Cary, David Frederick

PD-0445-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
No. PD-0445-15
August 18, 2015
Transmitted 8/17/2015 3:41:32 PM
Accepted 8/18/2015 8:10:48 AM
______________________________ 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 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

P. O. Box 12548, Capitol Station
EDWARD L. MARSHALL Austin, Texas 78711
Chief, Criminal Appeals Division Telephone: (512) 936-1400
Facsimile: (512) 936-1280
*Lead Appellate Counsel
_____________________________
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 (this proceeding)
Assistant Attorney General
Texas Bar Number 00793549

CARA HANNA (Dallas Court of Appeals)
Assistant Attorney General
Texas Bar Number 240556-22

GRETCHEN MERENDA (Dallas Court of Appeals)
Assistant Attorney General
Texas Bar Number 24010233

ELIZABETH GOETTERT (Dallas Court of Appeals)
Assistant Attorney General
Texas Bar Number 24036646

CATHY E. CHOPIN (trial court)
Assistant Attorney General
Texas Bar Number 24055307
 HARRY WHITE (trial court)
(former) Assistant Attorney General
Texas Bar Number 24013740

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

2. Appellee
DAVID CARY

3. Counsel for Appellee on appeal
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

iii
 TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ............................................. ii

TABLE OF CONTENTS ......................................................................... iv

INDEX OF AUTHORITIES .................................................................... vi

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

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

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

STATEMENT OF FACTS ........................................................................ 3

SUMMARY OF THE ARGUMENT ......................................................... 6

ARGUMENT ............................................................................................. 9

I. ISSUE ONE: The Lower Court Erred Because a Reasonable
Juror Could Have Found—As This Jury Actually Found—
That Appellee Did Not Intend the Payments to Spencer to
Constitute “Political Contributions,” Irrespective of How the
Money was Ultimately Spent by Wooten ........................................ 9

A. The lower court ignores the fact that the defensive
theory at trial was that these payments were not
political contributions ........................................................... 10

B. As charged here, bribery is an inchoate offense ................... 15

C. The lower court misconstrues the bribery statute as it
relates to proof concerning a “political contribution.” .......... 19

iv
 TABLE OF CONTENTS, Continued

D. The proper standard of review for legal sufficiency
challenges .............................................................................. 26

1. Jackson v. Virginia....................................................... 26

2. The law of parties......................................................... 28

3. The lower court misapplies Jackson ............................ 29

II. ISSUE TWO: The Evidence at Trial Was Legally Sufficient
For a Rational Juror to Find, Beyond a Reasonable Doubt, All
of the Elements of Bribery ............................................................. 34

III. ISSUE THREE: The Evidence at Trial Was Legally Sufficient
to Affirm Appellee’s Convictions for Engaging in Organized
Criminal Activity and Money Laundering .................................... 38

PRAYER FOR RELIEF .......................................................................... 38

CERTIFICATE OF SERVICE ................................................................ 40

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF
APPELLATE PROCEDURE 9.4 ............................................................ 41

v
 INDEX OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................. 26, 31

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ..................... 27

David Cary v. State, 460 S.W.3d 731 (2015) .................................. passim

Delay v. State, 443 S.W.3d 909 (Tex. Crim. App. 2014) ......................... 29

Ervin v. State, 331 S.W.3d 49 (Tex. App.–Houston [1st Dist.] 2010) .... 27

Garza v. State, 841 S.W.2d 19 (Tex. App.—Dallas 1992)....................... 28

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011) .......................... 27

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) ........................ 32

Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) ...................... 28

Hayes v. State, 265 S.W.3d 673 (Tex. App.–Houston [1st Dist.] 2008) . 28

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .......................... 27

Hubbard v. State, 668 S.W.2d 419 (Tex. App.—Dallas 1984) ................ 18

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) ................... 27, 33

Jackson v. Virginia, 443 U.S. 307 (1979) ........................................ 1, 7, 27

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

Houston [1st Dist.] 2014) ..................................................................... 31

vi
Martinez v. State, 696 S.W.2d 930 (Tex. App.—Austin 1985)15, 16, 18,

19

Mustard v. State, 711 S.W.2d 71 (Tex. App.—Dallas 1986) ............ 18, 21

Patterson v. State, 950 S.W.2d 196 (Tex. App.—Dallas 1997)............... 29

Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ....................... 32

Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999)........................ 14

Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1994) ..................... 29

Stacy Cary v. State, No. 05-12-01421-CR, 2014 WL 4261233 (Tex. App.—

Dallas 2014) .................................................................................. 2, 8, 35

Trenor v. State, 333 S.W.3d 799 (Tex. App.–Houston [1st Dist.] 2010) 29

Statutes

Tex. Election Code § 251.001 ...................................................... 20, 21, 32

Tex. Pen. Code § 36.02(a)(1)–(3) ............................................................. 25

Tex. Pen. Code § 36.02(a)(4) .................................................................... 25

Tex. Pen. Code Ann. §§ 7.01(a), 7.02(a)(2) .............................................. 28

Tex. Penal Code § 36.02(a) ...................................................................... 34

