Cary, David Frederick

PD-0445-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/2/2015 11:37:36 PM
Accepted 10/5/2015 7:53:11 AM
ABEL ACOSTA
APPELLANT REQUESTS ORAL ARGUMENT/ CLERK
ORAL ARGUMENT GRANTED

IN THE COURT OF CRIMINAL APPEALS OF TEXAS
______________________________
No. PD-0445-15
_______________________________
October 5, 2015

THE STATE OF TEXAS, Appellant

v.

DAVID FREDERICK CARY, Appellee

On Appeal from the Court of Appeals, Fifth District of Texas at Dallas
Court of Appeals No. 05-13-01010-CR
__________________________________________________________________

APPELLEE'S BRIEF

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 APPELLEE,
DAVID FREDERICK CARY
 TABLE OF CONTENTS
TABLE OF CONTENTS…………………………………………...………............i

INDEX OF AUTHORITIES……………………………………………………....iv

STATEMENT REGARDING ORAL ARGUMENT……………………………...1

STATEMENT OF FACTS…………………………………………………………1
A. INTRODUCTION................................................................................1

B. DAVID CARY’S DIVORCE PROCEEDINGS IN JUDGE
SANDOVAL’S COURT.......................................................................3

C. DAVID CARY’S ATTEMPTS AT LEGISLATIVE REFORM
AND HIS INTRODUCTION TO STEPHEN SPENCER....................6

D. STEPHEN SPENCER RECRUITS SUZANNE WOOTEN TO
RUN......................................................................................................8

E. MS. WOOTEN’S CAMPAIGN............................................................9

F. MS. WOOTEN BECOMES JUDGE OF THE 380TH COURT
AND PROMPTLY RECUSES HERSELF FROM DAVID
CARY’S CHILD CUSTODY CASE………………………………..12

SUMMARY OF ARGUMENT……………………………………………...........13

ARGUMENT……………………………………………………………………...14
I. STANDARD OF REVIEW AND OVERVIEW OF THE BRIBERY
CHARGES ……………………………………….......................................14

A. STANDARD OF REVIEW......……………………………………..14

B. THE BRIBERY CHARGES IN THIS CASE…………….................15

1. ALL CHARGES WERE EITHER BRIBERY OR A
CHARGE THAT INCORPORATED
BRIBERY…………………………………………….............15

Appellee's Brief--Page i
 2. THE BRIBERY SUBSECTIONS CHARGED IN
THIS CASE..…....……………………………………............17

3. ALL BRIBERY ALLEGATIONS CHARGE THE BRIBING
OF MS. WOOTEN TO BECOME A CANDIDATE, TO
CONTINUE TO RUN FOR OFFICE, AND MAKING
FAVORABLE RULINGS........………………………………18

II. ARGUMENTS REGARDING THE STATE’S ISSUES PRESENTED…..21

A. RESPONSE TO STATE’S ISSUE 1: THE COURT OF APPEALS
CORRECTLY CONCLUDED THAT THE STATE FAILED TO
PROVE BRIBERY BY SOMETHING OTHER THAN
“POLITICAL CONTRIBUTIONS” BEYOND A REASONABLE
DOUBT...………….……………………………..…………...…….21

1. BECAUSE OF ITS CHARGING DECISION, THE STATE
WAS REQUIRED TO PROVE, BEYOND A REASONABLE
DOUBT, THAT BRIBERY WAS ACCOMPLISHED BY
SOMETHING OTHER THAN “POLITICAL
CONTRIBUTIONS”...………………………………………21

2. THE COURT OF APPEALS CORRECTLY CONCLUDED
THAT THE STATE FAILED TO PROVE BRIBERY
BY SOMETHING OTHER THAN “POLITICAL
CONTRIBUTIONS”…………………………………………22

3. THE COURT SHOULD REJECT THE STATE’S
CONTRARY ARGUMENTS..………………………………27

a. MR. CARY’S “DEFENSIVE THEORY”…………….27

b. THE “BRIBERY IS AN INCHOATE OFFENSE”
ARGUMENT.…………………………………………31

Appellee's Brief--Page ii
 c. THE COURT OF APPEALS’ INTERPRETATION
AND APPLICATION OF THE DEFINITION
OF “POLITICAL CONTRIBUTION”….……………..34

d. THE STANDARD OF REVIEW FOR
SUFFICIENCY OF THE EVIDENCE..………………36

B. RESPONSE TO STATE’S ISSUE TWO: THE EVIDENCE
WAS INSUFFICIENT TO SUPPORT THE BRIBERY
CONVICTIONS………................................................................................37

1. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
ANY OF THE THREE ALLEGED TYPES OF
OFFICIAL ACTION..……………………………………………….37

2. THE EVIDENCE WAS INSUFICIENT TO PROVE THAT
MS. CARY HAD THE REQUISITE INTENT TO
COMMIT BRIBERY……………………………………………......43

C. RESPONSE TO THE STATE’S ISSUE THREE: THE EVIDENCE
WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS FOR
ENGAGING IN ORGANIZED CRIMINAL ACTIVITY AND MONEY
LAUNDERING…………………………………………………………….47

CONCLUSION………………………………………………………………...…48

Appellee's Brief--Page iii
 INDEX OF AUTHORITIES

Statutes/Rules:

Texas Election Code § 251.001(2)………………………………………………..24

Texas Election Code § 251.001(3)……………………………………………23, 24
Texas Election Code § 251.001(5) ……………………………………………….23

Texas Penal Code § 1.07 (a)(41)………………………….....................................38

Texas Penal Code § 2.01.........................................................................................27

Texas Penal Code § 2.02(b)…………………………...........................21, 22, 28, 30
Texas Penal Code § 7.02 (a)………………......………………………………......36

Texas Penal Code § 34.01 (1)…………………......………………………………17
Texas Penal Code § 34.02.......................................................................................16
Texas Penal Code § 36.02(a)(1)………………………....……………18, 32, 38, 43

Texas Penal Code § 36.02(a)(2)…………………………........………18, 32, 38, 43
Texas Penal Code § 36.02(a)(1), (2)…………………………..............18, 21, 32, 37

Texas Penal Code § 36.02(a)(1), (2), (3)……………………………….......…17, 23
Texas Penal Code § 36.02(a)(1), (2), (3), (4)..……………………………........…17
Texas Penal Code § 36.02 (a)(4)……………………………......……...1, 14, 37, 41

Texas Penal Code § 36.02(d)…………………………………….……17, 21, 23, 30

Texas Penal Code § 36.09………………………………………………...………19

Texas Penal Code § 37.10 (a)(5)………………………………………...........….16

Texas Penal Code § 71.02 (a)…………………………………..………...............16

Appellee's Brief--Page iv
Cases:
Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2012) (Cochran, J.
concurring)…………………………………......………………………………….15

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)......................................46

David Cary v. State, No. 05-13-01010, slip op. at 11 (Tex. App.—Dallas,
March 25, 2015)…………………………………………………………...…passim

