PD-0445-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
October 28, 2015 Transmitted 10/26/2015 3:17:19 PM
No. PD-0445-15 Accepted 10/28/2015 1:27:35 PM
______________________________ ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
______________________________
THE STATE OF TEXAS,
Appellant,
v.
DAVID FREDERICK CARY,
Appellee.
______________________________
From the Court of Appeals, Fifth District of Texas at Dallas
Court of Appeals No. 05-13-01010-CR
______________________________
STATE’S REPLY BRIEF
______________________________
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 State Bar No. 00793549
Joseph.Corcoran@TexasAttorneyGeneral.gov
ADRIENNE McFARLAND
Deputy Attorney General CARA HANNA
for Criminal Justice Assistant Attorney General
EDWARD L. MARSHALL P. O. Box 12548, Capitol Station
Chief, Criminal Appeals Division Austin, Texas 78711
Telephone: (512) 936-1400
*Lead Appellate Counsel Facsimile: (512) 936-1280
_____________________________
ATTORNEYS FOR THE STATE
IDENTITY OF PARTIES AND COUNSEL
To assist this Honorable Court in determining disqualification and
recusal, the State certifies the following is a complete list of the parties
and their attorneys in accordance with Texas Rule of Appellate Procedure
38.1(a).
1. Counsel for the State
JOSEPH P. CORCORAN JESSICA M. MANOLOVICH
(this proceeding) (argument, this proceeding)
Assistant Attorney General Assistant Attorney General
Texas Bar Number 00793549 Texas Bar Number 24055632
GRETCHEN MERENDA CARA HANNA
(Dallas Court of Appeals) (argument, Dallas Court of Appeals)
Assistant Attorney General Assistant Attorney General
Texas Bar Number 24010233 Texas Bar Number 24055622
ELIZABETH GOETTERT
(Dallas Court of Appeals)
Assistant Attorney General
Texas Bar Number 24036646
HARRY WHITE CATHERINE E. CHOPIN
(trial court) (trial court)
(Former) Assistant Attorney General (Former) Assistant Attorney General
Texas Bar Number 24013740 Texas Bar Number 24055307
P.O. Box 12548, Capitol Station
Austin, Texas 78711
i
2. Appellee
DAVID CARY
3. Counsel for Appellee on appeal and in this proceeding
JOHN M. HELMS
Texas Bar Number 09401001
Broden, Mickelsen, Helms & Snipes LLP
2600 State Street
Dallas, TX 75204
4. Counsel for Appellee at trial
KERRY LAWSON PEDIGO
Texas Bar Number 15716500
8401 North Central Expressway
Suite 630
Dallas, Texas, 75225
5. Trial Court Judge
THE HONORABLE JOHN R. NELMS
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL .............................................. i
TABLE OF CONTENTS .........................................................................iii
INDEX OF AUTHORITIES ..................................................................... v
STATEMENT OF FACTS ........................................................................ 2
STATEMENT OF THE ISSUES PRESENTED IN THIS REPLY .......... 2
SUMMARY OF THE ARGUMENT ......................................................... 2
ARGUMENT ............................................................................................. 3
I. ISSUE ONE AND TWO: The Lower Court Erred Because a
Reasonable Juror Could Have Found that Appellee Did Not
Intend the Payments to Constitute “Political Contributions,”
Irrespective of How the Money was Ultimately Spent, and the
Evidence Was Legally Sufficient to Support the Jury’s
Verdicts for Bribery. ......................................................................... 3
A. The lower court erred in reviewing the sufficiency of the
evidence based upon an outdated and improper
standard of review. .................................................................. 4
B. The lower court erred in ignoring the testimony elicited
by Appellee that these payments were not political
contributions, and in affording weight to the State’s
arguments at trial ................................................................... 7
C. The lower court erred in holding that the intent required
for bribery is intertwined with the intent that defines a
political contribution. .............................................................. 9
iii
TABLE OF CONTENTS, Continued
II. ISSUE THREE: The Lower Court Erred in Finding
Insufficient Evidence to Support Appellee’s Convictions for
Engaging in Organized Criminal Activities (EOCA) and
Money Laundering. ........................................................................ 13
PRAYER FOR RELIEF .......................................................................... 14
CERTIFICATE OF SERVICE ................................................................ 15
CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF
