-2011
OPINION
Before Justices Bridges, Lang-Miers, and Myers
Opinion by Justice Lang-Miers
Appellant David Cary was charged with eight felonies—six counts of bribery, one count
of money laundering, and one count of engaging in organized criminal activity. After finding
appellant guilty as charged, the jury assessed concurrent sentences of fourteen years in prison for
each offense. On appeal appellant argues that (1) the evidence is legally insufficient to support
his convictions, (2) he received ineffective assistance of counsel, and (3) the bribery statute is
unconstitutional. We conclude that the State’s evidence is legally insufficient to support
appellant’s convictions. We reverse the trial court’s judgments and render judgments of
acquittal.
BACKGROUND
Appellant’s convictions arise from the same evidence presented by the State in the
previous trial of his wife, Stacy Stine Cary. We described all of the evidence at great length in
our opinion in Stacy Cary’s appeal. See Cary v. State, No. 05-12-01421-CR, 2014 WL 4261233
(Tex. App.—Dallas Aug. 28, 2014, pet. granted) (not designated for publication). Because the
parties agree that the records in both cases are nearly identical, 1 we do not re-describe all of the
evidence again here. Instead, we discuss pertinent evidence below as it pertains to the issues we
must decide in this appeal.
ISSUES ON APPEAL
Appellant raises six issues on appeal (several of which are different from the issues raised
in Stacy Cary’s appeal). In his first issue, appellant argues that the evidence is legally
insufficient to support his bribery convictions because (1) the State’s evidence proved an
exception to the bribery statute, (2) there was no evidence of consideration, and (3) there was no
evidence of intent. In his second issue, appellant argues that the evidence is legally insufficient
to support his conviction for engaging in organized criminal activity because there was
insufficient evidence of the alternative predicate offenses of bribery, money laundering, and
tampering with a governmental record. In his third issue, appellant argues that the evidence is
legally insufficient to support his conviction for money laundering because there was insufficient
1
According to the State, the records are “materially identical.” According to appellant, the only difference is that the following additional
evidence was presented in appellant’s case only:
• The jury heard evidence that the judge who was appointed to preside over appellant’s modification proceeding
after Suzanne Wooten recused herself made decisions in favor of appellant, including ordering that the children
should live with appellant.
• James Stephen Spencer explained and put into context the email exchange between him and appellant dated
June 9, 2009, concerning the Supreme Court’s June 8, 2009 decision in Caperton v. A.T. Massey Coal Co., 556
U.S. 868 (2009). Spencer testified that the reason he was interested in the Caperton decision was because of his
ongoing concerns about the Family Law Foundation’s potential influence over a judge in Tarrant County.
• The jury heard evidence that Wooten planned to voluntarily recuse herself in cases in which a party was
represented by someone from her former law firm for approximately nine months after she separated from her
firm, and the motion to recuse Wooten in Stacy Cary’s case against Jennifer Cary was filed around the time her
self-imposed decision to recuse was supposed to expire.
• Rick Robertson testified that while Wooten was on the bench he “found her to be a judge to follow the law,”
and there was nothing about her rulings that would suggest that she had been bribed.
• Two witnesses for the State testified that Wooten was ethical and had a strong reputation for ethics.
–2–
evidence of the sole predicate offense of bribery. In his fourth issue, appellant argues that he
received ineffective assistance of counsel because his counsel admittedly failed to timely amend
appellant’s sentencing election so that punishment could be assessed by the trial court, which
caused appellant to receive a longer sentence. In his fifth issue, appellant argues that the bribery
statute is unconstitutional as applied because it impermissibly burdened his First Amendment
right to exercise political speech. In his sixth issue, appellant argues that the bribery statute is
facially unconstitutional because it is vague and overbroad. We only address appellant’s first
three issues because our resolution of those issues is dispositive of this appeal.