Stacy Cary v. State, No. 05-12-01421-CR, 2014 WL 42612133
(Tex. App—Dallas 2014)…………………………………………23, 24, 39, 40, 46

Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006)................................27

Ex parte Thompson, 179 S.W. 3d 549 (Tex. Crim. App. 2005)……....………..…36
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).................................15

Hill v. State, 883 S.W.2d 765 (Tex. App.--Amarillo 1994, pet. ref’d)……............36
Homan v. State, 662 S.W.2d 372, 374 (Tex. Crim. App. 1984) (en banc)..............27

Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).…………......15, 45, 46

Hubbard v. State, 668 S.W.2d 419 (Tex. App—Dallas 1984, pet.granted
on other grounds)………………………………………………………...……19, 20
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)....................14, 15, 36, 45
M., K., & T. Ry. V. Eyer, 96 Tex. 72, 74-75, 70 S.W.529, 529-30 (1902)..............28

Martinez v. State, 696 S.W.2d 930, 933 (Tex. App.—Austin 1985, pet. ref’d)19, 32

McCallum v. State, 686 S.W.2d 132, 136 (Tex. Crim. App. 1985)…...............19, 40

Mustard v. State, 711 S.W.2d 71, 75 (Tex. App.—Dallas 1986, no pet.)...............33
Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999).........................28, 29

Ripkowski v. State, 61 S.W.3d 378, 389 (Tex. Crim. App. 2001)...........................28
Willeford v. State, 72 S.W.3d 820, 823 (Tex. App.—Fort Worth 2002).................29

Appellee's Brief--Page v
Winfrey v. State, 2013 Tex. Crim. App. Lexis 431, 10-12
(Tex. Crim. App. Feb. 27, 2013)…………………………………...………......…15

Treatises:

George E. Dix and Robert O. Dawson, 43 Texas Practice—Criminal Practice
and Procedure § 42.141 (Supp. 1999)....................................................................28

Appellee's Brief--Page vi
 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.

STATEMENT OF FACTS
A. Introduction.

The State’s Brief’s Statement of Facts completely fails to explain the

evidence that the State used to try to prove bribery and even how the alleged

bribery worked. This is not surprising because, as explained below, the

State charged, presented, and argued this case based on the fundamentally

flawed premise that a “political contribution” under the bribery statute does

not include campaign contributions that are not properly reported or that are

otherwise illegal.

Because the State charged bribery by something other than a political

contribution, the State was required to negate bribery by political

contribution beyond a reasonable doubt. But the only possible evidence that

could potentially support bribery was through political contributions. Thus,

the State’s evidence effectively disproved its own case.

Appellee's Brief--Page 1
 On appeal, the State now tries to run as far away as possible from the

actual evidence at trial and how it could possibly support a bribery

conviction. For example, for obvious reasons, the State’s Brief’s Statement

of Facts does not even explain the flow of money that supposedly

constituted the “benefit” to the public official, Suzanne Wooten (“Ms.

Wooten”). Instead, it simply says that defendant David Cary (“Mr. Cary”),

caused money to be paid to Ms. Wooten’s campaign management

consultant, Stephen Spencer (“Mr. Spencer”), as an “intermediary” and that

Mr. Spencer offered or conferred an undefined “benefit” to Ms. Wooten.

State’s Brief at 4. This description is, frankly, disingenuous, because it

invites the impression that Mr. Spencer gave something of value directly to

Ms. Wooten. This did not happen, and there was absolutely no evidence at

trial that it did.

Instead, in the light most favorable to the verdict, the evidence

showed that Mr. Spencer’s consulting firm, SpenOff Strategies, received

money from the Mr. Cary and his wife, Stacy Cary, and that, through

SpenOff Strategies, Mr. Spencer paid for campaign expenses for Ms.

Wooten’s campaign at times when the campaign allegedly had not yet raised

enough money to pay for them. SpenOff Strategies later billed the Wooten

campaign for these expenses, and the campaign paid all of these bills with

Appellee's Brief--Page 2
legitimately-raised money. These funds advanced to the campaign were the

only possible benefit allegedly offered to, or conferred on, Ms. Wooten.

There was no evidence whatsoever that Ms. Wooten, personally, was ever

offered, or ever received, anything directly or indirectly from the Cary’s.

The underlying facts in this case involve efforts to unseat a Collin

County judge who had a reputation for being vindictive, biased, and abusive.

That judge, Charles Sandoval (“Judge Sandoval”), had presided over the

380th Judicial District Court of Collin County, Texas. He was defeated in

the 2008 Republican primary by a Ms. Wooten. There was no Democratic

opponent in the general election, and Ms. Wooten therefore became judge of

the 380th Judicial District Court.

The State's bribery theory is an attempt to shoehorn potential election

reporting and campaign finance issues into a bribery case. It does not fit.

Mr. Cary did not commit bribery or any of the other crimes charged, each of

which includes bribery as an element.

B. David Cary's Divorce Proceedings In Judge Sandoval's Court.

In 2003, Mr. Cary filed for divorce from his wife, Jennifer Cary. TR

11 at 1221 (State's Tr. Ex. 7). The case was assigned to Judge Sandoval's

court. Id.

Appellee's Brief--Page 3
 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 1233, 1245 (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. at 1245; TR 2 at 109-110.

Barely more than six months later, however, on April 13, 2005,

Jennifer Cary claimed that circumstances had changed and filed a Petition to

Modify the Final Divorce Decree. TR 11 at 1316 (State's 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 Mr. Cary's

visitation. Id. After this point, the litigation became heated.

During the course of the litigation, Mr. Cary's attorney obtained

evidence of ex parte contacts between opposing counsel and Judge

Sandoval. TR 11 at 1324. He therefore filed a motion to recuse Judge

Sandoval on April 28, 2006. Id. Ultimately, the motion was unsuccessful,

and Judge Sandoval remained on the case. TR 11 at 1401 (State’s Tr. Ex. 7).

Appellee's Brief--Page 4
After this, Mr. 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 indicated that he was not well liked, that he was

“capricious” in the way he judged, and concern that clients would not get “a

fair shake” in his court. TR 3 at 132, 203. He was also the most appealed

and the most reversed judge in Collin County. TR 4 at 160.

On December 1, 2006, Judge Sandoval granted Jennifer Cary's

Petition to Modify in full. He removed Mr. Cary as Joint Managing

Conservator and appointed Jennifer Cary as Sole Managing Conservator of

the girls. TR 11 at 1405 (State's Tr. Ex. 7). He also awarded Jennifer Cary

attorney's fees of $416,543.16. Id. Mr. Cary did not appeal any aspect of

this order.

On January 23, 2007, Mr. 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 1436 (State's Tr. Ex 7). Judge Sandoval denied this

petition and imposed sanctions of $50,000 on Mr. Cary and his lawyer. TR

11 at 1441 (State’s Tr. Ex. 7); TR 2 at 134-35.