APPELLATE PROCEDURE 9.4 ............................................................ 16
iv
INDEX OF AUTHORITIES
Cases
Bourg v. State, 484 S.W.2d 724, 726 n.1 (Tex. Crim. App. 1972) ............ 7
Brooks v. State 323 S.W.3d 893 (Tex. Crim. App. 2010) ...................... 5, 6
Butler v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989) .......................... 5
Carlsen v. State, 654 S.W.2d 444 (Tex. Crim. App. 1983)........................ 5
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) ......................... 5
Delay v. State 443 S.W.3d 909 (Tex. Crim. App. 2014) ............................ 5
Denby v. State, 654 S.W.2d 457 (Tex. Crim. App. 1983) .......................... 5
Freeman v. State, 654 S.W.2d 450 (Tex. Crim. App. 1983)...................... 5
Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) .......................... 5
Jackson v. Virginia, 443 U.S. 307 (1979) ...................................... 2, 5, 6, 9
Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ......................... 5
Wilson v. State, 654 S.W.2d 465 (Tex. Crim. App. 1983) ......................... 5
Statutes
Tex. Election Code § 251.001 .................................................................. 10
Tex. Penal Code § 36.02 .................................................................. passim
v
STATEMENT OF FACTS
The State relies upon the Statement of Facts presented in its
opening brief in this proceeding (“St. Br.”), as well as the statement of
facts provided in the State’s response to Appellee’s brief in the lower
court. St. Br. at 3–6; David v. Cary, No. 05-13-01010-CR, “State’s Brief”
at 2–48.
STATEMENT OF THE ISSUES PRESENTED IN THIS REPLY
1. The lower court erred because a reasonable juror could
have found that Appellee did not intend the relevant
payments to Spencer to constitute “political
contributions,” irrespective of how those payments were
ultimately spent by Wooten, and the evidence was
legally sufficient to support the jury’s verdicts.
2. The lower court erred in finding insufficient evidence to
support Appellee’s convictions for engaging in organized
criminal activity and money laundering.
SUMMARY OF THE ARGUMENT
In the interest of judicial economy, the State primarily relies on its
opening brief and submits the instant abbreviated reply to Appellee’s
brief in response. Firstly, in failing to address the lower court’s erroneous
application of the standard for sufficiency of the evidence in Jackson v.
Virginia, 443 U.S. 307 (1979), Appellee concedes this point of error.
2
Additionally, both the lower court and Appellee mistakenly fuse together
the intent required for making a political contribution, with the intent
required to commit the criminal offense of bribery. For these reasons,
and those previously asserted by the State, this Court should reverse the
lower court’s ruling and affirm Appellee’s convictions.
ARGUMENT
I. ISSUES ONE AND TWO: The Lower Court Erred Because a
Reasonable Juror Could Have Found that Appellee Did Not Intend
the Payments to Constitute “Political Contributions,” Irrespective
of How the Money Was Ultimately Spent, and the Evidence Was
Legally Sufficient to Support the Jury’s Verdicts for Bribery.
For purposes of this appeal, the question is whether a reasonable
juror could conclude, beyond a reasonable doubt, that the payments made
by Appellee were not “political contributions.” Once again, the State
charged Appellee under Sections 36.02(a)(1) and (a)(2) of the Penal Code,
which thus triggered Section 36.02(d):
It is an exception to the application of Subdivisions (1), (2),
and (3) of Subsection (a) that the benefit is a political
contribution as defined by Title 15, Election Code, or an
expenditure made and reported in accordance with Chapter
305, Government Code.
3
Tex. Penal Code § 36.02(d); see id. at § 2.02 (a), (b).1
A. The lower court erred in reviewing the sufficiency of the
evidence based upon an outdated and improper
standard of review.
Both the lower court and appellee mistakenly emphasize that the
State’s evidence in connecting the payments from Appellant and his wife
to Wooten’s benefit, indicates the State failed to prove all the elements of
bribery—namely, failing to negate the exception that the transfers
constituted political contributions. See Tex. Penal Code § 36.02(d). This
single interpretation of the State’s tracing of funds to Wooten’s campaign
purportedly demonstrates the impossibility that sufficient evidence
supports the jury’s verdict of guilty in Appellee’s six counts of bribery.