STANDARD OF REVIEW
In evaluating the legal sufficiency of the evidence to support a criminal conviction,
“reviewing courts are obliged to view all of the evidence in the light most favorable to the jury’s
verdict, in deference to the jury’s institutional prerogative to resolve all contested issues of fact
and credibility.” Delay v. State, 443 S.W.3d 909, 912 (Tex. Crim. App. 2014). But sometimes,
as in this case, “appellate review of legal sufficiency involves simply construing the reach of the
applicable penal provision in order to decide whether the evidence, even when viewed in the
light most favorable to conviction, actually establishes a violation of the law.” Id.
BRIBERY
Applicable Law
The bribery statute at issue in this case provides as follows:
(a) A person commits an offense if he intentionally or knowingly offers, confers,
or agrees to confer on another, or solicits, accepts, or agrees to accept from
another:
(1) any benefit as consideration for the recipient’s decision, opinion,
recommendation, vote, or other exercise of discretion as a public servant,
party official, or voter;
(2) any benefit as consideration for the recipient’s decision, vote,
recommendation, or other exercise of official discretion in a judicial or
administrative proceeding;
–3–
(3) any benefit as consideration for a violation of a duty imposed by law on a
public servant or party official; or
(4) any benefit that is a political contribution as defined by Title 15, Election
Code, or that is an expenditure made and reported in accordance with Chapter
305, Government Code, if the benefit was offered, conferred, solicited,
accepted, or agreed to pursuant to an express agreement to take or withhold a
specific exercise of official discretion if such exercise of official discretion
would not have been taken or withheld but for the benefit; notwithstanding
any rule of evidence or jury instruction allowing factual inferences in the
absence of certain evidence, direct evidence of the express agreement shall be
required in any prosecution under this subdivision.
(b) It is no defense to prosecution under this section that a person whom the actor
sought to influence was not qualified to act in the desired way whether because he
had not yet assumed office or he lacked jurisdiction or for any other reason.
(c) It is no defense to prosecution under this section that the benefit is not offered
or conferred or that the benefit is not solicited or accepted until after:
(1) the decision, opinion, recommendation, vote, or other exercise of
discretion has occurred; or
(2) the public servant ceases to be a public servant.
(d) It is an exception to the application of Subdivisions (1), (2), and (3) of
Subsection (a) that the benefit is a political contribution as defined by Title 15,
Election Code, or an expenditure made and reported in accordance with Chapter
305, Government Code.
(e) An offense under this section is a felony of the second degree.
TEX. PENAL CODE ANN. § 36.02 (West 2011) (internal footnote omitted).
The Indictment
The indictment charged appellant with bribery in counts two through seven in connection
with six separate payments from Stacy Cary to James Stephen Spencer, Suzanne Wooten’s
campaign manager. For example, count two alleged that appellant,
on or about January 4, 2008, . . . did then and there intentionally and knowingly
offer, confer, and agree to confer a benefit, other than a political contribution as
defined by Title 15, Election Code, or an expenditure made and reported in
accordance with Chapter 305 of the Government Code, to-wit: $50,000 to
Suzanne H. Wooten, a public servant, to-wit: a candidate for the office of Judge
of the 380th Judicial District Court and presiding Judge of the 380th Judicial
District Court, as consideration for Suzanne H. Wooten’s decision, opinion,
–4–
recommendation, vote, or other exercise of discretion as a public servant, and as
consideration for Suzanne H. Wooten’s decision, vote, recommendation, and
other exercise of official discretion in a judicial proceeding, to wit: filing
paperwork to run for Judge, proceeding and continuing with a campaign to unseat
the incumbent elected Judge of the 380th Judicial District Court, and as Judge of
the 380th Judicial District Court presiding over and issuing favorable rulings in
cases in which [appellant] and Stacy Stine Cary are parties[.]
The allegations in the other five bribery counts differed only with respect to the date and amount
of the transfer. The payments totaled $150,000 and occurred between January 4 and March 14,
2008. The jury charge tracked the indictment and instructed the jury that appellant could be
found guilty as a principal or as a party to the offenses of bribery.