Appellee's Brief--Page 5
 Notably, an unquestionably unbiased judge--Senior Judge John

McCraw—was ultimately appointed to the child custody matter. Judge

McCraw vacated Judge Sandoval’s rulings. Instead, he gave Mr. Cary the

exclusive right to determine the girls’ primary residence and ordered that the

girls should live with him during the week. TR 11 at 8055, 8057-62. Judge

McCraw specifically found that the mother had not acted in the best interests

of the children by, among other things, failing to provide optimal

arrangements for their attendance at and transportation to their special needs

school, deliberately alienating them from Mr. Cary, and falsely accusing him

of molestation, mental and physical abuse of the girls, and abuse of alcohol

and drugs. See id. In addition, Judge McCraw vacated Judge Sandoval’s

ruling. TR 2 at 149. Thus, an unbiased judge who no one claims to have

been bribed ultimately ruled completely in Mr. Cary’s favor.

C. David Cary's Attempts At Legislative Reform And His
Introduction To Stephen Spencer.
In light of his experiences, Mr. 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 began talking to people in Austin. TR 3 at 18.

At the same time, Mr. Spencer was talking to members of the State

Legislature and their staffs about similar issues. TR 3 at 11, 15, 169. Mr.

Appellee's Brief--Page 6
Spencer had an interest in parental rights—particularly the rights of parents

compared to grandparents--and he had connections to an organization called

the Texas Home School Counsel, which also had similar interests. See id.;

TR 3 at 144.

The General Counsel for Texas Speaker of the House Tom Craddick

had been in contact with both the Cary’s and Mr. Spencer, and he introduced

them by email because of their shared interests. TR 3 at 20, 182.

In early October of 2007, Mr. Spencer drove to the Carys' home in

Dallas to meet with them. TR 3 at 188. Mr. Spencer and the Cary’s

discussed Mr. Cary's interest in legislation about parental rights. See id. Mr.

Spencer had experience with the legislative process and took an interest in

Mr. Cary’s desire to make policy changes at the state level. TR 3 at 187-92,

195, 197-99.

At around the same time, in addition to possible legislative solutions,

Mr. Spencer had been discussing with Tim Lambert of the Texas Home

School Coalition, the possibility of trying to unseat judges who were not

following the law in the area of parental rights. TR 3 at 176-78. After

talking to David Cary, Mr. Spencer went to Collin County and reviewed

David Cary's divorce file. TR 3 at 200. After doing research on Judge

Sandoval and speaking to lawyers, Mr. Spencer concluded that Judge

Appellee's Brief--Page 7
Sandoval lacked a family law background, had a very poor reputation, and

was not applying the law correctly. TR 3 at 200-203, 206. Mr. Spencer

ultimately decided to try to find someone who could run against Judge

Sandoval. TR 3 at 202-204.

D. Stephen Spencer Recruits Suzanne Wooten To Run.

In or around mid-November 2007, Mr. Spencer began speaking to

several lawyers in Collin County with family law backgrounds about

running against Judge Sandoval. TR 3 at 204-211. He was turned down

several times before he contacted Ms. Wooten. See id.; TR 6 at 196.

Mr. Spencer got Ms. Wooten's name from the chairman of the Collin

County Democratic Party. TR 3 at 216. The Democratic Party had been

trying to recruit Ms. Wooten to run against Judge Sandoval as well, but after

careful consideration, Ms. Wooten had declined the offer, presumably

because it is almost impossible for a Democrat to win in Collin County. TR

3 at 130-32, 218-19.

Ms. Wooten had expressed interest to others in running for judge

before. TR 3 at 63. She was a good candidate because she was a family

lawyer and was well-respected. TR 3 at 58-60, 105-105, 151. Ms. Wooten

had started and run her firm’s Collin County family practice office. TR 3 at

Appellee's Brief--Page 8
60-61. She had an excellent reputation as a lawyer and for her ethics, which

were unquestioned. TR 3 at 104-105, 151.

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 23-26. Through his

contacts, including the Texas Home School Counsel, Mr. Spencer could also

offer grass-roots support for getting her name out, getting endorsements, and

getting “boots on the ground.” TR 4 at 34; TR 3 at 144.

Ms. Wooten agreed to enter the race as a Republican. Mr. Spencer,

through his company, SpenOff Strategies, performed campaign management

services for the campaign. TR 4 at 29. Ms. Wooten filed papers on January

2, 2008. TR 3 at 222, 224; TR 11 at 2294 (State’s Tr. Ex. 61).

As a practical matter, because there would be no Democratic

opponent in the general election, the Republican primary would decide the

winner, and Ms. Wooten’s campaign would only last from January 2, 2008

through March 4, 2008—only about two months. TR 3 at 70, 219.

E. Ms. Wooten's Campaign.

The Wooten campaign was not only Ms. Wooten’s first campaign, but

it was also Mr. Spencer’s first campaign as well. TR 7 at 15. Working with

Mr. Clements on strategy and media buying, Mr. Spencer’s company

Appellee's Brief--Page 9
provided the campaign with a “turnkey” arrangement in which Mr.

Spencer’s company would pay for certain campaign expenditures, such as

advertising, and send the campaign an invoice for reimbursement of the

expenditures. TR 4 at 25-26, 91, 176, 189. This arrangement, in which

expenses were bundled into single invoices, allowed Ms. Wooten, who was

also running her law practice, to avoid having to handle payment of

individual bills and dealing with vendors. TR 5 at 126. Ms. Wooten would

then pay the invoices from Mr. Spencer when she received them and report

the payments on her campaign finance reports. TR 4 at 189, TR 5 at 60.

Mr. Clements testified that having a campaign consultant operate this

way is not unusual and that he has done it in the past. TR 7 at 24-25. Even

the State’s election ethics expert agreed that he was aware that some

candidates handle billing and reporting in that way. TR 6 at 69-70.

The evidence at trial showed that Stacy Cary was involved with

requesting or causing monetary transactions through which payments were

made to Mr. Spencer. Mr. Spencer testified that these payments were for

work he did for Stacy Cary on several consulting projects. From January 4,

2008 to March 14, 2008, the total amount of payments from the Cary’s to

Mr. Spencer was $150,000. There was no evidence that either of the Cary’s

had any contact with Ms. Wooten.

Appellee's Brief--Page 10
 The Republican primary was on March 4, 2008. Ms. Wooten won the

primary and did not have an opponent in the general election. According to

the State, the Wooten campaign reimbursed Mr. Spencer’s company for

approximately $102,000 of campaign expenditures. TR 5 at 114. This

$102,000 represented money that Mr. Spencer’s company had spent “to run

the campaign.” TR 8 at 111. The invoices from Mr. Spencer’s company

were paid in full from campaign funds, and the State does not contend that

any of the funds were raised improperly. TR 8 at 118.

The State does claim that Mr. Spencer used the money that he

received from Stacy Cary to pay for the $102,000 in campaign expenses and

that he would not have been able to pay for those expenses without the

transfers from Stacy Cary. The State also claims that Mr. Spencer delayed

sending invoices to the campaign until after the campaign had raised enough

money to pay them. The State claims that the transfer of money from Stacy

Cary to Mr. Spencer was for use on the campaign and that Mr. Spencer used

that money to pay for campaign expenses like radio ads that the campaign

could not yet afford. This was the bribe, according to the State.

