Cary, Stacy Stine

PD-1341-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
July 6, 2015 Transmitted 7/6/2015 3:28:21 PM
Accepted 7/6/2015 4:04:17 PM

No. PD-1341-14
ABEL ACOSTA
CLERK
______________________________

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
______________________________

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
______________________________

BRIEF FOR THE STATE
______________________________
KEN PAXTON *JOSEPH P. CORCORAN
Attorney General of Texas Assistant Attorney General
Supervising Attorney
CHARLES E. ROY for Non-Capital Appeals
First Assistant Attorney General Criminal Appeals Division
State Bar No. 00793549
ADRIENNE McFARLAND Joseph.Corcoran@TexasAttorneyGeneral.gov
Deputy Attorney General
for Criminal Justice *Lead Appellate Counsel
P. O. Box 12548, Capitol Station
EDWARD L. MARSHALL Austin, Texas 78711
Chief, Criminal Appeals Division Telephone: (512) 936-1400
Facsimile: (512) 936-1280
_____________________________
ATTORNEYS FOR THE STATE
 TABLE OF CONTENTS
Page
TABLE OF CONTENTS .......................................................................... ii

INDEX OF AUTHORITIES ..................................................................... v

STATEMENT OF THE CASE ................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ................................. 2

STATEMENT OF THE ISSUES .............................................................. 2

STATEMENT OF FACTS ........................................................................ 2

SUMMARY OF THE ARGUMENTS ..................................................... 12

ARGUMENT .......................................................................................... 14

I. STATE’S REPLY TO ISSUE ONE: The Court Should Affirm
the Lower Court Because a Reasonable Juror Could Have
Found—As This Jury Actually Found—That Appellant Did
Not Intend Her Payments to Spencer to Constitute “Political
Contributions,” Irrespective of How the Money was
Ultimately Spent ............................................................................ 14

A. Appellant should be estopped from complaining
that the jury was not instructed about, or required
to return a verdict on, the stricter statutory proof
standard for bribery .............................................................. 15

B. Standard of review for sufficiency of the evidence
challenges. ............................................................................. 19

ii
 TABLE OF CONTENTS, Continued

C. Applicable law to establish bribery ...................................... 21

1. As charged here, bribery is an inchoate
offense........................................................................... 21

2. The law of parties......................................................... 26

D. A rational juror could have concluded, beyond a
reasonable doubt, that Appellant did not intend
the illicit payments to constitute “political
contributions,” irrespective of how those payments
were actually used................................................................. 28

1. Appellant misconstrues the statute ............................ 28

2. Appellant misapplies Jackson ..................................... 33

II. STATE’S REPLY TO ISSUE TWO: The Court Should Affirm
the Court of Appeals Because a Reasonable Juror Could Have
Found Sufficient Evidence of Bribery —As This Jury Actually
Found—Because Proof of a Bilateral Agreement Is Not a Pre-
Condition Under All Parts of the Bribery Statute ....................... 48

A. Appellant again misconstrues both the statute and
the test for legal sufficiency .................................................. 38

B. When reviewing all evidence and reasonable
inferences therefrom, in favor of the jury’s verdict,
Appellant’s argument fails.................................................... 40

iii
 TABLE OF CONTENTS, Continued

III. STATE’S REPLY TO ISSUE THREE: The Court Should
Affirm the Lower Court Because a Reasonable Juror Could
Have Found—As This Jury Actually Found—the Evidence
was Sufficient to Show that Appellant Had the Requisite
Intent to Commit Bribery .............................................................. 48

IV. STATE’S REPLY TO ISSUE FOUR: The Court Should Affirm
the Court of Appeals Because a Reasonable Juror Could Have
Found—As This Jury Actually Found—Sufficient Evidence to
Support Appellant’s Conviction for Engaging in Organized
Criminal Activity and Money Laundering .................................... 51

PRAYER FOR RELIEF .......................................................................... 52

CERTIFICATE OF SERVICE ................................................................ 53

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF
APPELLATE PROCEDURE 9.4 ............................................................ 54

iv
 INDEX OF AUTHORITIES

Cases

Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) ..................... 27

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................. 19, 34

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ..................... 20

Ervin v. State, 331 S.W.3d 49 (Tex. App.–Houston [1st Dist.] 2010) .... 20

Garza v. State, 841 S.W.2d 19 (Tex. App.—Dallas 1992)....................... 20

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011) .................... 19, 20

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) ........................ 35

Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) ................ 21, 49

Hayes v. State, 265 S.W.3d 673 (Tex. App.–Houston [1st Dist.] 2008) . 26

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .......................... 20

Hubbard v. State, 668 S.W.2d 419 (Tex. App.—Dallas 1984) ................ 24

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) ......................... 20

Jackson v. Virginia, 443 U.S. 307 (1979) .................................... 12, 20, 33

Levine v. Steve Scharn Custom Homes, Inc., 448 S.W.3d 637 (Tex. App.—

Houston [1st Dist.] 2014) ..................................................................... 35

Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002)....................... 27

v
Martinez v. State, 696 S.W.2d 930 (Tex. App.—Austin 1985)22, 24, 25,

39

McCallum v. State, 686 S.W.2d 132 (Tex. Crim. App. 1985) ........... 12, 22

Montoya v. State, 810 S.W.2d 160 (Tex. Crim. App. 1989) .................... 27

Mustard v. State, 711 S.W.2d 71 (Tex. App.—Dallas 1986) .................. 24

Patterson v. State, 950 S.W.2d 196 (Tex. App.—Dallas 1997)............... 27

Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ....................... 35

Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999).................. 16, 32

Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1994) ..................... 28

Ripkowski v. State, 61 S.W.3d 378 (Tex. Crim. App. 2001) ............. 16, 19

Sowells v. State, 270 S.W. 558 (1925) ..................................................... 38

Trenor v. State, 333 S.W.3d 799 (Tex. App.–Houston [1st Dist.] 2010) 27

Statutes

Tex. Election Code § 251.001 .................................................................. 29

Tex. Pen. Code Ann. §§ 7.01(a), 7.02(a)(2) ........................................ 26, 47

Tex. Penal Code § 2.02(a) ........................................................................ 16

Tex. Penal Code § 36.02(a)(2) .................................................................. 21

Tex. Penal Code § 36.02(a)(4) .................................................................. 15

vi
Tex. Penal Code § 36.02(d) ...................................................................... 16

Other Authorities

Model Penal Code § 240.1 ....................................................................... 24

vii
 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, Stacy Stine

Cary (Appellant), was convicted of all eight counts alleged in her

superceding indictment as follows: one count of engaging in organized

criminal activity (EOCA), six counts of bribery, and one count of money

laundering. CR 314–24, 1119–58; 9 RR 57–60.1 Appellant was sentenced

in each count to ten years’ incarceration, probated over ten years, with

the condition that she serve 30 days in jail, and assessed a $10,000 fine.

CR 1119–58. Appellant appealed. CR 1114–15.

A divided panel of the Dallas Court of Appeals affirmed all

convictions. Two justices voted to affirm. Cary v. State, No. 05-12-01421-

CR, 2014 WL 4261233, at *37 (Tex. App.—Dallas Aug. 28, 2014). The

dissenting justice would have reversed all convictions. Id. at *49.

1 “CR” refers to the Clerk’s Record—the transcript of pleadings and documents
filed with the clerk during trial and is followed by page number. “RR” refers to the
Reporter’s Record of the transcribed trial proceedings which occurred June 18, 2012
through June 27, 2012, and on October 11, 2012, and is preceded by volume number
and followed by page number.
1
 This Court granted Appellant’s petition for discretionary review

(PDR) on the four issues identified below. Order, Stacy v. State, PD-1341-

14 (Tex. Crim. App. Mar. 25, 2015).

STATEMENT REGARDING ORAL ARGUMENT

The Court has already indicated that it would permit oral

argument. Id. The State joins Appellant’s request for oral argument.