Analysis
Appellant was charged with bribery under penal code sections 36.02(a)(1) and
36.02(a)(2). As a result, the exception for political contributions found in section 36.02(d)
applies, and under section 2.02(b) of the penal code, 2 it was the State’s burden to prove beyond a
reasonable doubt that the benefits to Wooten, in this case the payments to Spencer, were
something other than political contributions. In his first issue, appellant argues that the evidence
is legally insufficient to support his bribery convictions because the State failed to satisfy that
burden. We agree.
We begin by looking to the relevant definitions in Title 15 of the Texas Election Code.
Shown in context, the relevant provisions of the election code provide:
(2) “Contribution” means a direct or indirect transfer of money, goods,
services, or any other thing of value and includes an agreement made or other
obligation incurred, whether legally enforceable or not, to make a transfer. The
term includes a loan or extension of credit, other than those expressly excluded by
this subdivision, and a guarantee of a loan or extension of credit, including a loan
described by this subdivision. The term does not include:
2
Section 2.02(b) of the penal code states, “The prosecuting attorney must negate the existence of an exception in the accusation charging
commission of the offense and prove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception.”
TEX. PENAL CODE ANN. § 2.02(b) (West 2011).
–5–
(A) a loan made in the due course of business by a corporation that is legally
engaged in the business of lending money and that has conducted the business
continuously for more than one year before the loan is made; or
(B) an expenditure required to be reported under Section 305.006(b),
Government Code.
(3) “Campaign contribution” means a contribution to a candidate or political
committee that is offered or given with the intent that it be used in connection
with a campaign for elective office or on a measure. Whether a contribution is
made before, during, or after an election does not affect its status as a campaign
contribution.
(4) “Officeholder contribution” means a contribution to an officeholder or
political committee that is offered or given with the intent that it be used to defray
expenses that:
(A) are incurred by the officeholder in performing a duty or engaging in an
activity in connection with the office; and
(B) are not reimbursable with public money.
(5) “Political contribution” means a campaign contribution or an officeholder
contribution.
(6) “Expenditure” means a payment of money or any other thing of value and
includes an agreement made or other obligation incurred, whether legally
enforceable or not, to make a payment.
(7) “Campaign expenditure” means an expenditure made by any person in
connection with a campaign for an elective office or on a measure. Whether an
expenditure is made before, during, or after an election does not affect its status as
a campaign expenditure.
TEX. ELEC. CODE ANN. § 251.001(2)–(7) (West 2010) (emphasis added).
Boiled down, the State’s theory in this case was that the Carys secretly funded Wooten’s
campaign for elective office. And the only evidence of a benefit to Wooten in this case was that
Stacy Cary gave money to Spencer and Spencer used it in connection with Wooten’s campaign.
During opening statements, for example, the State told the jury,
Without Stacy Cary’s money that was given to Stephen Spencer, Suzanne Wooten
does not win. Suzanne Wooten spends money on signs. She spends money on
radio ads. She spends money on print ads. She spends money on direct mailers.
She hires a consultant. None of these things are possible without the money being
given to her.
–6–
During its case in chief, the State proved its theory through testimony and documentary
evidence. During Spencer’s direct examination by the State, for example, he repeatedly
acknowledged that he used the money he received from Stacy Cary to pay for Wooten’s
campaign expenditures. Spencer’s testimony was consistent with State’s Exhibit 94, a
compendium exhibit created by the State’s fraud examiner, Kyle Swihart. Exhibit 94 shows the
timing of the payments from Stacy Cary to Spencer, and which campaign expenses were paid
using the money. Swihart testified at length about the evidence summarized in State’s Exhibit
94. For example, with respect to the transfer of $50,000 from Stacy Cary to Spencer on January
4, Swihart explained that it was immediately used to pay Wooten’s campaign consultant, Hank
Clements:
Q. All right. We’ve got these two payments to Hank Clements totaling
$15,000, which happen to be just a few days after this $50,000 comes in.