The State’s own forensic auditor and summary witness admitted,

however, that there was no evidence that Ms. Wooten knew either that Mr.

Spencer needed money from somewhere else to pay the campaign expenses

Appellee's Brief--Page 11
or that Mr. Spencer was receiving money from either of the Cary’s. TR 8 at

55-56. Indeed, there was no evidence that Ms. Wooten knew about the

Carys’ relationship with Mr. Spencer at all. Mr. Spencer testified that he did

not tell Ms. Wooten about his relationship with the Cary’s. TR 4 at 173-74.

Mr. Clements testified that he never met the Cary’s at any time during the

campaign and never even heard their names mentioned. TR 7 at 21.

F. Ms. Wooten Becomes Judge of the 380th Court And Promptly
Recuses Herself From David Cary’s Child Custody Case.

Ms. Wooten became judge of the 380th District Court and inherited

Mr. Cary’s child custody case. When she had an opportunity to preside over

it, however, she immediately recused herself on her own initiative before

making any rulings.

During a hearing, she indicated, on her own, that she felt she should

recuse herself, mostly because her former campaign treasurer, Alma

Benavides, was representing Mr. Cary’s ex-wife and it was too close to the

end of the campaign. TR 3 at 77-81. She therefore asked that a motion to

recuse her be filed, which it was, and she granted it. Id. Thus, the

supposedly bribed judge immediately pulled herself off of the case involving

the custody and welfare of Mr. Cary’s special needs daughters—the only

case that mattered to him.

Appellee's Brief--Page 12
 SUMMARY OF ARGUMENT
This Court should affirm the ruling of the Court of Appeals

dismissing all of Mr. Cary’s Convictions.

First, the Court of Appeals correctly concluded that the sections of the

bribery statute under which Mr. Cary was charged require proof beyond a

reasonable doubt that Mr. 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 Mr. Cary’s innocence, because the only

possible benefits offered, conferred, or agreed to be conferred, were

“political contributions.

Second, this Court should affirm the Court of Appeals because the

evidence was insufficient to support the bribery convictions. 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 for favorable rulings,

Appellee's Brief--Page 13
in particular, because there was no evidence that the alleged recipient would

have known for whom to rule favorably. Additionally, there was insufficient

evidence that Mr. Cary had the requisite intent to commit bribery for any

reason.

Third, the Court should affirm the Court of Appeals’ reversal of Mr.

Cary’s convictions for Engaging in Organized Criminal Activity (“EOCA”),

and money laundering. Because bribery is the only predicate crime that can

potentially support either of them, and because the evidence of bribery was

insufficient, the evidence of EOCA and money laundering was insufficient

as well.

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

Appellee's Brief--Page 14
 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).

B. The Bribery Charges In This Case.

1. All Charges Were Either Bribery Or A Charge That
Incorporated Bribery.
Bribery is the linchpin of every charge against Mr. Cary. The

Superseding Indictment charges Mr. Cary with bribery in six substantive

counts (Counts II-VII). Each bribery count involves a separate payment by

Stacy 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

Appellee's Brief--Page 15
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 Mr. Cary had established, maintained, or participated

in a combination to commit or, as a lesser included offense, conspire to

commit, any of the three predicate crimes--bribery, money laundering,1 or

tampering with a government record.2

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

1
Tex. Pen. Code §34.02. Subsection (a)(4) was charged in this case.
2
Tex. Pen. Code § 37.10(a)(5). The State did not charge Mr. Cary with a substantive
count of tampering with a government record.

Appellee's Brief--Page 16
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 Subsections 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 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.

Mr. Cary was only charged under sections 36.02(a)(1) and (2).

Appellee's Brief--Page 17
Superseding Indictment, Counts I-VIII. 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).

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.

Texas Penal Code sections 36.02(a)(1) and (2), under which Mr. Cary

was charged, require proof that the “benefit” must be “as consideration for”

specified types of official 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

Appellee's Brief--Page 18
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 enumerated official actions. 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”).

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

Appellee's Brief--Page 19
conferring 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.

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 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. As explained below, the evidence of each of these was

insufficient, and none of them can support the conviction.

Appellee's Brief--Page 20
 II.

ARGUMENTS REGARDING THE STATE’S ISSUES PRESENTED

A. RESPONSE TO STATE’S ISSUE ONE: The Court of Appeals
Correctly Concluded That the State Failed To Prove Bribery By
Something Other Than “Political Contributions” Beyond A
Reasonable Doubt.

1. Because Of Its Charging Decision, the State Was Required
to Prove, Beyond A Reasonable Doubt, That Bribery Was
Accomplished By Something Other Than “Political
Contributions.”

The Court of Appeals correctly held that the State’s decision to charge

bribery under Penal Code sections 36.02 (a)(1) and (a)(2) required the State

to prove, beyond a reasonable doubt, that bribery occurred by something

other than a “political contribution.” This is because Penal Code section

36.02(a)(4)—bribery by “political contribution”—is an express exception to

subsections (a)(1) and (a)(2). Section 36.02(d) states: “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….”

Tex. Penal Code § 36.02(d).

Since a “political contribution” is an exception to the subsections

charged, under section 2.02(b) of the Texas Penal Code, the State had to

negate the exception in the indictment and prove beyond a reasonable doubt

that Mr. Cary committed bribery through something other than political

Appellee's Brief--Page 21
contributions. See Tex. Penal Code § 2.02 (b) (“The prosecuting attorney

must negate the existence of an exception in the accusation charging the

commission of the offense and prove beyond a reasonable doubt that the

defendant or defendants conduct does not fall within the exception.”).

Thus, the Court of Appeals correctly held that “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.” David Cary v. State, No. 05-13-01010, slip op. at 5 (Tex.

App.—Dallas, March 25, 2015) (hereinafter “Court of Appeals Opinion”).

The State does not disagree.

2. The Court of Appeals Correctly Concluded That The State
Failed to Prove Bribery By Something Other Than
“Political Contributions.”

The Court of Appeals analyzed the Texas Election Code sections that

define “political contribution” and correctly concluded that 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

Appellee's Brief--Page 22
elective office. Court of Appeals Opinion at 5-6.3 Again, the State does not

disagree.

Importantly, as the Court of Appeals noted, under the applicable

statutory definitions, the fact that a campaign contribution exceeds

applicable contribution limits or is not properly reported does not exclude it

from being a “political contribution.” See Court of Appeals Opinion at 9.