STATEMENT OF THE ISSUES

The Court granted PDR on the first four grounds raised by

Appellant, as follows:

1. Whether the State affirmatively proved Appellant’s innocence by
proving that the alleged bribes were “Political Contributions?”

2. Whether the evidence was sufficient to show the requisite
consideration intended to support the bribery convictions?

3. Whether the evidence was sufficient to show that Appellant had
the requisite intent to commit bribery?

4. Whether the evidence was sufficient to support Appellant’s
conviction for EOCA and money laundering?

STATEMENT OF FACTS

This appeal ultimately turns on the meaning and weight of

circumstantial evidence, which, by its very nature, is grounded in

2
plausible inference and argument. Because Texas Rule of Appellate

Procedure 38.1(g) does not permit a party to advance “argument” in the

Statement of Facts, however, the State will use this section to provide a

brief overview of the relevant facts—reserving its inferential analysis to

its argument section below. So, too, and in the interests of brevity, the

State respectfully directs the Court to the majority’s thorough and

lengthy description of proceedings at trial, below.

Count One alleged that Appellant worked in combination with her

husband David Cary; judicial candidate and ultimately judge-elect

Suzanne Wooten; and Wooten’s campaign manager James Stephen-

Spencer, in committing bribery, money laundering, or tampering with a

government record. CR 315–17. Counts Two through Seven alleged that

Appellant bribed Wooten in exchange for Wooten entering the judicial

race, continuing her campaign for judge, and presiding over and issuing

favorable rulings in cases to which Appellant and her husband were a

party. CR 317–22. Count Eight alleged Appellant was funding the

criminal activity of bribery. CR 322.

3
 Appellant was a joint owner in several petroleum-related business

ventures with her siblings, working mostly on the business side rather

than directly in the oil fields; she also owned her own business. 4 RR 59,

6 RR 118, 8 RR 215–16, 225. She married David Cary, a father of twin

daughters with special needs, from a previous marriage. 3 RR 54, 61.

David was embroiled in a heated custody battle with his ex-wife Jennifer

Cary, which began six months after their divorce proceedings were

finalized in late 2004. 3 RR 51–62, 81–85, 107–11, 175. Ultimately, the

judge presiding over the custody proceedings, Judge Sandoval, ruled in

favor of the ex-wife, and Appellant’s husband was removed as joint

managing conservator and ordered to pay $30,000 into an education fund

for his daughters, approximately $416,000 for his ex-wife’s legal fees, and

$50,000 in sanctions. 3 RR 75, 78–79, 82–85. After Appellant’s husband

failed to timely pay these fees, his ex-wife filed a collections suit with the

assistance of attorney Israel Suster. 3 RR 96–97. While the suit was

pending, Appellant paid $30,000 towards the twins’ education fund on

behalf of her husband. 3 RR 84. Under the assumption that Appellant’s

husband had access to the account from which Appellant withdrew the

4
$30,000, Mr. Suster reported Appellant’s account for “turnover,” which

was an investigation process into whether that asset could be used

towards the collection of the $416,000 in legal fees. 3 RR 167, 169–73,

188–92. But Appellant contested this turnover action, including filing a

countersuit in another court; ultimately though, citing a need to keep all

related litigation together, Appellant’s countersuit against Mr. Suster for

fraud was transferred to the 380th District Court, over which Judge

Sandoval presided. 3 RR 183–88, 157, 196–203; 11 RR 2479–84 (State’s

Exhibit (SX) 67), 8112–13 (SX 173).

After Appellant’s husband became frustrated with his losses in the

custody proceedings—including (1) his inability to transfer the case to

another court, (2) the denial of his motion to recuse Judge Sandoval, and

(3) the appointment of his ex-wife as sole managing conservator of their

twins—he and Appellant began searching for a broader solution to their

problems. 3 RR 66–68, 75, 93–95; 4 RR 14. After seeking assistance at

the Capitol in the fall of 2007, they were introduced to Spencer. 4 RR 12–

14, 17–18; 11 RR 1737–41 (SX 8A).

5
 The three met in October of 2007 at the Carys’ home, during which

time they discussed a broad range of topics, including Appellant’s

business interests. 4 RR 56–60, 63–64. At Appellant’s trial, Spencer

testified that no concrete plans were made between the couple and

Spencer regarding legislative action or Appellant’s businesses at the end

of their October 2007, two-hour meeting. Id. In grand jury proceedings

which occurred more than 4 years after that meeting, a contract dated

October 9, 2007, was produced that allegedly set out an agreement for

Appellant to pay Spencer $250,000 in exchange for his consulting services

in four areas unrelated to Wooten or Judge Sandoval. 4 RR 64–65; 2 11

RR 7763–65, 7894–96 (SX 130, 150, respectively). At Appellant’s trial,

the State pointed out discrepancies between the contract and Spencer’s

testimony—such as its suspicious near-identicality to a contract drawn

up in October 2009, executed between Spencer and another company for

2 Those tasks were purportedly: “(1) Assessment of a new pumping technology
for possible use and deployment in your field operations; and for possible investment
by you, personally; (2) Analysis of the U.S. electric marketplace, and potential
investment in SmartGrid-related ventures; (3) Assistance in assessing and securing
counsel in anticipation of and for contemplated litigation; and (4) Assessment and
proposal for family-centered advocacy, with an emphasis on parental rights.” SX 130,
150 at 1.
6
his consulting services—as well as discrepancies between the money

Spencer received and the invoices he had produced pursuant to the

contracted work. 5 RR 27–40, 214–22, 238–44; 6 RR 81–86; 11 RR 8236–

41 (SX 176), 7942–46 (SX 156).

Appellant made six payments to Spencer between January 4, 2008

and March 12, 2008, totaling $150,000. 5 RR 45. Spencer provided no

work product to Appellant during this period. 5 RR 31–37. Rather, he

testified that he began drafting a letter with an accompanying “investor

appeal” for Appellant in April 2008, identifying one business venture for

her pursuit, but which he provided sometime before August 1, 2008. 5 RR

128–30, 134–35; 11 RR 7776–97, 7898–7917 (SX 135, 151, respectively),

7810 (SX 137). In July 2008, he began working on a “summary analysis

of the U.S. Electric Grid Marketplace.” 5 RR 183–89, 11 RR 7799–7808,

7919–28 (SX 136, 152, respectively). Spencer also shared a slideshow

presentation with Appellant, detailing an approach to support their

interests in parental rights. 5 RR 190–206; 11 RR 7831–92 (SX 139). This

represented the bulk of the work Spencer purportedly did in exchange for

$150,000—a draft letter, a summary analysis, and a slideshow.

7
Appellant’s brother testified on her behalf at trial, indicating that

working in the oil business necessitated reliance on consultants, but

admitted that Appellant never shared with him the work performed by

Spencer, despite Appellant’s brother’s experience in the fields. 8 RR 212,

216, 235–36. Rather, he affirmed that he only knew about the two

companies briefed by Spencer because Appellant’s trial counsel shared

Spencer’s memoranda with him the week before trial. 8 RR 235–36.

Spencer testified 3 that one interest area he shared with the

coalition was unseating judges who did not appear to properly adhere to

the family code. 4 RR 52–53. After meeting with the Carys, Spencer

looked into the Cary family law proceedings and—based on that single

file—identified Judge Sandoval as one such judge who should be

3 Spencer was compelled to testify under Penal Code §71.04. 4 RR 30-34
(hearing granting Spencer testimonial immunity under Texas Penal Code Sec. 71.04);
4 RR 35 ([Spencer’s counsel] “[I]f you weren’t being compelled to testify under 71.04
at this point in time, would you invoke your Fifth Amendment right against self-
incrimination?” [Spencer]: “I would, sir.”). Spencer was still under indictment and
that there was no plea agreement in place between the State and Spencer. 4 RR 39-
40 (in which Spencer testifies before jury in direct examination that he is being
compelled to testify under a grant of testimonial immunity under the Texas Penal
Code; was charged with engaging in criminal activity, with bribery, and with money
laundering; and there was no “agreement between the State and [Spencer] or
[Spencer’s] attorney;” Spencer affirmed he understood that “nothing [he] can do here
today testifying is going to help [him] in whether or not the State prosecutes [him].”)
8
unseated. 4 RR 79–82, 88–93. However, Spencer testified he did not

discuss “the campaign with [the Carys]. [He] did not discuss [his]

business with the Carys with Suzanne.” 6 RR 42.