Absent this money from Stacy Cary, does Stephen Spencer have the
money to pay for Hank Clements?
A. No.
Q. And absent this money from Stacy Cary, does Suzanne Wooten’s
campaign have the money to pay for Hank Clements?
A. No.
With respect to the transfer of $25,000 from Stacy Cary to Spencer on February 4, Swihart
testified that it was used to pay for additional campaign expenditures:
Q. Okay. And then there’s another -- appears to be another transfer from
Stacy Cary?
A. Yes, of $25,000 that posted to his account on February 4th of 2008.
Q. All right. Now, after that post[ed] to his account, does he cut several more
cashier’s checks?
A. Yes, he does.
Q. Can you tell us what those cashier’s checks are?
A. It would be the Plano Profile cashier’s check on February 5th.
–7–
Q. Okay.
A. The Cartwright Signs check on February 5th. Actually both of those
together there for $3877 and $4036. And then the last Cartwright
expenditure on February 8th of 2008.
Q. All right. So, absent this $25,000 from Stacy Cary, does Stephen Spencer
have the funds to get these cashier’s checks?
A. No, he does not.
Likewise, with respect to the transfer of $25,000 from Stacy Cary to Spencer on February 15,
Swihart testified that it was used to pay campaign expenditures:
Q. Okay. Now, the next thing I’d like to ask you about is this next transfer
from Stacy Cary.
A. The one on February 15th?
Q. Yes, sir. Can you tell me about that?
A. That is another transfer that occurred. I believe that one may have been via
check. And that occurred on February 15th.
Q. Okay. And so his balance after that transfer of $25,000 is how much?
A. It’s $25,000.92.
Q. And so that occurs on the 15th. And on the 20th, does he draw two
checks?
A. Yes, he does.
Q. Okay. And what are those checks for?
A. Those are for radio ads for KVIL and KRLD.
Q. And absent this $25,000 that he receives from Stacy Cary, does he have
the funds to pay for these advertisements?
A. No, he does not.
Q. Okay. And absent this $25,000 from Stacy Cary, does the Suzanne
Wooten Campaign account have the funds to pay for these
advertisements?
A. No.
–8–
Finally, during closing argument, the State told the jury that Stacy Cary’s money was not
a political contribution because it “never goes into [Wooten’s] account. It’s never reported.”
The State argues on appeal that the payments to Spencer for Wooten’s benefit should not
be considered political contributions because the evidence demonstrates that appellant
“deliberately engaged in several deceptive practices to prevent the funds from being traced to
him.” We must confine our analysis, however, to the definitions found in the election code. And
under the definition of “political contribution” in the election code, no exception is made for
covert indirect transfers of money.
Additionally, under the applicable definitions in the election code, the money did not
need to be transferred directly to Wooten’s campaign account, nor did it need to be properly
reported in Wooten’s campaign filings, in order for it to constitute a political contribution.
Instead, if Stacy Cary transferred money to Spencer with the intent that it be used in connection
with Wooten’s campaign, then, by definition, the money is a political contribution.
The State also argues that a conclusion that the benefits to Wooten were political
contributions would lead to an absurd result because it would mean that anyone could covertly
and indirectly fund a judge’s campaign in exchange for the candidate’s agreement to rule in his
favor, as long as there is no evidence of an express agreement. We disagree. We are not
sanctioning the conduct in this case, nor are we concluding that it was lawful. Instead, we
conclude that the State did not satisfy its burden under the specific language in section 36.02 of
the penal code and Title 15 of the election code. See TEX. PENAL CODE ANN. § 36.02; TEX.
ELEC. CODE ANN. § 251.001(2)–(7).