However, the adoption of this reasoning would—in application to future
cases on appellate review—ultimately amount to requiring the State to
negate ALL “outstanding reasonable hypothes[e]s inconsistent with the
guilt of the accused”—a standard rejected by this Court nearly 25 years
1 Where a statute expressly includes the provision, “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.”
4
ago. Geesa v. State,2 820 S.W.2d 154, 160–61 (Tex. Crim. App. 1991) (en
banc), overruled on other grounds by Paulson v. State, 28 S.W.3d 570
(Tex. Crim. App. 2000).
Appellee does not contest that the lower court obliquely referenced
the correct standard of review for the sufficiency of the evidence, as
dictated in Jackson v. Virginia, 443 U.S. 307 (1979), through the court’s
citation to Delay v. State,3 which, in turn, cited Brooks v. State.4
But, despite its indirect reference, the lower court failed to conduct
its analysis under Jackson. More specifically, while citing evidence that
2 In its opening brief, the State mistakenly identified Geesa as upholding the
“reasonable-hypothesis-of-innocence analytical construct,” and that such standard
was overruled by Paulson, 28 S.W.3d 570. St. Br. at 32 fn. 23, 36–37. Rather, Geesa
rejected this evidentiary standard of review (reviewing the record for evidence
supporting any “outstanding reasonable hypothesis of innocence”) for criminal cases
based upon circumstantial evidence, and overruled this Court’s prior cases
supporting the use of that standard. Geesa, at 160–61 (citing as overruled Carlsen v.
State, 654 S.W.2d 444 (Tex. Crim. App. 1983); Freeman v. State, 654 S.W.2d 450 (Tex.
Crim. App. 1983); Denby v. State, 654 S.W.2d 457 (Tex. Crim. App. 1983); Wilson v.
State, 654 S.W.2d 465 (Tex. Crim. App. 1983); Butler v. State, 769 S.W.2d 234 (Tex.
Crim. App. 1989), “and their progeny to the extent they conflict with this opinion.”).
Also, the grounds upon which Paulsen overruled Geesa pertained to jury instructions
on the definition of “beyond a reasonable doubt.” Paulson, 28 S.W.3d at 573.
3 443 S.W.3d 909, 912 (Tex. Crim. App. 2014), republished at 465 S.W.3d 232
(Tex. Crim. App. 2014).
4 323 S.W.3d 893, 899–902, 911 (Tex. Crim. App. 2010) (discarding the factual
sufficiency standard under Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)
and holding the legal sufficiency standard set out in Jackson is to be used when
reviewing any challenge to the sufficiency of the evidence).
5
supported the State’s purported failure to negate the exception dictated
in § 36.02(d), the lower court failed to appropriately “consider[ ] all of the
evidence in the light most favorable to the verdict” to determine whether
“a jury [was] rationally justified in finding guilt beyond a reasonable
doubt.” Brooks, 323 S.W.3d at 898–99 (citing Jackson, 443 U.S. at 319).
As presented in the State’s opening brief in this proceeding, the Stacy
Cary panel—while not controlling upon this Court or the lower court—
summarized the evidence in support of the jury’s findings and verdict,
thus properly applying Jackson in its review of the sufficiency of the
evidence. St. Br. at 35 (citing Stacy Cary, 2014 WL 4261233 at *34); see
St. Br. at 4–5 (providing record citations to evidence in support of
sufficiency in the instant case, similar to the facts established in Stacy).
Because the lower court in the instant case failed to properly apply
the correct standard of review for sufficiency of the evidence under
Jackson, this Court should reverse the lower court’s ruling and affirm
Appellant’s convictions for bribery.
6
B. The lower court erred in ignoring the testimony elicited
by Appellee that these payments were not political
contributions, and in affording weight to the State’s
arguments at trial.
Both the lower court and Appellee assert that the State’s theory of
its case against Appellant—evidenced through the State’s opening and
closing arguments—demonstrates insufficient evidence to support the
jury’s verdict of guilty. Appellee’s Brief (“A.B.”) at 20, 24 n. 5, 25; David
Cary v. State, 460 S.W.3d 731, 735–38 (Tex. App.–Dallas 2015). But
again, arguments at trial do not comprise evidence, nor may the jury
consider attorney opening or closing arguments as evidence. See Bourg
v. State, 484 S.W.2d 724, 726 n.1 (Tex. Crim. App. 1972) (“After a concise
ruling it is often good practice for the trial court to instruct the jury that
while counsel may make reasonable deductions from the evidence that
argument of counsel is not evidence and should not be considered as such,
that the jurors are the judges of the facts, the credibility of the witnesses
and weight to be given to their testimony.”) (emphasis added).