Spencer contacted Wooten in December 2007 to gauge her interest

in running against Judge Sandoval in the March 2008 election. 4 RR 136,

141–42, 147. Wooten was the third potential candidate whom Spencer

approached; the other two had declined. 4 RR 119–26, 131–33. Spencer

offered to act as her campaign manager, though he had never managed a

campaign before; however, he had spoken with experienced campaign

manager and campaign consultant Hank Clements, who agreed to work

as a subcontractor for Spencer. 4 RR 149–53, 183–84; 5 RR 43–44, 183–

84. After Wooten met with Clements, she conveyed her agreement to run

against Judge Sandoval to Spencer. 4 RR 155, 180–82. Spencer admitted

it would take a lot of resources to run a successful campaign against an

incumbent judge, and presented Wooten with a “beer” budget, consisting

of $60-70,000, and a “champagne” budget in the amount of $100-150,000.

4 RR 149–53; 5 RR 45, 47–48; 11 RR 1956 (SX 39), 1938 (SX 37).

9
 During the same period that Appellant paid Spencer $150,000.00,

ostensibly for Spencer’s unrelated consulting services, between January

4, 2008 and March 12, 2008, Wooten filed paperwork to run against

Judge Sandoval for the 380th Judicial District Court seat in Collin

County, and ultimately won the race. 5 RR 45, 76. Spencer denied that

Wooten knew anything about the Carys, denied that he was putting

Wooten in a difficult position and, instead, was “protecting her” by

“partitioning off the two,” since he “wasn’t going to shut down [his]

business to run a judicial campaign.” 6 RR 43.

An attorney with the Texas Ethics Committee, a state agency

responsible for overseeing financial reporting for lobbyists and

campaigns, among other duties, testified that judicial candidates have

statutory obligations to file certain financial reports. 6 RR 148–49, 151–

57. These reports must include the candidate’s personal resources, funds

raised from donors, and loans taken or given during the campaign, in

addition to campaign expenses and expenditures. 6 RR 151–53, 155, 157,

160, 162–68. Both Spencer’s bank accounts and Wooten’s campaign

account show that the campaign expenses they incurred, e.g. 6 RR 54–

10
60, 71, could not have been paid without the money provided by

Appellant. 7 RR 19, 26–33, 40. None of Wooten’s financial statements

listed the Carys or Spencer as donors or loan sources. 11 RR 2026–33

(SX 52), 2154–2432 (SX 62), 2434–59 (SX 63), 7730–40 (SX 97); 5 RR 176-

79; 7 RR 19, 56.

Jay Valentine, a former consultant for David Cary’s business,

testified that, “during the course of trying to hire [Spencer], [Appellant’s

husband, David Cary,] had said several times that the reason we were

going to hire Spencer was that he was the person who was able to fix

problems. And he said that Spencer was the person who had fixed his

situation with the judge, and was going to get his situation reversed.” 8

RR 74. Valentine also testified that when Spencer talked about his role

in the Wooten campaign, “Spencer’s comments were more braggadocios

than Cary’s were. Spencer’s comments were that he was able to get

Wooten elected and that he owned her. He used that word two or three

times. And that he – he used that as a reason for why he was able to get

things done as an example of, Look, this is the kind of stuff I can do.” 8

RR 76–77.

11
 SUMMARY OF THE ARGUMENT

Appellant’s arguments suffer from three fundamental defects.

First, Appellant misconstrues the measure for legal sufficiency under the

familiar test in Jackson v. Virginia. 4 Specifically, Appellant asks the

Court to re-weigh the evidence presented at trial in an effort to animate

a determination rejected by a properly-instructed jury, by resolving all

credibility choices and inferential conflicts against those explicit and

implicit determinations. This she cannot do. When the jury’s verdict is

analyzed pursuant to the correct legal measure, as the majority did

below, Appellant’s arguments fail.

Second, Appellant misconstrues both the bribery statute and this

Court’s decision in McCallum v. State.5 As charged here, bribery is an

inchoate offense criminalizing the simple transfer of money with corrupt

intent. It matters not whether there was a “meeting-of-the-minds”

between Appellant and Wooten; or even whether Appellant’s

expectations regarding Wooten’s behavior after the transfer of money

4 443 U.S. 307 (1979).
5 686 S.W.2d 132 (Tex. Crim. App. 1985).
12
were rational, or likely. Hence, Appellant’s effort to shift legal focus away

from her own acts and intentions, to examine whether Wooten acted in

conformity with Appellant’s hopes and expectations, is irrelevant.

Finally, much of Appellant’s argument is directed to establishing

legal insufficiency with respect to only some of the alternative theories in

the charge. To this end, she often narrows her focus to only those theories

that are, generally speaking, more difficult for the State to prove on this

record. But by selectively attacking only a subset of available theories

upon which the jury could convict, Appellant misses the mark. Here, the

simplest and most salient measure for legal sufficiency is whether a

rational juror could have believed, beyond a reasonable doubt, that when

Appellant made each of the six payments to Spencer, she hoped to obtain

favorable rulings from Wooten in pending cases in which Appellant or

her husband were parties. This is the simplest restatement of the

relevant question, at least on this record.6 When Appellant’s arguments

6 The State does not waive, and explicitly reserves, consideration of the
alternative theories of criminal liability for purposes of Jackson review. The State
focuses on this particular theory both because it exposes the weakness of Appellant’s
arguments, and because it is arguably the “easiest” measure of Jackson sufficiency.
13
are analyzed with reference to this simple question—as the majority did

below—legal sufficiency becomes apparent.

ARGUMENT

I. STATE’S REPLY TO ISSUE ONE: The Court Should Affirm the
Lower Court Because a Reasonable Juror Could Have Found—As
This Jury Actually Found—That Appellant Did Not Intend Her
Payments to Spencer to Constitute “Political Contributions,”
Irrespective of How the Money was Ultimately Spent.

With respect to the first issue, Appellant alleges that the evidence

adduced at trial is insufficient to sustain her six convictions for bribery.

See Appellant’s Br. at 18–27. Specifically, Appellant contends—in

contradiction to her position at trial—that the State’s evidence

established the payments made from her to Spencer were used to fund

Wooten’s campaign, and were, therefore, “political contributions.” See id.

at 20. Appellant also complains that “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.” Id. The State will address these

arguments in turn.

14
 A. Appellant should be estopped from complaining that the jury
was not instructed about, or required to return a verdict on,
the stricter statutory proof standard for bribery.

Appellant should be estopped from assigning error to the jury

charge. There are four basic alternatives to proving bribery under the

relevant statute, contained in four separate subsections of the Penal

Code: Section 36.02(a)(1) through (4). When prosecuting bribery under

the fourth subsection, the State has a significantly higher burden of

proof. See Tex. Penal Code § 36.02(a)(4). 7 And as relevant here, the State

is required to proceed under the fourth subsection in some circumstances.

Specifically, Section 36.02(d) reads:

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.

7 “[A]ny benefit that is a political contribution as defined by Title 15, Election
Code,1 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.” Tex. Penal
Code § 36.02(a)(4).
15
Tex. Penal Code § 36.02(d). Where a criminal statute expressly includes

a provision beginning with, “It is an exception to the application of,” the

State “must negate the existence of [that] 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 § 2.02(a), (b) (West 2013). For purposes of

this appeal the question then becomes whether a reasonable juror could

conclude, beyond a reasonable doubt, that the payments made by

Appellant were not “political contributions.”