The State also argues that a rational jury could have found that appellant did not intend
for the transfers to Spencer to be used in connection with Wooten’s campaign, and instead
intended that the payments to Spencer “be used to obtain, by any means necessary, (1) a person
–9–
who would challenge the incumbent judge of the 380th Judicial District Court, despite the odds
stacked against succeeding in such a challenge, and/or (2) a judge who would rule favorably in
Appellant’s custody and visitation proceedings, and/or rule in favor of his wife Stacy.” The
State contends that because of a difference between the amount Spencer spent on Wooten’s
campaign and the amount she reimbursed him, the jury could have inferred “that Appellant had
no specific intent that every payment made by his wife be used specifically in connection with
the campaign.” But the State charged appellant with bribing Wooten, the State’s theory was that
the Carys funded Wooten’s campaign, and the jury was asked whether the payments were made
to Wooten as consideration for various actions on her part, including issuing rulings favorable to
the Carys.
We recognize that the majority did not reach this conclusion in Cary. See 2014 WL
4261233, at *33–34. In that appeal, however, Stacy Cary did not raise the same issues as those
presented here. For example, Stacy Cary did not raise the issue of whether the State failed to
prove that the transfers from her to Spencer were not political contributions. Instead, Stacy Cary
affirmatively argued in her appeal that the transfers to Spencer were compensation for services
rendered under a consulting agreement. And the majority’s discussion of unassigned error raised
by the dissent was obiter dictum and not material to the majority’s resolution of Stacy Cary’s
appeal.
We conclude that the State’s evidence proved that the only benefits to Wooten were the
transfers from Stacy Cary to Spencer, which the State argued were payments made to fund her
campaign. As a result, the State did not meet its burden to prove bribery beyond a reasonable
–10–
doubt by something other than a political contribution. 3 We resolve appellant’s first issue in his
favor, reverse the convictions for bribery, and render judgments of acquittal.
MONEY LAUNDERING
A person commits the offense of money laundering if he “knowingly finances or invests
or intends to finance or invest funds that the person believes are intended to further the
commission of criminal activity.” TEX. PENAL CODE ANN. § 34.02(a)(4) (West 2011). In this
case the State alleged that appellant,
on or about and between January 4, 2008 and March 14, 2008, . . . did then and
there, pursuant to one scheme and continuing course of conduct, knowingly
finance, invest, and intend to finance and invest funds that [appellant] believed
were intended to further the commission of criminal activity, to-wit: Bribery, and
the aggregate value of said proceeds was $100,000 or more but less than
$200,000[.]
In his third issue, appellant argues that the evidence is legally insufficient to support his
conviction for money laundering because there is “insufficient evidence of the only predicate
offense—bribery.” The State was not required to prove bribery in order to convict appellant of
money laundering. Instead, the State was only required to prove that appellant believed he was
furthering the commission of bribery. But in this case, the State’s only evidence was that
appellant believed Stacy Cary was making what constitutes political contributions under the
election code. And the political contributions Stacy Cary made are subject to the exception
under the bribery statute. As a result, there is no evidence that appellant believed he was
furthering the commission of bribery. We resolve appellant’s third issue in his favor, reverse the
conviction for money laundering, and render a judgment of acquittal.
3
Because we conclude that the exception to the bribery statute was not negated, we do not need to address appellant’s alternative arguments
that the evidence is legally insufficient to support his bribery convictions because there is no evidence of consideration or intent.
–11–
ENGAGING IN ORGANIZED CRIMINAL ACTIVITY
A person commits the offense of engaging in organized criminal activity “if, with the
intent to establish, maintain, or participate in a combination or in the profits of a combination,
. . . the person commits or conspires to commit one or more [enumerated offenses].” See TEX.
PENAL CODE ANN. § 71.02(a) (West Supp. 2014). In this case the State alleged that appellant
engaged in organized criminal activity by committing or conspiring to commit three predicate
offenses: bribery, money laundering, and tampering with a governmental record. See id. §§ (9)
(bribery), (10) (money laundering), (13) (tampering with a governmental record).