Or, as the dissent in Stacy Cary’s appeal put it, “But the definitions of

‘contribution,’ ‘campaign contribution,’ and ‘political contribution’ do not

incorporate these other legal requirements [concerning reporting and

contribution limits]. In other words, an illegal political contribution is still

a political contribution.” Stacy Cary v. State, No. 05-12-01421-CR, 2014

WL 4261233 at *43 (Tex. App.—Dallas 2014) (FitzGerald, J., dissenting)

(emphasis added).4

3
See Texas Election Code § 251.001(2), (3), (5) (defining “political contribution,”
“campaign contribution,” and “contribution”).
4
Additionally, the bribery statute itself reflects a legislative intent to except all “political
contribution[s]” from sections 36.02(a) (1), (2), and (3), regardless of whether they are
illegal or properly reported. Section 36.02(d) of the bribery statute excepts 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 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 excepted from sections
36.02(a)(1), (2), and (3).

Appellee's Brief--Page 23
 On appeal, the State does not disagree with this. In the trial court,

however, the State premised the way it charged, presented, and argued the

case on the erroneous belief that a political contribution that is not properly

reported is not a “political contribution.” See, e.g., TR 9 at 19 (arguing in

closing that the payments to Mr. Spencer were not “political contributions”

because they were “never reported”). The State based its prosecution of

Stacy Cary on the same erroneous assumption.5

Consistent with its flawed understanding of the bribery statute, the

State’s only proof at trial, of any conceivable offer or conferring of a

“benefit” to Ms. Wooten under the bribery statute, was that Mr. Cary and his

wife, Stacy Cary, paid money to Suzanne Wooten’s campaign management

consultant, Mr. Spencer (through SpenOff Strategies), that Mr. Spencer

(through SpenOff Strategies), spent a significant percentage of it on Wooten

campaign expenses, that Mr. Spencer did not invoice the Wooten campaign

5
In Stacy Cary’s case, the prosecutor’s only argument for why the payments from Ms.
Cary were not “political contributions” was as follows:

The next question is, is it a campaign contribution? Well, for it to be a
campaign contribution and to get this safe harbor, it has to be
properly reported. It’s not in any of the campaign finance reports. We
talked about that a little with Mr. Swihart. We had them in evidence if
you wanted to look at them.

See Stacy Cary v. State, No. PD-1341-14, in the Texas Court of Criminal Appeals, TR 9
at 12 (emphasis added).

Appellee's Brief--Page 24
quickly enough, and that, 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.

Thus, the State’s entire theory and all of its proof consisted of bribery

by political contribution. For example, in opening statement, the prosecutor

described the evidence as follows:

What Spencer does is he creates a situation where he receives
payments from Stacy Cary, and many of these are at the
direction of David Cary….And the money is then used for the
benefit of Suzanne Wooten. One hundred thousand dollars is
spent on the campaign by March 4th….The bills don’t ever get
sent to Suzanne Wooten from Stephen Spencer until he—until
she has the money? And why is that? The reason that is, is
because we have these various laws dealing with campaign
finance….When you raise money, you have to tell the public
about it. If she had reported all these expenses and hadn’t
shown where she was raising the money, those were questions
she would have to answer.

TR 2 at 52, 54.

Similarly, the State’s own testimony repeatedly described the alleged

benefit as direct or indirect transfers of value that were intended to be used

by the Wooten campaign. For example, the State’s forensic auditor and

summary witness testified that the $102,000 that Mr. Spencer spent on

campaign expenses “was actually David Cary’s wife’s money,” that it was

spent “to benefit the campaign,” and that it was used “to run the campaign.”

Appellee's Brief--Page 25
TR 8 at 72, 76, 111. In fact, he described the “flow of money” as follows:

“And then [Mr. Spencer] would get an infusion of money from Stacy Cary

which then he was able to make campaign expenditures for the Wooten

Campaign.” TR 7 at 121-22.

The State also elicited the following from Stephen Spencer:

Q: [Y]ou’re talking about all the money that you fronted the
campaign, is that right? Are those the resources you were
talking about?

A: No.

Q: All the money that the only reason it exists, the only reason that
Suzanne Wooten was able to use that money was because Stacy
Cary gave it to you?

A: I’m sorry. Repeat that. Would you repeat your question?

Q: Without Stacy Cary’s money, Suzanne Wooten doesn’t have
that money that she can use on her campaign?

A: No. She wouldn’t have it through me. No.

TR 4 at 128-29.

Thus, the alleged “benefit” to Ms. Wooten—money for the

campaign--fit squarely within the definition of “political contribution.”

As the Court of Appeals correctly concluded, the result was the failure to

prove an essential element of the case:

Boiled down, the State’s theory in the case was that the Cary’s
secretly funded Wooten’s campaign for elective office. And the only
evidence of a benefit to Wooten in this case was that Stacy Cary

Appellee's Brief--Page 26
 gave money to Spencer and Spencer used it in connection with
Wooten’s campaign.

****

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.

Court of Appeals Opinion at 6, 10-11 (emphasis added); see also id. at 7-9

(summarizing the State’s evidence).

3. The Court Should Reject the State’s Contrary Arguments.

a. Mr. Cary’s “defensive theory.”

On appeal, the State first argues that Mr. Cary’s “defensive theory”

was that the payments to Spencer had nothing to do with Ms. Wooten or her

campaign and that this somehow relieved the State of its burden of proving,

beyond a reasonable doubt, bribery by something other than a political

contribution. The State is incorrect.

In criminal cases, “the burden of proof is always on the State and

always ‘beyond a reasonable doubt.’” Evans v. State, 202 S.W.3d 158, 163

(Tex. Crim. App. 2006). This principle applies to each element of the crime

charged, including, in this case, the requirement that the State prove bribery

by something other than a political contribution. See Homan v. State, 662

S.W.2d 372, 374 (Tex. Crim. App. 1984) (en banc); Tex. Penal Code § 2.01;

Appellee's Brief--Page 27
Tex. Penal Code § 2.02(b) (statutory exceptions must be disproved beyond a

reasonable doubt). Thus, Mr. Cary’s “defensive theory” did not relieve the

State of proving bribery by something other than a political contribution.

The State then argues that Mr. Cary should be estopped from arguing

that the State failed to meet its burden of proof under the doctrine of invited

error. The Court should reject this argument because invited error does not

apply here and because only the State is to blame for its fundamentally

flawed prosecution of Mr. Cary.

According to the case cited by the State, the doctrine of invited error

“defines error of which a party may complain as excluding those actions of

the trial court actually sought by the party in that tribunal.” Prystash v.

State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (quoting George E. Dix

and Robert O. Dawson, 43 Texas Practice—Criminal Practice and

Procedure § 42.141 (Supp. 1999)). Thus, invited error applies “[w]here a

party by a request for a ruling leads the court into error.” Id. (quoting M.,

K., & T. Ry. V. Eyer, 96 Tex. 72, 74-75, 70 S.W.529, 529-30 (1902)); see

also Ripkowski v. State, 61 S.W.3d 378, 389 (Tex. Crim. App. 2001)

(quoting Prystash). As the Fort Worth Court of Appeals summarized, “The

court of criminal appeals has applied invited error when the defendant

‘invites’ the trial court to do something, the trial court does the act, and

Appellee's Brief--Page 28
thereafter the defendant complains of the trial court’s action.” Willeford v.