But whether or not the jury was reasonable when it actually

determined that the State proved this element beyond a reasonable

doubt, Appellant should not here be permitted to complain about the lack

of the related instruction pursuant to the heightened standard of proof in

Penal Code § 36.02(d). “[T]he law of invited error estops a party from

making an appellate error of an action it induced.” Prystash v. State, 3

S.W.3d 522, 531 (Tex. Crim. App. 1999); see also Ripkowski v. State, 61

S.W.3d 378, 389 (Tex. Crim. App. 2001) (“Prystash subsequently

overruled Powell by holding that a party could estop himself from

16
complaining about the failure to submit any issue, regardless of the

nature of the issue involved.”).

Here, the defense theory at trial was that Appellant transferred the

relevant funds to Spencer to compensate him for his work under the

alleged consulting agreement; and that Appellant had no knowledge that

Spencer used that money in relation to Wooten’s decision to run for office,

whatsoever. This point bears repeating: Appellant’s position at trial was

necessarily that the payments were not intended as political

contributions because she paid Spencer for unrelated consulting services

and had no knowledge of Spencer’s activities in support of Wooten’s

campaign. See, e.g., 1 RR “Motion for Directed Verdict” 4–6. But she now

argues on appeal, that they were political contributions.

But if Appellant wanted the benefit of an instruction regarding the

heightened proof requirements in Penal Code § 36.02(d), she would have

had to concede to the jury—as she appears to concede on appeal—that

her payments pursuant to the consulting agreement were subterfuge,

fabricated several years after its purported effective date to provide a

false explanation for the transfers of money from Stacy to Spencer. But

17
such an approach would fundamentally contradict her theory of the

defense, and may well have been disastrous if pursued at trial. See, e.g.,

8 RR 212–13 (eliciting testimony from Appellant’s brother that he paid

one consultant “a lot of money” —$60,000 in the 1980’s—“[u]p front”),

219–24 (Appellant’s brother describing long-held practice of hiring

consultants in the oil and real estate businesses); 1 RR “Motion for

Directed Verdict” 6 (Appellant’s counsel arguing, “There’s just not an

issue of fact for the Court to send to a jury,” where Spencer testified, “‘I

screened them. They didn’t – Suzanne Wooten didn’t know about this

money or where it came from, or that it came from the Carys, or it came

from Stacy Cary.’”).

Moreover, Appellant’s defensive theory (i.e., that the payments to

Spencer were compensation for unrelated consulting services)

necessarily required the State to prove that the payments were made for

the benefit of Wooten, pursuant to Appellant’s corrupt intentions under

the bribery statute. In reliance on this theory of the defense, the

prosecutor attempted to disprove it by tracing those payments through

Spencer to Wooten, including Appellant’s knowledge thereto. Now—on

18
appeal—Appellant essentially advances a new jury-argument, one that

she affirmatively declined to pursue in the trial court. Appellant now

contends that a hypothetical, reasonable juror would be required to

conclude that the payments were political contributions, despite the fact

that she told the actual jury they were not.

Appellant should not be permitted to have it both ways. For this

reason Appellant should be estopped from complaining about the failure

of the jury charge to include the heightened proof requirements

attendant in Penal Code § 36.02(d). See Ripkowski v. State, 61 S.W.3d at

389.

B. Standard of review for sufficiency of the evidence challenges.

This Court has mandated that the sufficiency of evidence standard

established in Jackson v. Virginia, is the only standard to be used in a

criminal case. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010) (plurality op.); see Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim.

App. 2011). On review, all evidence, and any reasonable inferences from

that evidence is viewed in the light most favorable to the verdict, to

determine whether any rational trier of fact could have found the

19
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at

319; Gear, 340 S.W.3d at 746.

The jury is the exclusive judge of witness credibility and the weight

of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010). The reviewing court must resolve or reconcile conflicts in the

evidence in favor of the verdict. Id.; Jackson, 443 U.S. at 326. “An

appellate court determines whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.” Ervin

v. State, 331 S.W.3d 49, 55 (Tex. App.–Houston [1st Dist.] 2010, pet. ref’d)

(citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). The

appellate court must view both direct and circumstantial evidence

equally when reviewing the record based on a sufficiency of the evidence

claim. Jackson, 443 U.S. at 326; Hooper v. State, 214 S.W.3d 9, 16–17

(Tex. Crim. App. 2007). The reviewing court does not resolve any conflict

of fact, reweigh the evidence, or evaluate the credibility of the witnesses.

Garza v. State, 841 S.W.2d 19, 21 (Tex. App.—Dallas 1992, no pet.).

20
 Important, too, is when a court’s charge authorizes the jury to

convict on more than one theory—as the charge did here—the verdict of

guilty will be upheld if the evidence is sufficient on any one of the charged

theories. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). As

the State will establish below, application of the rule in Guevara is

especially important to understand the weakness in Appellant’s

approach.

C. Applicable law to establish bribery

1. As charged here, bribery is an inchoate offense.

As relevant to this case, a person commits bribery if she

intentionally or knowingly offers, confers, or agrees to confer on another,

any benefit as consideration for (1) the recipient’s decision, vote,

recommendation, or other exercise of official discretion in a judicial

proceeding, or (2) the recipient’s decision, opinion, recommendation, vote,

or other exercise of discretion as a public servant. Tex. Penal Code §

36.02(a)(2), (1) (West 2008)8 (respectively); see 2 CR 643–48. Also, as

8 Given that the law in effect at the time an offense is committed is controlling,
the State cites the relevant criminal statutes from 2008.
21
previously established, it is an exception to the application of either of

those provisions that the benefit is a “political contribution” as defined

by the Election Code. Id. at § 36.02(d).

When it is alleged under the bribery statute that an individual

offers, confers, or agrees to confer on another, and the jury is properly

instructed that proof of any one of the three alleged acts would warrant

conviction, no proof of a bilateral agreement is needed. Martinez v. State,

696 S.W.2d 930, 933 (Tex. App.—Austin 1985, pet. ref’d) (distinguishing

McCallum v. State, 686 S.W.2d 132 (Tex. Crim. App. 1985)).9 Appellant,

however, reads McCallum to stand for the proposition that the “as

consideration” language in the bribery statute means the State must

always prove “a bilateral agreement—in effect an illegal contract to

exchange a benefit as consideration for the performance of an official

9 “After careful consideration, we find that McCallum is factually and legally
distinguishable from the instant cause. In McCallum, the indictment alleged only
that the defendant conferred the benefit on the recipient. Under that indictment,
proof that the defendant offered the alleged benefit was not sufficient to convict. The
instant indictment, on the other hand, alleges that appellant solicited, agreed to
accept, and accepted the benefit from Zepeda, and the jury was properly instructed
that proof of any one of the three alleged acts would warrant conviction. Thus, it was
not necessary for the State to prove that appellant agreed to accept or accepted the
alleged benefit, and evidence that appellant merely solicited the benefit will support
the conviction.” Martinez, 696 S.W.2d at 932.
22
function.” See Appellant’s Br. at 16. Appellant seems to argue that, while

the public official need not actually “accept” that consideration, there

must be proof that a benefit was actually communicated to the official,

with a mutual understanding about what official performance the

defendant wanted “in exchange” for the consideration. See id. Hence,

Appellant focuses the majority of her brief on her contention that the

State failed to prove Wooten had a mutual understanding regarding

Appellant’s expectations, as purportedly evidenced by Wooten’s actions

after receiving Appellant’s consideration.

A careful analysis of the Court’s McCallum opinion, however,

establishes that Appellant is incorrect. See supra, note 9. And given this

confusion with the McCallum holding, this appeal is an opportunity for

the Court to clarify it in line with both Martinez, and the majority opinion

below. As the Third Court persuasively reasoned in this regard:

Under § 36.02, a person commits the offense of bribery
if he intentionally or knowingly offers or solicits a benefit as
consideration for a variety of official acts or omissions.
Common sense dictates that when it is alleged and proved
that the defendant offered or solicited a proscribed benefit, it
is not necessary to further prove that the offer or solicitation
resulted in a bilateral arrangement or unlawful contract with

23
 the other party. The offense of bribery is complete when the
offer or solicitation is made.