We have concluded that the evidence is insufficient to support the convictions for bribery
and money laundering; consequently, those predicate offenses will not support the conviction for
engaging in organized criminal activity. The sole remaining alleged predicate offense is
tampering with a governmental record.
The Indictment
In the indictment the State alleged that appellant engaged in organized criminal activity
by tampering with a governmental record as follows:
on or about and between September 19, 2007 and October 20, 2009, . . . with
intent to establish, maintain, and participate in a combination and in the profits of
a combination of three or more persons, namely, [appellant], Suzanne H. Wooten,
Stacy Stine Cary, and James Stephen Spencer, did commit and conspire to
commit the following offenses:
...
Tampering with a Government Record, in that Suzanne H. Wooten did then
and there, with the intent to defraud and harm another, namely, the State of Texas,
the Texas Ethics Commission, and the citizens of Texas, intentionally and
knowingly make, present, and use a governmental record with knowledge of its
falsity, to-wit: prepared, swore, and affirmed a Personal Financial Statement that
was submitted to the Texas Ethics Commission and did not list and report all gifts
and loans, as required by Texas Government Code Sec. 572.023, omitting
[appellant], Stacy Stine Cary, and James Stephen Spencer under the heading
“Gifts,” and the heading “Personal Notes and Lease Agreements,” when in truth
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and fact [Wooten] had received gifts and loans from [appellant], Stacy Stine Cary,
and James Stephen Spencer during the calendar year 2008;
and in furtherance of the conspiracy to commit said offenses [appellant]
performed one or more overt acts, to-wit: communicated with other members of
the combination, and organized, planned, and supervised the other members of the
combination . . . .
See id. §§ 37.10(a)(5), 71.02(a)(13).
The governmental record at issue here is Wooten’s Personal Financial Statement for
calendar year 2008 that she filed with the Texas Ethics Commission as part of her judicial
campaign. The State argued that appellant, Wooten, and at least one other person committed and
conspired to commit tampering with a governmental record, specifically, falsifying Wooten’s
Personal Financial Statement by omitting loans and gifts she received from appellant, Stacy
Cary, and Spencer.
Applicable Law
The government code requires a candidate or officeholder to file a Personal Financial
Statement and, in that report, to disclose personal loans over $1,000 and personal gifts over $250
made or given to the reporting individual, the reporting individual’s spouse, or the reporting
individual’s dependent child. TEX. GOV’T CODE ANN. § 572.023(a)(5), (7) (West 2012). As
charged in this case, a person commits the offense of tampering with a governmental record if
the person makes, presents, or uses a Personal Financial Statement with knowledge of its falsity
and with intent to defraud or harm another. See TEX. PENAL CODE ANN. § 37.10(a)(5); State v.
Vasilas, 198 S.W.3d 480, 484 (Tex. App.—Dallas 2006), aff’d, 253 S.W.3d 268 (Tex. Crim.
App. 2008).
“Gift,” “personal loan,” and “personal note” are not defined in the statute. The ordinary
meaning of “gift” is a voluntary transfer of property to another made gratuitously and without
consideration. Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007, pet.
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denied). The elements of a gift are (1) the intent to make a gift; (2) delivery of the property; and
(3) acceptance of the property. Id. The ordinary meaning of “loan” is “money lent at interest.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1326 (1981). And “note” means “a
written or printed paper acknowledging a debt and promising payment.” Id. at 1544. The State’s
campaign finance expert, Ian Steusloff, testified that he understood “personal note” to include a
“document that states that you agree to pay a specific amount to another person[.]”
Analysis
In his second issue, appellant argues that there is no evidence of unreported loans or gifts
to Wooten individually; there is no evidence Wooten’s Personal Financial Statement was false;
and there is no evidence appellant knew about the existence or contents of Wooten’s Personal
Financial Statement. We agree.