State, 72 S.W.3d 820, 823 (Tex. App.—Fort Worth 2002). Examples

include a defendant requesting a jury instruction and then complaining on

appeal that the trial court gave it, or requesting that a jury charge be deleted

and complaining on appeal that the trial court did not give it. See Prystash,

3 S.W.3d at 531-32.

The doctrine of invited error does not apply here. Mr. Cary does not

complain on appeal of any action or ruling by the trial court that he induced.

Rather, he appeals because the evidence was insufficient to prove that he

committed bribery by something other than a “political contribution,” which

the State was required to prove beyond a reasonable doubt. Nor did Mr.

Cary take the position, at any point, that if the State’s theory of the case was

correct, then the transfers were not political contributions under the bribery

statute. Thus, the doctrine of invited error does not apply.

More importantly, the reason that the State failed to disprove that the

benefit was a political contribution, and the reason that the State actually

negated this element, was not because of something Mr. Cary “invited.”

Rather, it was because the State charged, presented, and argued the case

based on a fundamentally flawed understanding of the bribery statute, which

assumed, incorrectly, that the term “political contribution” does not include

Appellee's Brief--Page 29
political contributions that are not properly reported or that are otherwise

illegal.

The State chose to charge Mr. Cary under sections 36.02(a)(1) and (2)

of the bribery statute. As the State knew from the beginning of the

prosecution, those subsections 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). The State also clearly realized

that, because “political contribution” is an exception to the statute, the State

had to negate it in the indictment and disprove it beyond a reasonable doubt.

See Tex. Penal Code § 2.02 (b). Accordingly, in the Superseding

Indictment, the State repeatedly charged, in all of the bribery counts and the

Organized Criminal Activity count, that the requisite benefit was “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.” Superseding Indictment, Counts I-VII. Moreover, the

jury instructions defined “political contribution” according to the statute and

required, in all relevant counts, that the benefit had to be something other

than a political contribution.

Thus, the State knew throughout the case, because of the way it

charged Mr. Cary, that it had to negate bribery by “political contribution”

Appellee's Brief--Page 30
beyond a reasonable doubt. Mr. Cary did not induce this, and nothing he did

changed or excused this.

b. The “bribery is an inchoate offense” argument.

Next, the State tries to rewrite the bribery statute by arguing that the

jury could have found Mr. Cary guilty of bribery if he merely caused the

transfers of money to Mr. Spencer with “corrupt intent.” State’s Brief at 19.

If he only had a generalized “corrupt intent,” the State’s argument goes, then

the jury could have found that she did not intend for the money to go to Ms.

Wooten’s campaign, and it would not be a political contribution.

The most obvious problem with the State’s argument is that, under the

bribery statute, a generalized “corrupt intent” is not enough for a conviction.

The applicable sections of the bribery statute require that the defendant must

intend for the alleged “benefit” offered, conferred, or agreed to be conferred

to the recipient 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.

Appellee's Brief--Page 31
Penal Code § 36.02(a)(1) (2).6 This requisite intent distinguishes bribery

from, for example, the gift statute that makes it a Class A misdemeanor to

attempt to influence a politician through a gift with no strings attached. See

Tex. Penal Code § 36.09 (“Offering Gift To Public Servant”).

The State’s own cases confirm that the bribery statute, as applied to

these facts, requires proof of intent to offer, confer, or agree to confer “a

benefit as consideration for the recipient’s decision, opinion,

recommendation, vote, or other exercise of discretion as a public servant,”

under section 36.02(a)(1), or “any benefit as consideration for the recipient’s

decision, vote, recommendation, or other exercise of official discretion in a

judicial or administrative proceeding” under subsection 36.02(a)(2). Tex.

Penal Code §36.02(a)(1), (2). For example, in Martinez v. State, 696

S.W.2d 930, 932-33 (Tex. App.—Austin 1985, pet. ref’d), the Austin Court

of Appeals explained that bribery requires proof that the defendant

“intentionally or knowingly offers or solicits a benefit as consideration for a

variety of official acts of omissions.” The Martinez court further explained

that, although bribery is an inchoate crime, it still requires proof that the

6
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).

Appellee's Brief--Page 32
“inchoate conduct [was] intended to achieve [the] objective” of an

“agreement between the person who offers the bribe and the person who

receives it.” Id. (quoting Model Penal Code §240.1, Comment 4(b), (c)).

Similarly, in Mustard v. State, 711 S.W.2d 71, 75 (Tex. App.—Dallas 1986,

no pet.), the Dallas Court of Appeals held that, although an agreement need

not be reached, in any bribery case, the State’s proof must establish that the

defendant “intends an agreement” proscribed by the bribery statute.

Thus, the State is correct that bribery does not require the formation of

an actual agreement between the actor and the public official. It does,

however, require proof that the actor at least made an offer of a benefit to

the public official with the intent to obtain an agreement with the public

official for consideration that the bribery statute proscribes.

In this case, the Court of Appeals correctly determined that the

only proof at trial of anything even remotely resembling a benefit offered,

conferred, or agreed to be conferred, to Ms. Wooten consisted of the

transfers of money from Ms. Cary to Mr. Spencer that the State says were

used to fund the Wooten campaign. Court of Appeals Opinion at 6.

Accordingly, if Mr. Cary did not intend for the transfers to be used for the

Wooten campaign, then he did not have the requisite intent to commit

bribery. If he did intend for the transfers to be used for the Wooten

Appellee's Brief--Page 33
campaign, then the transfers are political contributions, and the State has

failed to negate the political contribution exception beyond a reasonable

doubt.

Accordingly, evidence that merely establishes a “corrupt intent” is

insufficient to sustain a bribery conviction. Thus, if the jury believed Mr.

Cary merely had a generalized “corrupt intent,” it could not have found him

guilty of bribery. In addition, in this context, a statute that merely

criminalized “corrupt intent” would almost certainly be unconstitutionally

vague and violate constitutional guarantees of Due Process and the First

Amendment.

c. The Court of Appeals’ interpretation and application of the
definition of “political contribution.”

Next, the State attempts to manufacture an issue with the way in

which the Court of Appeals interpreted and applied “political contribution.”

The State argues that the definition of “political contribution” requires that it

be “offered or given with the intent that it be used in connection with a

campaign for elective office,”7 and the fact that the money transferred to Mr.

Spencer was used for the Wooten campaign does not mean that Mr. Cary

intended for it to be used in that way.

7
Tex. Elec. Code § 251.001(3) (definition of “campaign contribution”).

Appellee's Brief--Page 34
 The Court of Appeals interpreted and applied the definition of

“political contribution” correctly. On page 6 of its opinion, the Court of

Appeals quoted the intent language above and highlighted it in bold. Then,

in applying the definition, the Court of Appeals correctly stated that “if

Stacy Cary transferred the 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.” Court of Appeals Opinion at 9 (emphasis added).