The relevant language of § 36.02 was taken verbatim
from § 240.1 of the Model Penal Code. In Model Penal Code §
240.1, Comment 4(a) (Official Draft and Revised Comments,
1980), it is stated:

The offense of bribery is defined in a manner
that includes a completed agreement between the
person who offers the bribe and the person who
receives it. It also permits prosecution of inchoate
conduct intended to achieve that objective. The
terms “offers” and “solicits” clearly refer to such
inchoate behavior and are designed to include
what might be regarded as an attempt to give or to
receive a bribe.

Martinez, 696 S.W.2d at 932–33 (emphasis added) (quoting Model Penal

Code § 240.1, Comment 4(b), (c)); accord Mustard v. State, 711 S.W.2d

71, 75 (Tex. App.—Dallas 1986, no pet.) (“The offense of bribery focuses

on the mental state of the actor, and is complete if a private citizen, by

offering, conferring, or agreeing to confer intends an agreement.”) (citing

Hubbard v. State, 668 S.W.2d 419, 421 (Tex. App.—Dallas 1984, pet.

granted)).

This approach makes particular sense given the manner in which

law enforcement entities often detect and prosecute bribery. Take, for

24
example, a hypothetical defendant who decides to bribe a judge to

influence the outcome of his own criminal prosecution. Assume that in

order to execute his scheme, the defendant unwittingly contacts and then

utilizes intermediaries, who are actually undercover police officers.

Indeed, assume the ultimate target of the bribe (i.e., the judge), was not

even aware of the undercover sting operation conducted by police to

document the crime.10 Because bribery is an inchoate offense—at least as

charged here—it matters not whether there was a “meeting-of-the-

minds,” or even whether the defendant’s expectations regarding the

judge’s favorable rulings, were rational or even likely. See Martinez, 696

S.W.2d at 932–33. Rather, as in both the hypothetical defendant’s case

and as charged here, so long as a rational juror could conclude that

Appellant took an affirmative act in furtherance of her corrupt-intent-

10 Indeed, this hypothetical is premised on an actual bribery prosecution that
occurred in Austin, Texas, which was heavily reported in the media. Members of the
Los Zetas crime syndicate attempted to bribe the Honorable Judge Sam Sparks, a
federal district judge in the Western District of Texas, Austin Division. See e.g.,
Criminal Compl., United States. v. Francisco Agustin Colorado Cebado, also known
as Francisco Colorado, Jr., No. 1:13-cr-00458-DEW-2 (formerly No. 1:13-mj-00471-
AWA) (W.D. Tex. Sep. 5, 2013), ECF No. 1; see also Colorado-Cebado (2), No. A–13–
CR–458 DEW, 2013 WL 5852621 at *1 (considering United States’ Motion for
Detention).

25
scheme, as defined in the bribery statute, she is guilty of bribery. 11 See

id.

2. The law of parties

The jury charge instructed that Appellant may be found criminally

responsible for bribery, either as a primary actor or under the law of

parties. 2 CR 643–48. A party may be criminally responsible under the

law of parties in several ways. Hayes v. State, 265 S.W.3d 673, 678 n.4

(Tex. App.–Houston [1st Dist.] 2008, pet. ref’d). “An individual is

criminally responsible as a party to an offense if the offense is committed

by his own conduct, by the conduct of another for which he is criminally

responsible, or both.” Tex. Penal Code § 7.01(a). A person is also

criminally liable for an offense committed by the conduct of another if

“acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense.” Id. at § 7.02(a)(2). And as established below, a

reasonable jury could have concluded as much here.

11 This also assumes that the State has proven that the relevant payments
were not political contributions, beyond a reasonable doubt. The State will analyze
this issue below.
26
 It is well-settled that a jury may be charged on the law of parties

even though no such allegation is contained in the indictment. Marable

v. State, 85 S.W.3d 287, 287 & n.2 (Tex. Crim. App. 2002) (collecting

cases); see Adames v. State, 353 S.W.3d 854, 861 (Tex. Crim. App. 2011)

(reaffirming that state and federal law both specify that due process does

not require defendant’s culpability as a party to be pled in charging

instrument), cert. denied, 132 S. Ct. 1763 (2012). “This rule applies not

only to the law of parties found in [s]ection 7.02(a)(2) [of the Penal Code]

but also the law of parties found in [s]ection 7.02(b).” Montoya v. State,

810 S.W.2d 160, 165 (Tex. Crim. App. 1989).

With respect to sections 7.01 and 7.02(a)(2), a conviction under the

law of parties requires a showing that, at the time of the offense, the

parties acted together and contributed to a common purpose. Patterson

v. State, 950 S.W.2d 196, 202 (Tex. App.—Dallas 1997, pet. ref’d). In

other words, the State must show conduct constituting an offense, plus

an act by the defendant “done with the intent to promote or assist such

conduct.” Trenor v. State, 333 S.W.3d 799, 806 (Tex. App.–Houston [1st

Dist.] 2010, no pet.). To determine whether a defendant participated as a

27
party, the Court may examine events occurring before, during, and after

the commission of the offense and may rely on actions demonstrating an

understanding to commit the offense. See Ransom v. State, 920 S.W.2d

288, 302 (Tex. Crim. App. 1994).

D. A rational juror could have concluded, beyond a reasonable
doubt, that Appellant did not intend the illicit payments to
constitute “political contributions,” irrespective of how those
payments were actually used.

Appellant contends that “the State affirmatively negated an

essential element of the crime by proving that the alleged bribery could

only have been “political contributions.” Appellant’s Br. at 18–19.

Because Appellant misconstrues the relevant law, and because she

fundamentally alters the test for legal sufficiency, the Court should reject

this claim, and affirm the court below.

1. Appellant misconstrues the statute.

The question here is whether a reasonable juror could conclude,

beyond a reasonable doubt, that the payments made by Appellant were

not “political contributions.” To start this analysis one must first define

“political contribution.” To this end, the jury was given the following

28
definitions, which track the relevant statutes (and which Appellant has

not complained of on appeal):

“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 law, and a guarantee of a loan or
extension of credit, including a loan described by law. The
term does not include 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 an expenditure required by law to be reported.

“Political contribution” means a campaign contribution
or an officeholder contribution.

“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.

“Expenditure” means a payment, distribution, loan,
advance, reimbursement, deposit, or gift of money or any
thing of value and includes a contract, promise, or agreement,
whether or not legally enforceable, to make an expenditure.

2 CR 643–48 (emphasis added); see Tex. Election Code § 251.001(2), (5),

(3), (6) (West 2008). In this case then, a “political contribution” is defined

29
as a “campaign contribution.” Id. And, as relevant here, a campaign

contribution is the direct or indirect transfer of something of value to a

candidate (i.e., Wooten), “with the intent that it be used in connection

with a campaign for elective office. . . .” Id. (emphasis added).

The question under the statute is not whether (or how) a given

payment was actually used in a campaign; rather, the question is

whether the person who made the payment—and who otherwise acted

with corrupt intent under the statute—subjectively intended that the

payment be used in a campaign. In other words, the target’s ultimate

disposition of the money is not outcome determinative to the question of

the briber’s intent. See id.

Moreover, application of this exception to the facts of this case

suggests an additional nuance. As established above, and assuming that

Appellant’s physical act of transferring each sum aligned with her

corrupt intent under the statue, each payment constituted an

independent, completed crime. In other words, the question of intent here

focusses on the instant Appellant took the volitional act of transferring

each sum of money. And like the question of corrupt intent, the question

30
of whether Appellant intended that each payment be used in connection

with a campaign for elective office, should necessarily be measured at the

same moment.