All of the State’s evidence, indeed its entire theory, was that the money Stacy Cary
transferred to Spencer was used to benefit Wooten’s judicial campaign. But the State’s ethics
expert testified that the Personal Financial Statement applied only to loans and gifts to the
candidate, not to the campaign. And the State did not present any evidence that appellant, Stacy
Cary, or Spencer directly or indirectly gave money to Wooten individually. In fact, Swihart, the
State’s fraud expert who investigated this case for four years, agreed that “there’s not a single
payment that went from either Dave or Stacy Cary to Suzanne Wooten” and “there’s not even a
situation where there’s been a payment from either [of] the Carys to a third party who then
turned around and forwarded that money to Judge Wooten[.]” Steusloff testified that he was
sitting in the courtroom for a majority of the witnesses’ testimony and he had “not heard of any
gifts.” And he agreed that if there was no evidence Wooten received a gift, then checking “Not
Applicable” under “Gifts” on the Personal Financial Statement would be correct.
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Having reviewed the entire record, we conclude that the State did not offer any evidence
that appellant, Stacy Cary, or Spencer intended to make a gift of money to Wooten individually,
that appellant, Stacy Cary, or Spencer delivered a gift of money to Wooten, or that Wooten
accepted a gift of money from appellant, Stacy Cary, or Spencer.
We also conclude that the State did not offer any evidence that appellant, Stacy Cary, or
Spencer loaned Wooten money. Wooten’s Personal Financial Statement disclosed a loan to
Wooten individually from Bank of America, and Swihart testified that “[a]s far as [he knew]”
that was the only loan for Wooten’s campaign. The State offered no evidence that Wooten
signed a personal note in favor of appellant, Stacy Cary, or Spencer. And Steusloff testified that
he believed to constitute a personal note “as a minimum, there would need to be a document that
said ‘I, Suzanne Wooten, promise to pay.’” The State offered no such document. We conclude
that the State offered no evidence of a personal note or personal loan to Wooten individually.
Additionally, the State did not offer any evidence that appellant knew about the Personal
Financial Statement, knew Wooten had to file such a statement, knew what the statement was
required to include, or knew what Wooten disclosed when she filed it. The State concedes that
there is “no direct evidence of [a]ppellant’s knowledge of Wooten’s campaign records or record
filing requirements,” but it argues that the jury could have inferred based on appellant’s “blatant
disregard for complying with any [reporting] restrictions [that] [a]ppellant must have intended
for Wooten to omit him, his wife, and/or Spencer from her Personal Financial Statement as the
bulk of her campaign resources.” Based on this record, any such inference amounts to mere
surmise or suspicion.
We conclude that the State offered no evidence that Wooten’s Personal Financial
Statement omitted alleged loans and gifts from appellant, Stacy Cary, or Spencer because there is
no evidence of loans or gifts from them to Wooten individually. We further conclude that the
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State offered no evidence of appellant’s knowledge that Wooten allegedly falsified her Personal
Financial Statement. Because there is no evidence to support any of the alleged predicate
offenses, the conviction for engaging in organized criminal activity cannot stand. We resolve
appellant’s second issue in his favor, reverse the conviction for engaging in organized criminal
activity, and render a judgment of acquittal.
CONCLUSION
We conclude that the evidence is legally insufficient to sustain appellant’s convictions for
bribery, money laundering, and engaging in organized criminal activity. We reverse appellant’s
convictions and render judgments of acquittal. As a result, we do not need to address appellant’s
remaining arguments.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Publish
TEX. R. APP. P. 47.2(b)
131010F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAVID CARY, Appellant On Appeal from the 366th Judicial District
Court, Collin County, Texas
No. 05-13-01010-CR V. Trial Court Cause No. 366-81636-2011.
Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee Justices Bridges and Myers participating.
Based on the Court’s opinion of this date, the judgments of the trial court are
REVERSED and the appellant is hereby ACQUITTED.
Judgment entered this 25th day of March, 2015.
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Cary, Stacy Stine
Combined Opinion