Alternatively, should the State’s theory as presented in its opening
and closing arguments be considered as support for Appellee and his
wife’s payments constituted political contributions, so should Appellee’s
7
defense theory presented at trial through the cross-examination of State
witness James Stephen Spencer, also be considered as support for the
jury’s finding that these payments were not political contributions. See
St. Br. at 10–14 (Appellee eliciting testimony that the Carys paid Spencer
pursuant to a contract with—and services provided to—Stacy Cary (e.g.,
4 RR 173, 175, 153–56, 148–49; 5 RR 12–20, 118; see generally 4 RR 167–
75); Appellee eliciting from Spencer affirmations that none of the
payments from the Carys were, or could have constituted, political
contributions (e.g., 4 RR 172, 173, 174–75, 186–87; 5 RR 118)).
Moreover, the State elicited testimony from Spencer that the
payments he received from Appellant’s wife Stacy were for services he
rendered, as generally described in a contract they entered together. 3
RR 194–95, 226–32, 237–68 (detailing the projects Spencer provided to
Stacy); 4 RR 17–23. During the State’s direct examination, Spencer also
denied asking Appellee to make a campaign contribution to former-Judge
Wooten (4 RR 128), and denied letting Stacy Cary know about Wooten (5
RR 93–102). Finally, State’s witness John “Jay” Valentine testified that
Spencer bragged several times that he “owned” Wooten. 8 RR 158–59.
8
Since Jackson provides that all the evidence is to be viewed in the
light most favorable to the verdict, Spencer’s and Valentine’s testimony
supports a rational juror’s finding that the Carys’ payments were not
political contributions, and that the State thus negated the exception to
the application of bribery, provided in § 36.02(d).
C. The lower court erred in holding that the intent required
for bribery is intertwined with the intent that defines a
political contribution.
As an initial matter, Appellee does not contest that it is
unnecessary to prove a bilateral agreement between the recipient and the
individual offering the bribe, in order for that individual to be convicted
for bribery. See A.B. at 32–33. But—like the lower court—Appellee
mistakenly asserts that the State presented evidence supporting only one
of two theories of intent, each of which require Appellee’s acquittals: (1)
Appellee did not have the required intent for bribery if he “did not intend
for the transfers to be used for the Wooten campaign,” or (2) that Appellee
must have intended the transfers to be used in connection with Wooten’s
campaign, and thus the State failed to negate § 36.02(d). A.B. at 33–34
(emphasis in original); see David Cary, 460 S.W.3d at 736–38.
9
As to Appellee’s first contention, his theory would mean that any
benefit transferred to a “public servant”5 or a target who possesses or will
possess “official discretion in a judicial or administrative proceeding”—
would constitute political contributions, if such benefits were bestowed
closely to the recipient’s campaign or campaign efforts. Appellee’s theory
thus effectively guts a significant portion of the bribery statute.
Regarding Appellee’s latter theory, the State has never presented
an argument that such a finding of intent requires a reversal of the lower
court’s ruling and acquittal, and thus an affirmation of Appellee’s
convictions.
But, as detailed in the State’s opening brief, the requisite intent for
bribery as defined by § 36.02(a)(1), (2), and (3), is wholly separate from
the intent required under the definition of a campaign contribution under
the Election Code. St. Br. at 17–26; see Tex. Election Code § 251.001(2),
(3), (5), (6) (West. 2008). More specifically, a campaign contribution—
5 Under section 1.07(41) of the Penal Code, in relevant part “‘public servant’
means a person elected . . . as one of the following, even if he has not yet qualified for
office or assumed his duties: . . . an officer, employee, or agent of the government . . .;
an arbitrator, referee, or other person who is authorized by law or private written
agreement to hear or determine a cause or controversy; or . . . a candidate for
nomination or election to public office[.]” Id. at (41)(A), (C), (E) (emphasis added).
10
encompassed within the definition of a political contribution—requires
that some object of value is (a) directly or indirectly transferred to a
candidate and (b) intended for use in connection with a campaign for
elective office. Id.