Although the undersigned has been unable to locate precedent on

this point, with all respect to the Court, no other interpretation makes

sense. 12 Here, a rational juror would not be required to conclude that

Appellant subjectively intended that each payment be used in Wooten’s

campaign simply because the money ended up there weeks or months

later. First, it is difficult to imagine how Appellant can complain that the

jury acted unreasonably in concluding that the payments were not

political contributions, given that her defense at trial was the same. See

12 Take, for instance, the following hypothetical. A defendant decides to bribe
a judge to influence the outcome in defendant’s criminal case. To this end, the
defendant purchases a penthouse condominium in downtown Austin, and transfers
title to the judge as part of his scheme to influence the outcome of his criminal trial.
Two weeks after obtaining title to the condominium, the judge sells it, and uses every
dollar of the proceeds to fund her re-election campaign. Assume that the prosecutor
proved corrupt intent. Under Appellant’s view, a rational juror would be required to
conclude the payment was a political contribution because the prosecutor would
necessarily have proven that it was used, dollar-for-dollar, to fund a campaign. The
better view is that the target’s ultimate use may be relevant to determine a
defendant’s subjective intent—or not—depending on the facts of the case. However,
the target’s ultimate use is not determinative under the text of the statute.
31
Prystash, 3 S.W.3d at 531 (“[T]he law of invited error estops a party from

making an appellate error of an action it induced.”).

Moreover, if the jury concluded that Appellant possessed a corrupt

intent when transferring the money to Spencer—not that she had a

specific expectation regarding Spencer or Wooten’s use of the money,

other than for Wooten to enter favorable decisions in Appellant and

Appellant’s husband’s pending cases—Appellant’s conviction must be

affirmed. And in her opening brief to this Court, Appellant seems to

acknowledge this line of reasoning. See Appellant’s Br. at 34–35 (“Even

in the light most favorable to the State, there was no evidence that Ms.

Cary knew what Mr. Spencer was doing with the money she transferred

beyond perhaps generally using it for the Wooten campaign.”). In other

words, Appellant continues to maintain that the evidence fails to

establish she had any expectations regarding the way Spencer and

Wooten used the money. Id. Taking Appellant’s characterization at face

value then, if the jury reasonably believed that the State established

corrupt intent, then the jury could also have concluded that Appellant

32
had no real understanding or expectation regarding how Spencer or

Wooten would use the money. See id.

Because the eventual disposition of Appellant’s surreptitious

payments to Spencer is not dispositive to Appellant’s subjective intent

regarding Wooten’s ultimate use of those payments, the jury could have

found that the six payments were not political contributions.

2. Appellant misapplies Jackson.

More troubling, Appellant misconstrues the test for legal

sufficiency review. The test under Jackson focuses exclusively upon

whether a decision the jury actually made was supported by the evidence

at trial, after resolving all credibility choices and inferential conflicts in

favor of the verdict. Jackson, 443 U.S. at 319. Appellant is asking the

Court to re-weigh the evidence 13 presented at trial in an effort to animate

a determination rejected by a properly-instructed jury, by resolving all

credibility choices and inferential conflicts against those explicit and

13 Most of Appellant’s “evidentiary” support for this sufficiency claim is, in
reality, premised on the prosecutor’s argument, which is not evidence. See Appellant’s
Br. at 19–27.

33
implicit determinations. See Appellant’s Br. at 19–27. 14 Indeed, the

dissent takes the same approach below.15

Appellant’s focus on evidence tending to contradict the jury’s

verdict is fundamentally at odds with the standard described in Jackson.

Indeed, her approach (and the approach used by the dissent) may be

likened to the standard for factual sufficiency rejected by this Court in

Brooks. Under that now-discarded standard, the reviewing court was not

required to defer to either the jury’s credibility or weight determinations,

and the reviewing court could sit as a thirteenth juror and “disagree with

a jury’s resolution of conflicting evidence and with a jury’s weighing of

the evidence.” Brooks, 323 S.W.3d at 899 (internal quotations omitted).

Alternatively, Appellant’s approach finds similarities with the factual

sufficiency standard used in civil cases. E.g., Levine v. Steve Scharn

Custom Homes, Inc., 448 S.W.3d 637, 653 (Tex. App.—Houston [1st Dist.]

14For example, Appellant focuses almost the entirety on the prosecutor’s
argument at trial, tending to establish that the payments ended up being used in the
campaign. See Appellant’s Br. at 19–27.
15 E.g., Cary, 2014 WL 4261233, at *42 (“The State contended and the State’s
evidence showed that the monies transferred in this case were political
contributions—monies used to defray political expenditures incurred by Wooten
during her election campaign.”).
34
2014, pet. denied) (“When the appellants attack the factual sufficiency of

an adverse finding on an issue on which they did not have the burden of

proof, the appellants must demonstrate the finding is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and

manifestly unjust.”). Finally, to the extent that Appellant suggests that

the State was required to disprove other reasonable hypotheses, she may

be attempting to reanimate the long discarded Geesa standard. See

Geesa v. State, 820 S.W.2d 154, 161–62 (Tex. Crim. App. 1991), overruled

by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) (rejecting the

“any reasonable hypothesis” analytical construct in circumstantial

evidence cases to review evidentiary sufficiency). None of these

approaches is available here.

And to the extent that Appellant means to argue that her payments

were political contributions as a matter of law, she cites no authority for

this proposition. Given that the relevant factual inquiry is necessarily

limited to the jury’s determination regarding her subjective intent,

Appellant fails to explain how a court could take such a question out of

the jury’s hands.

35
 When the evidence is properly analyzed under the Jackson

standard, and direct and inferential evidence against the jury’s verdict is

ignored, a rational juror could have reasonably found that Appellant’s

payments were not political contributions. As the lower court held:

The evidence showed Stacy did not transfer funds
directly to Wooten’s campaign; Stacy’s contention was that
she transferred funds to Spencer to compensate him for his
work under the purported consulting agreement. [An
Assistant General Counsel for the Texas Ethics Committee]
testified as to what constitutes a lawful political contribution
under the election code in a race for a Collin County district
court bench in 2008. According to [him], a political
contribution to a candidate for a Collin County bench could
not exceed $2,500 for the election cycle. Each of the six
transfers of funds from Stacy to Spencer that were funneled
to the Wooten campaign vastly exceeded the amount of an
allowable political contribution to a judicial candidate, and
the transfers of funds were not reported by Wooten as political
contributions under the election code on any campaign
finance report or amended campaign finance report filed with
the Ethics Commission or as loans under the election code on
any personal financial statement filed with the Ethics
Commission. See Tex. Elec. Code Ann. § 253.155(b) (West
2010).

Based on the applicable standard of review, a rational
jury could have reasonably found that Stacy’s payments were
not political contributions as defined by the statute. Stacy
does not argue otherwise on appeal.

36
Cary, 2014 WL 4261233, at *34 (emphasis added). It bears repeating:

when Jackson sufficiency is properly measured with reference to only the

evidence supporting the jury’s historic determination, legal sufficiency

becomes apparent here. And important, too, as correctly noted by the

majority in the lower court, Appellant did not challenge the jury’s

determination by reference to the evidence supporting its determination.

Id. In other words, Appellant only argued that the jury was required to

make an inference that it did not make; she has never contended that the

inference made by the jury was not rationally grounded in the evidence

supporting that historic decision, as Jackson requires. And consistent

with her position in the lower court, Appellant does not here argue that

the evidence supporting the jury’s historic determination was insufficient

to justify its conclusion. Hence, application of the proper Jackson

measure should ineluctably lead to Appellant’s convictions being

affirmed, and the State asks the Court to do so here.

37
II. STATE’S REPLY TO ISSUE TWO: The Court Should Affirm the
Court of Appeals Because a Reasonable Juror Could Have Found
Sufficient Evidence of Bribery —As This Jury Actually Found—
Because Proof of a Bilateral Agreement Is Not a Pre-Condition
Under All Parts of the Bribery Statute.

A. Appellant again misconstrues both the statute and the test
for legal sufficiency.

In issue two, Appellant shifts her legal-sufficiency focus to the proof

of a bilateral agreement between her and Wooten, and then complains

about the lack of evidence establishing both that Wooten acted in

conformity with a bribe, and that Appellant received quid-pro-quo

consideration in return for Appellant’s payments. See Appellant’s Br. 27–

33. Because Appellant’s contentions are founded on a misunderstanding

of the bribery statute, the Court should reject this claim. See supra,

Section I(D)(1).