As the Court of Appeals correctly concluded, however, other than

money going to the Wooten campaign, there was no evidence of any other

benefit offered, conferred, or agreed to be conferred by anyone, or any such

benefit that Mr. Cary, in particular, intended to be offered, conferred, or

agreed to be conferred, to Ms. Wooten “as consideration for” the actions the

bribery statute requires. This is not surprising because the State based its

entire case on the transfers from the Cary’s to Mr. Spencer that the State said

he used for campaign expenditures. The State’s Brief fails to cite any

evidence in the record otherwise.

Apparently realizing its lack of any other evidence, the State attempts

to make an end run around the bribery statute by arguing that the jury could

have found bribery beyond a reasonable doubt by something other than a

political contribution if it merely believed that Mr. Cary had a non-specific

Appellee's Brief--Page 35
“corrupt intent.” State’s Brief at 22. For the reasons set forth in the

preceding subsection, the Court should reject this argument.

d. The Standard of Review for Sufficiency of the Evidence.

Next, the State devotes several pages of its brief to a discussion of the

Jackson standard. In response, it is sufficient to say that this Court is

certainly very familiar with the Jackson standard and that, for the reasons

explained above, the State’s evidence did not meet it.

Finally, contrary to the State’s position, the law of parties does not

change any of the analysis in this appeal. Under section 7.02(a) of the Texas

Penal Code, 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).

Appellee's Brief--Page 36
B. RESPONSE TO STATE’S ISSUE TWO: The Evidence Was
Insufficient to Support the Bribery Convictions.

In its second issue, the State generally argues that the evidence of

bribery was sufficient. The State is incorrect for the reasons that follow.

1. The Evidence Was Insufficient To Support Any Of The
Three Alleged Types of Official Action.

As explained above, 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).8 Here,

there was insufficient evidence to support the three types of official action

charged.

The indictment charged, and the jury was instructed on, three possible

types of official action from Ms. Wooten as consideration for the alleged

benefit of money transferred to her campaign: (1) becoming a candidate for

8
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).

Appellee's Brief--Page 37
judge; (2) continuing to run for judge; and (3) making favorable rulings as a

judge. Superseding Indictment, Counts I-VII. The evidence of each was

insufficient.

First, becoming a candidate for judge cannot satisfy the official action

requirement 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).9

In deciding to become a 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.

9
Section 36.02(a)(2) does not apply to elections. It applies only to “a judicial or administrative
proceeding.”

Appellee's Brief--Page 38
 Mr. Cary raised this issue below, but the Court of Appeals did not

reach it because it reversed all convictions based on the “political

contributions” issue. In Stacy Cary’s case, the dissenting justice agreed with

this analysis, and the majority assumed this argument to be correct, without

deciding it. See Stacy Cary v. State, No. 05-12-01421-CR, 2014 WL

42612133 at *28, 45 (Tex. App—Dallas 2014).

Second, there was no evidence to support the idea that a benefit was

offered to or conferred on 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 Stacy 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 in Stacy Cary’s appeal explained:

But the State did have to prove that appellant or someone in
league with appellant conferred benefits on Wooten as
consideration for—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.

Appellee's Brief--Page 39
See Stacy Cary v. State, No. 05-12-01421-CR, 2014 WL 42612133 at *45

(Tex. App—Dallas 2014) (FitzGerald, J., dissenting) (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 at trial to show bribery as consideration for

favorable rulings was particularly lacking, both as to whether it happened at

all and as to whether Mr. Cary had the requisite intent. There was evidence

that Mr. Cary believed that Judge Sandoval was a bad judge and was

unfairly biased against him. There was also evidence that David Cary

wanted Judge Sandoval to be defeated. That does not mean, however, that

he wanted to bribe Judge Sandoval's opponent for favorable rulings or that

he thought that Ms. Wooten would accept a bribe for favorable rulings.

More importantly, however, there is no evidence that Ms. Wooten had

any idea that either of the Cary’s was involved in paying anything to Mr.

Spencer. In fact, the evidence shows otherwise. The evidence showed, for

example, that Mr. Spencer kept Ms. Wooten and the Cary’s separate and did

not disclose his involvement with the Cary’s to Ms. Wooten. TR 4 at 173-

74. Mr. Clements, the consultant who worked on advertising and media

Appellee's Brief--Page 40
buys, corroborated that he had never met the Cary’s and had never even

heard their names mentioned. TR 7 at 21. Indeed, as the State’s forensic

auditor and summary witness, who had reviewed virtually every document

and worked on the case for years acknowledged, there was no evidence that

Ms. Wooten was aware that Mr. Spencer was working with Stacy Cary or

receiving money from her. TR 8 at 55-56. Nor was there evidence that Ms.

Wooten was aware that Mr. Spencer needed money from any other source to

pay for the campaign expenses. TR 8 at 55.

There was also no evidence that either of the Cary’s erroneously

believed that Ms. Wooten knew of their involvement. Thus, there was no

evidence that the judge who was supposedly bribed for favorable rulings

knew who was doing the alleged bribing, or that the people who allegedly

wanted favorable rulings thought the judge knew who they were or what

they were doing.

The evidence about what actually happened after Ms. Wooten became

a judge is consistent with this. As noted above, Mr. Cary’s ongoing child

custody dispute was an overwhelming concern for him, and he was

extremely worried about the welfare of his two special-needs daughters. He

did believe that Judge Sandoval had been vindictive and biased against him.

Appellee's Brief--Page 41
 When Judge Wooten had an opportunity to preside over that child

custody case, however, she immediately recused herself on her own

initiative before making any rulings. During a hearing, she indicated, on her

own, that she felt she should recuse herself, mostly because her former

campaign treasurer, Alma Benavides, was representing Mr. Cary’s ex-wife

and it was too close to the end of the campaign. TR 3 at 77-81. She

therefore asked that a motion to recuse her be filed, which it was, and she

granted it. Id. Thus, the supposedly bribed judge immediately pulled herself

off of the only case that mattered to David Cary.10

Moreover, when the case was assigned to an indisputably neutral

judge, he vacated Judge Sandoval’s rulings and ruled in favor of Mr. Cary.

TR 11 at 8055, 8057-62. Thus, Mr. Cary did not need to bribe a judge for

favorable rulings. He just needed a neutral judge.

10
Judge Wooten did not recuse herself from a separate civil suit brought by Stacy Cary
against David Cary’s ex-wife and her attorney for wrongfully obtaining a turnover order
for a bank account that was Ms. Cary’s separate property. That case was so unimportant,
though, that Ms. Cary simply dropped the case before there were any rulings on the
merits. TR 11 at 2684-86 (State’s Ex. 7) (voluntary nonsuit and order of dismissal).
Unlike in Mr. Cary’s child custody case, the recusal motion was made about nine months
after Judge Wooten separated from her former law firm. This was the amount of grace
period that Ms. Wooten had established as the cutoff for recusals. TR 3 at 73-74, 90.
In Stacy Cary’s civil case, Judge Wooten made some mixed discovery rulings, some of
which favored Stacy Cary and some of which did not. TR 2 at 242. Even Ms. Cary’s
opposing counsel agreed that her rulings followed the law and were “easily supportable.”
TR 3 at 110.