Contrary to the first of Appellee’s purported theories of intent for
bribery, supra, sections 36.02(a)(1) and (2) require the State to negate the
bribe-offeror’s intention that the payments be used in connection with the
campaign and, instead, prove that the offeror intended his offering to be
consideration for the recipient’s action or exercise of discretion as a public
servant, or action or exercise of official discretion in a judicial proceeding.
Stated another way, a rational juror—when viewing the evidence in the
light most favorable to the verdicts—could find that Appellee did not
possess the intention that his monies be earmarked for Wooten’s
campaign in some manner. Rather, a rational juror could have concluded
that the State proved, beyond a reasonable doubt, that Appellee did not
care how his money was spent, so long as Wooten was induced to run,
continued campaigning for the bench for the 380th District Court of
Collin County, or provided favorable rulings to him or his wife. Indeed,
11
such a finding by a rational juror is supported by Appellee’s assertions
that no evidence was presented to demonstrate: the Carys or Wooten
knew or knew of each other; Wooten knew Spencer’s source for fronting
her campaign expenses under an alleged “turnkey agreement;” Appellee
had any knowledge of Spencer’s actions as Wooten’s campaign manager;
and that Appellee “was at all versed in the election law requirements” in
relation to campaign funds or reporting. A.B. at 40–41, 44.
Stated another way: the State could not have proven the requisite
intent for a political contribution, since neither Appellee, his wife, nor
Wooten knew anything about each other, and Appellee was unaware of
the laws governing campaign funding or reporting. Further, that the
monies provided by Appellee and his wife were ultimately used in
connection with Wooten’s campaign bears no weight in reviewing the
evidence of Appellee’s intent at the time those transfers were made.
Lastly, Appellee argues that there is insufficient evidence to
support the jury’s guilty verdicts because Wooten recused herself or took
neutral actions in the Carys’ litigation once she assumed the bench. A.B.
at 41–42. But this argument echoes Appellee’s argument that no bribery
12
could have occurred without Wooten knowing or knowing of the Carys.
And again: no bilateral agreement is required to prove up bribery as
alleged in the instant case—only that Appellee intended to obtain some
“decision, opinion, recommendation, vote, or other exercise of discretion
as a public servant,” or “other exercise of official discretion in a judicial”
proceeding, through an offer, conferment or agreement of conferment, of
a benefit for such action or inaction. § 36.02(a)(1), (2). Thus, whether or
not the intended recipient knows, acknowledges, or agrees to take a
certain action as a public servant or in a judicial proceeding, has no
bearing on the proof required of the State—only that the offeror intends
or knows that he is offering, conferring, or agreeing to confer upon
someone else, a benefit in consideration for a specific action.
II. ISSUE THREE: The Lower Court Erred in Finding Insufficient
Evidence to Support Appellee’s Convictions for Engaging in
Organized Criminal Activity (EOCA) and Money Laundering.
The State and Appellee are in agreement that, should this Court
reverse the lower court’s ruling on sufficiency of the evidence and
subsequent acquittal in Counts 2 through 7 (bribery), the lower court’s
reversal and acquittal of Appellee in his convictions for EOCA and money
13
laundering—both of which are predicated upon bribery—must also be
reversed. St. Br. at 38; A.B. at 47.
PRAYER FOR RELIEF
For the foregoing reasons, the State respectfully requests that this
Court reverse the lower court, and affirm Appellee’s convictions on all
counts.
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
14
/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN*
*Lead Counsel Supervising Attorney
for Non-Capital Appeals
Criminal Appeals Division
State Bar No. 00793549
Joseph.Corcoran@TexasAttorneyGeneral.gov
CARA HANNA
Assistant Attorney General
P. O. Box 12548, Capitol Station
Austin, Texas 78711
Tel.: (512) 936-1400
Fax: (512) 936-1280
ATTORNEYS FOR THE STATE
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 John Michael Helms Jr., Attorney for
Appellee via electronic mail.
Moreover, I do hereby certify that if the email addresses for the
designated attorney is not on file with the electronic filing manager, a
15
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
CERTIFICATE OF COMPLIANCE WITH
TEXAS RULE OF APPELLATE PROCEDURE 9.4
This brief complies with Tex. R. App. Proc. 9.4(i)(D) in that it
contains 3,018 words, as calculated pursuant to Tex. R. App. Proc. 9.1(i),
in Microsoft Word 2013, Century, 14 points.
/s/ Joseph P. Corcoran
JOSEPH P. CORCORAN
Assistant Attorney General
16