When rejecting a similar argument, this Court once observed:

It was not essential to the appellant’s conviction that in
receiving the money Patton [the target] acted with a criminal
intent. In delivering the money to Patton with the intent to
bribe him, the appellant committed the offense without
regard to the motive of Patton in receiving the money.

Sowells v. State, 99 Tex. Crim. 465, 468, 270 S.W. 558, 559 (1925)

(internal citations omitted). In Sowells, this Court advanced the bedrock
38
principle recognized by the Third Court in Martinez, 696 S.W.2d at 932–

33. As established in Section I(C)(1), supra, given the way Appellant was

charged, proof of bilateral agreement (or counter-consideration) is wholly

unnecessary to affirm Appellant’s convictions. And because Appellant

improperly shifts the legal focus away from her own acts and intentions,

to the supposed lack of evidence regarding whether Wooten acted in

conformity with Appellant’s hopes and desires, her argument fails.

For example, Appellant argues, “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.” Appellant’s

Br. at 29. Since the crime for which Appellant was charged would have

been complete as of the moment she transferred money to Spencer,

Wooten’s thoughts or actions are irrelevant. Appellant continues: “There

was not . . . 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.” Id. at 30. But it

matters not that a defendant’s bribery scheme is well thought-out, or

even likely to succeed. As charged here, bribery is an inchoate offense

39
criminalizing the transfer of money with corrupt intent. The State was

required to prove nothing more. All of Appellant’s remaining arguments

on this point fail for the same reasons. See id. at 31–32.

Finally, attention should be paid to the dissent because Appellant

here relies on it. See Appellant’s Br. at 32 (quoting Cary, 2014 WL

4261233, at *46 (“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, such evidence is not

sufficient to prove bribery.”)). The dissent’s analysis again turns Jackson

on its head. In other words, the dissent acknowledges that the relevant

evidence rationally supported what the jury did, but then supplants that

historic determination with an “equally consistent” inference, against the

jury’s verdict. See id. Because the dissent misconstrues Jackson, it fails

to support Appellant’s present argument, and should be rejected.

B. When reviewing all evidence and reasonable inferences
therefrom, in favor of the jury’s verdict, Appellant’s argument
fails.

The jury in Appellant’s case reviewed the following evidence: Just

three months prior to the beginning of the Wooten’s campaign for judicial

40
office, Appellant and her husband were introduced to Spencer. 4 RR 56–

57. Within one or two weeks of that meeting, Appellant supposedly

entered into a $250,000 contract with Spencer for his services on four

consulting deliverables, having nothing to do with Wooten’s campaign.

SX 150; 6 RR 6–50, 86–98 (demonstrating that defense counsel proffered

the terms of the consulting agreement to explain that Appellant’s

payments to Spencer had nothing to do with Wooten). The contract looked

suspiciously similar to a contract drafted and signed more than two years

later, with a company for whom Appellant’s husband worked; the

contract with Appellant included a typographical error of “TDI,” the

name of the above-mentioned company, which Spencer had initially

testified he had no idea existed at the time he entered the contract with

Appellant. 5 RR 238–44; 6 RR 76–77, 81–86; SX 156, 130. Allegedly

pursuant to this contract, Appellant provided wire transfers and checks

to Spencer for the amounts of $50,000.00 on January 4, 2008; $25,000.00

on January 30, 2008; $25,000 on February 14, 2008; $25,000.00 on

February 26, 2008; $10,000.00 on March 7, 2008; and $15,000.00 on

March 14, 2008. 6 RR 40, 51–54, 96–97, 101–06; 5 RR 36; 6 RR 96–97; 7

41
RR 103–09; Defense Exhibits (“DX”) 6, 5, 4. Remarkably, Appellant made

these payments to Spencer despite the fact that he had produced no

contract deliverables until after April 2008 and prior to August 1, 2008.

5 RR 128–30, 134–35, 183–88, 190–206.

It bears repeating that, according to Appellant at trial, all of these

transferred payments to Spencer were made for wholly unrelated

consulting services, and Appellant attempted to convince the jury that

she had no knowledge Spencer was utilizing these payments in an effort

to get Wooten elected.16 5 RR 27, 29, 36; 6 RR 6–50, 86–98. Under

Appellant’s theory at trial, Spencer’s efforts to get Judge Sandoval

unseated—the judge who had caused Appellant and her husband so

many problems—was a coincidence.

The defense further attempted to demonstrate in her case-in-chief

that Appellant hired Spencer, not to funnel money to Wooten’s campaign,

but in the official capacity as a consultant. Mr. Stine, Appellant’s brother,

16 Additionally, these six payments were made between the date Wooten filed
for judicial candidacy and shortly after the end of the election. 6 RR 40, 58. Looking
to the timing of the contract, the payments began some three months after the
contract’s start date (October 2007) and continued at a 2-week interval, after the first
one-month break. 6 RR 40, 51-54, 96-97, 101-06.
42
testified that hiring consultants was a necessity in the oil business, and

often yielded varied results. 8 RR 212–13, 219–20. But he also testified

that he “vetted” the consultants he used, such as through asking sources

familiar with the new areas he would venture into. 8 RR 220, 238–39.

Here, Appellant relied only on the introduction to Spencer from Royce

Poinsett, the highly credentialed legislative general counsel to then-

Speaker of the House Tom Craddick, but not someone with extensive

experience in the areas Appellant supposedly contracted with Spencer for

his services. 4 RR 5–6, 13–19. Additionally, Mr. Stine testified that, in

one instance in which he felt he had been swindled by a particular

venture partner, he had not only not paid all the money up front, but he

had also attempted to get his money back. 8 RR 213. Yet Appellant took

no such precautions, having paid Spencer $150,000.00 in the span of 1.5

months, and only attempted to collect on a loan to Spencer of $15,000,

made the next year. 6 RR 40, 51-54, 60-61.

The State also produced evidence through the testimony of

Appellant’s CPA that Appellant was diligent and attentive to the

management of her money, namely in reporting and claiming business

43
and legal expenses in her tax returns. 6 RR 119–26. For example, despite

Ms. Kedzie having informed Appellant that the expenses for Appellant’s

husband’s divorce and custody proceedings were not deductible,

Appellant again pressed Ms. Kedzie for their deduction, exchanging a

note that said, “Thanks to my stepchildren litigious abusive narcissistic

gold-digging mother, does personal legal stuff not get deducted? Why

shouldn’t defending my home and family be deductible?” 6 RR 120–22,

127–28; SX 172 (emphasis removed). Remarkably, however, Appellant

did not list or report to her CPA that Spencer was a consultant for any of

her businesses for the tax year of 2008—effectually neither claiming nor

deducting as contractor wages any of the $150,000 paid to Spencer. 6 RR

127–30.

The State produced evidence that Appellant not only knew about

the difficult civil litigation between her husband and his ex-wife, but took

an active role: paying for his legal fees, filing as an intervenor in her

husband and his ex-wife’s lawsuit, and filing suit against the collections

attorney for her husband’s ex-wife. 3 RR 183, 186–90. And the State also

produced evidence that, despite Appellant’s attempt to file a lawsuit

44
affecting her husband’s ex-wife outside of the 380th Judicial District

Court, Appellant’s case was ultimately transferred back to that court—

and Appellant did nothing with that case to move it along until Wooten

took the bench. 3 RR 218–20. Additionally, Appellant’s husband also filed

a second Motion to Modify in his custody proceedings in that court, only

after Wooten took the bench. 3 RR 219.