Appellee's Brief--Page 42
 2. The Evidence Was Insufficient to Prove That Mr. 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." Tex. Pen. Code §

36.02(a)(1). Under the plain language of the pertinent subsections, 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 or in a

judicial proceeding.

In this case, there is insufficient evidence that any bribe actually

occurred, much less that Mr. Cary intended to take part in it. There is

insufficient evidence that Mr. Cary intended or knew that the payments

made to Mr. Spencer were used "as consideration for" any action or decision

by Suzanne Wooten (which the evidence does not show), much less the three

things alleged in the indictment.

As an initial matter, there is no evidence in the record that Mr. Cary

had ever communicated with Ms. Wooten or even knew her. Indeed, as set

forth above, the evidence shows that Ms. Wooten did not know the Cary’s.

There is also insufficient evidence, and certainly no direct evidence,

that Mr. Spencer ever offered Ms. Wooten to front her expenses, properly or

Appellee's Brief--Page 43
otherwise, as consideration for anything. Assuming for the sake of argument

that this happened, there is no evidence in the record that Mr. Cary knew

what Mr. Spencer and Ms. Wooten had discussed.

Moreover, assuming that Mr. Cary intended for Ms. Cary’s payments

to Mr. Spencer to help the Wooten campaign, and assuming that Mr.

Spencer was improperly financing the campaign, and assuming further that

Mr. Cary knew that he was doing so, these facts might show an intent to

defeat Judge Sandoval through improper means, but they do not show an

intent to bribe Ms. Wooten.

There is also no evidence that Mr. Cary had any idea how, when, or

even if, Mr. Spencer was invoicing the Wooten campaign. There is also no

evidence that Mr. Cary knew how much money Ms. Wooten's campaign had

raised at any point in time. There is no evidence that Mr. Cary was at all

versed in the election law requirements for campaign loans, campaign

expenditures, or campaign reporting. Accordingly, on this record, the jury

could not reasonably infer that Mr. Cary had the necessary intent to commit

bribery.

The State argues that an alleged “subterfuge” involving a letter that

Mr. Spencer addressed to Stacy Cary (which she did not sign), which he

testified memorialized an agreement between himself and Ms. Cary to

Appellee's Brief--Page 44
provide consulting services. The State argues that there was evidence that it

was backdated and that it could show that Mr. Spencer’s explanation of the

fees Ms. Cary paid was not true. Perhaps, but that does not support an

inference that Spencer or Mr. Cary committed bribery, much less in

exchange for deciding to run for office, to “continue” running for office, or

for favorable rulings.

At most, a backdated letter by Mr. Spencer could lead to an inference

that he wanted to hide something. It requires impermissible speculation to

jump to the conclusion that the something was bribery, that it was in

consideration for one of the three alleged official actions charged, and that

Mr. Cary knew about it and intended to further it. See Hooper v. State, 214

S.W.3d 9, 15 (Tex. Crim. App. 2007) (holding that, under the Jackson

standard, "juries are not permitted to come to conclusions based on mere

speculation or factually unsupported inferences or presumptions").

The evidence in this case shows that Mr. Cary wanted a level playing

field in his child custody case and felt that he could not get one with Judge

Sandoval, that he was vindicated by a neutral judge, that Ms. Wooten had no

idea about any involvement between the Cary’s and Mr. Spencer, and the

fact that Ms. Wooten recused herself on her own motion in the child custody

case. Thus, it is far more likely that the Spencer letter reflects concerns

Appellee's Brief--Page 45
about campaign finance laws and the possibility that his activities, which

were unknown to Judge Wooten, might harm her if publicly disclosed. But

jumping to the conclusion that this means bribery as consideration for at

least one of the charged official actions and that Mr. Cary knew that and

supported it requires pure speculation. Accordingly, a rational jury could

not find intent to commit bribery beyond a reasonable doubt from this

evidence. See Hooper v. State, 214 S.W.3d at 15. The dissent in Stacy

Cary’s case agreed. Stacy Cary v. State, No. 05-12-01421-CR, 2014 WL

42612133 at *47 (Tex. App—Dallas 2014) (FitzGerald, J., dissenting).11

11
The State may point to emails to and from Spencer and Mr. Cary about an article
dealing with the Supreme Court’s ruling in Caperton v. A.T. Massey Coal Co., 556 U.S.
868 (2009). Caperton concerned due process limitations on the ability of elected judges
to hear cases involving their campaign contributors. The case was not about bribery, and
the emails do not express concern about bribery. At Mr. Cary’s trial, Mr. Spencer
persuasively explained that Caperton had nothing to do with Judge Wooten. He testified
that he was personally interested in Caperton because he believed that a Fort Worth
Judge family court judge named Randy Catterton had made improper rulings involving a
friend of his and others. TR 4 at 133-37. Mr. Spencer testified that Judge Catterton was
receiving substantial funding from family lawyers and that he was interested in whether
the Caperton ruling might be used to get Judge Catterton recused. See id. Mr. Spencer’s
testimony and the exhibit itself reflect that Mr. Spencer seen a blurb about the ruling and
was asking Mr. Cary to send him a copy because he knew Mr. Cary subscribed to a
service that would allow him to get the entire article, whereas Mr. Spencer did not. See
id. at 136-37; see also TR 11 at 2200 (Tr. Exh. 40 (Mr. Cary transmitting article and
saying, “Here it is.”)). Indeed, in his email to Mr. Cary, Mr. Spencer says, “I think you’ll
understand why I’m interested in this subject matter.” TR 11 at 2201 (Tr. Exh. 40)
(emphasis added). Notably, Mr. Spencer does not suggest that Mr. Cary (“you”) or the
two of them (“we”) would be interested in it. This email exchange does not support the
necessary inferences for bribery as consideration for favorable rulings.

Appellee's Brief--Page 46
C. RESPONSE TO STATE’S ISSUE THREE: The Evidence Was
Insufficient to Support the Convictions for Engaging In
Organized Criminal Activity And Money Laundering.

The State argues only that the evidence was sufficient to support Mr.

Cary’s convictions for Engaging in Organized Criminal Activity (“EOCA”)

and money laundering if the evidence of bribery was sufficient. Because it

was not, for the reasons above, the Court should reverse these convictions.

The State does not attempt to defend tampering with a government

record as a basis to support the EOCA conviction. In this regard, Mr. Cary

simply adopts the reasoning of the Court of Appeals that there was

insufficient evidence to support tampering with a government record as a

predicate offense for EOCA. See Court of Appeals Opinion at 12-16.

Appellee's Brief--Page 47
 CONCLUSION
Mr. Cary respectfully requests that the Court affirm the opinion of the

Court of Appeals, which reversed all of Mr. Cary’s 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 APPELLEE,
DAVID FREDERICK CARY

CERTIFICATE OF SERVICE

This certifies that a true and correct copy of this instrument has been
served on counsel of record on October 2, 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

Appellee's Brief--Page 48
 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 10,728. 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

Appellee's Brief--Page 49