Finally, a comparison of the chain of communications and bank

records provides the strongest evidence that Appellant’s characterization

of her $150,000 payments to Spencer was a complete fabrication, and also

provided a key link in supporting the jury’s finding of guilt. 7 RR 96–119;

SX 98A. For example, looking to the date of the transfer of monies on

March 7, 2008, after Wooten won the election, evidence shows campaign

consultant Clements called and texted Spencer. 6 RR 66–67; 7 RR 107–

08; 11 RR 6217, 6237 (SX 81A) . Spencer later issued a cashier’s check to

Clements for $10,000.00, presumably as the “win” bonus as promised

prior to Clements’s hiring. 5 RR 48–50. But between 7:00 a.m. and 11:00

a.m. on the day of that issuance, the phone records of Spencer and the

Carys show that Spencer and Appellant’s husband exchanged a total of

45
17 text messages, and Appellant and her husband exchanged four phone

calls or messages,; Appellant then arranged for $10,000.00 to be wired to

Spencer, and—nearly one hour later—that same amount was issued to

Clements. 7 RR 107–08; 6 RR 53–59; 11 RR 38, 43, 45–46 (SX 98A), 2939–

41 (SX 77), 5517 (SX 79C), 5783 (SX 80).

Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and alone is sufficient to establish guilt.

Guevara, 152 S.W.3d at 49. The cumulative effects of these facts are

sufficient to support the conviction under the law of parties. See id.

Namely, that Appellant’s entire defense at trial was a fabrication. That

the consulting agreement was a subterfuge, fabricated several years after

its purported effective date to provide a false explanation for the

transfers of money from Stacy to Spencer. In other words, that Appellant

knowingly made each of the six payments to Spencer, hoping to obtain

favorable rulings from Wooten, in cases in which Appellant or her

husband were parties—and then lied about it. See, e.g., 3 RR 66–68, 75,

93–95; 4 RR 14, 79–82, 88–93, 136, 141–42, 147; 5 RR 31–37, 40–41; 6

RR 54–60, 71; 7 RR 19, 26–33, 40. The cumulative effect of these facts

46
indicate that Appellant aided or attempted to aid her husband, who

worked with Wooten and/or Spencer to unseat Judge Sandoval with an

understanding that Wooten would issue favorable rulings to Appellant

and her husband in cases already pending in front of her. See Tex. Pen.

Code Ann. §§ 7.01(a), 7.02(a)(2) (law of parties); see also Hayes, 265

S.W.3d at 678, n.4 (a party may be criminally responsible under law of

the parties in several ways); Patterson, 950 S.W.2d at 202 (at the time of

the offense, the parties acted together and contributed to a common

purpose); see also Trenor, 333 S.W.3d at 806 (State must show conduct

constituting an offense, plus an act by the defendant “done with the

intent to promote or assist such conduct”).

Finally, Appellant’s apparent concession to this Court—that her

subterfuge could just as easily have been interpreted by a rational juror

as an effort to avoid the contribution limits under the Election Code—

fails under its own weight. First, Appellant should be required to

explicitly concede her own subterfuge before urging this Court to impute

its inference to the jury. Second, this contention again smacks of Geesa

—ultimately, Appellant asserts that the State should disprove a

47
competing rational inference. But lastly, Appellant ignores the inverse of

her argument: if the jury could infer from Appellant’s deception that she

was attempting to avoid the minor criminal sanction associated with

contribution reporting or limits, then the jury could also rationally infer

that Appellant used subterfuge to avoid public exposure of her corrupt

intentions under the bribery statute.

III. STATE’S REPLY TO ISSUE THREE: The Court Should Affirm the
Lower Court Because a Reasonable Juror Could Have Found—As
This Jury Actually Found—the Evidence was Sufficient to Show
that Appellant Had the Requisite Intent to Commit Bribery.

In issue three, Appellant appears to shift her legal-sufficiency focus

to proof of bribery more generally. See Appellant’s Br. 33–35. But because

Appellant’s contentions are again founded on a misunderstanding of the

bribery statute, the Court should reject this claim, too. Appellant’s

principal argument on this question seems to be encapsulated by the

following:

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
48
 understood that expenses allegedly should have been
recognized earlier.

Appellant’s Br. at 34. But by again focusing on the particular arguments

made by the prosecutor in a vacuum, and by stating the measure for legal

sufficiency in terms of only the most demanding alternative theories in

the charge, Appellant misapplies Jackson and attempts to resurrect

Geesa. See Guevara, 152 S.W.3d at 49 (when a court’s charge authorizes

the jury to convict on more than one theory, the verdict of guilty will be

upheld if the evidence is sufficient on any one of the charged theories).

Here, the most salient measure for legal sufficiency is whether a

rational juror could have believed, beyond a reasonable doubt, that when

Appellant knowingly made each of the six payments to Spencer, she

hoped to obtain favorable rulings from Wooten, in cases in which

Appellant or her husband were parties. 17 This is the simplest

restatement of the relevant question, at least on this record. 18 Appellant’s

efforts to establish legal insufficiency with evidentiary arguments and

17Obviously, this measure for sufficiency assumes the State proved the
payments were not intended to be political contributions.
18 Again, the State does not waive, and explicitly reserves, consideration of the
alternative theories of criminal liability for purposes of Jackson review.
49
observations beyond the scope of this simple, narrow question, should be

rejected outright.

And it matters not that, as of the time Appellant made the

payments to Spencer, Wooten could not yet provide Appellant the benefit

Appellant hoped to receive. See Tex. Penal Code § 36.02(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.”). Rather, Appellant need only have hoped that Wooten

would use her “official discretion” as a judge, at some time in the future,

to change the outcome in litigation in which her or her husband were

parties. Id.

And as established in Section II, supra, review of the evidence

supporting the jury’s verdict, plainly establishes legal sufficiency on this

point.

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IV. STATE’S REPLY TO ISSUE FOUR: The Court Should Affirm the
Court of Appeals Because a Reasonable Juror Could Have Found—
As This Jury Actually Found—Sufficient Evidence to Support
Appellant’s Conviction for Engaging in Organized Criminal
Activity and Money Laundering.

In issue four, Appellant contends that the evidence was insufficient

to support Appellant’s convictions for both money laundering and EOCA.

See Appellant’s Br. 35–41. Appellant’s contentions are necessarily

premised on her argument that there was insufficient evidence for the

jury to convict her of bribery—a predicate offense for both EOCA and

money laundering. See id. Hence, if this Court affirms the lower court’s

determination that the evidence was legally sufficient to support

Appellant’s conviction for bribery, then Appellant’s contention on this

issue must be rejected too.

51
 PRAYER FOR RELIEF

FOR ALL THESE REASONS, the State respectfully requests that

this Honorable Court to affirm the decision of the court of appeals.

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

ADRIENNE McFARLAND
Deputy Attorney General
for Criminal Justice

EDWARD L. MARSHALL
Chief, Criminal Appeals Division

/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN*
*Lead Counsel Assistant Attorney General
Supervising Attorney
for Non-Capital Appeals
Criminal Appeals Division
State Bar No. 00793549
Joseph.Corcoran@TexasAttorneyGeneral.gov

P. O. Box 12548, Capitol Station
Austin, Texas 78711

ATTORNEYS FOR THE STATE OF
TEXAS

52
 CERTIFICATE OF SERVICE

Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate

Procedure, I do hereby certify that if the email address of attorneys

designated below is on file with the electronic filing manager, a true and

correct copy of the foregoing notice was served electronically by that

electronic filing manager, on the following attorneys via electronic mail:

John Michael Helms Jr.
Attorney for Appellant

Moreover, I do hereby certify that if the email addresses for the

designated attorneys are not on file with the electronic filing manager, a

true and correct copy of the foregoing pleading was served by email,

addressed to:

John Michael Helms Jr.
john@johnhelmslaw.com

/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN
Assistant Attorney General

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 CERTIFICATE OF COMPLIANCE WITH
TEXAS RULE OF APPELLATE PROCEDURE 73.1(f)

This brief complies with Tex. R. App. Proc. 9.4(i)(3) in that it

contains 10,550 words, as calculated pursuant to Tex. R. App. Proc.

9.4(i)(1), in Microsoft Word 2013, Century, 14 points.

/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN
Assistant Attorney General

54