Tex. Penal Code § 36.02(a)(2) .................................................................. 15

Tex. Penal Code § 36.02(d) ........................................................................ 9

vii
Other Authorities

Model Penal Code § 240.1 ....................................................................... 18

viii
 STATEMENT OF THE CASE

This appeal arises from a criminal conviction in the 366th Judicial

District Court of Collin County, Texas. Following a jury trial, Appellee,

David Cary, was convicted of one count of engaging in organized criminal

activity under section 71.02(a) of the Penal Code, six counts of bribery

under section 36.02 of the Penal Code, and one count of money laundering

under section 34.02 of the Penal Code. 2 CR 654–58, 681–96. 1 Appellee

was sentenced by the jury in each count to fourteen years’ imprisonment,

all sentences to run concurrently. 10 RR 113–16; 1 CR 666–76. Appellee

appealed. 2 CR 1027.

On March 25, 2015, after finding the evidence to be legally

insufficient under the standard set forth in Jackson v. Virginia, 2 the court

of appeals reversed the trial court’s judgment of conviction and sentence

on all counts, and entered a judgment of acquittal. Cary v. State, 460

1 “CR” refer to the Clerk’s Record of papers filed in the trial court,
preceded by the volume number and followed by the page number(s). “RR”
refers to the Reporter’s Record of the transcribed trial proceedings which
occurred April 16, 2013 through April 26, 2013, preceded by the volume
number and followed by the page number(s).
2 443 U.S. 307 (1979).
1
S.W.3d 731 (Tex. App.—Dallas Mar. 25, 2015) (“David Cary”). The State

did not seek rehearing. This Court granted the State’s petition for

discretionary review (PDR). Order, David Cary v. State, PD-1341-14

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

STATEMENT REGARDING ORAL ARGUMENT

The Court has already indicated that it would permit oral

argument. Id. The State notes, however, that there is a related appeal

involving Appellee’s spouse, which is presently pending in Stacy Cary v.

State, PD-1341-14 (“Stacy Cary”), addressing nearly identical legal

issues, on a substantially similar record. See Stacy Cary v. State, No. 05-

12-01421-CR, 2014 WL 4261233 (Tex. App.—Dallas 2014) (the “Stacy

Cary opinion”). Depending on the timing and nature of the Court’s

decision in the Stacy Cary appeal, oral argument may be unnecessary.

STATEMENT OF THE ISSUES

1. The lower court erred because a reasonable juror could
have found—as this jury actually 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.

2
 2. The evidence at trial was legally sufficient for a rational
juror to find, beyond a reasonable doubt, all of the
elements of bribery.

3. The evidence at trial was legally sufficient to affirm
Appellee’s convictions for engaging in organized
criminal activity and for money laundering.

STATEMENT OF FACTS

The reporter’s record in this appeal is lengthy, and includes the

testimony of numerous witnesses at trial, as well as voluminous

documents admitted in evidence. The lower court incorporated by

reference the 23-page summary of evidence from the Stacy Cary opinion,

since the evidence presented in both cases were nearly identical. 3 David

Cary, 460 S.W.3d at 733 (citing Stacy Cary, 2014 WL 4261233). In sum,

the evidence establishes that Appellee had ongoing litigation before

Judge Sandoval in the 380th District Court in Collin County, and was

3 Additionally, the State summarized in its reply brief before the lower
court the testimony from David Stinnett, an employee with Appellee’s former
company, and Brian Webb, President of the Texas Family Law Foundation,
was provided by the State; neither of the two witnesses were called to testify
in Stacy Cary. Compare State’s Br. at 45–48, with Stacy Cary, 2014 WL
4261233 at *3–26, 11 n. 8 (describing testimony of Stacy Cary’s brother, who
did not testify in Appellee’s case).

3
dissatisfied by several adverse rulings in that litigation. 4 Appellee

developed a scheme to identify and to bribe a judicial candidate who

would challenge Judge Sandoval in the upcoming election, and ensure

that Appellee’s family would receive favorable rulings in their litigation

pending before Judge Sandoval’s court. Namely, Appellee caused

approximately $150,000 to be paid to an intermediary—James Stephen

Spencer5—to offer, confer, or agree to confer a benefit—ultimately, to

Suzanne Wooten 6—as consideration for Wooten’s act of proceeding or

continuing to run for office as a state district judge, or for presiding over

and issuing favorable rulings to Appellee in cases before her as judge. To

disguise these payments, Appellee’s spouse Stacy created a fictitious

consulting agreement with Spencer, 7 supported by invoices—disclosed in

pre-trial discovery by both Spencer and Stacy—for “work” performed by

42 RR 99–101, 105–06, 112–122, 124–27, 129–36; 3 RR 189–95, 199–201;
8 RR 152–54; see 8 RR 192–93..
5 3 RR 247–48; 4 RR 41–43, 65.
63 RR 204–10 (attorney Michael Puhl declined to run), 145–47 (same),
210–12 (attorney Brian Loughmiller also declined); 212–18 (discussions with
Wooten).
7 State’s Exhibit (“SX”) 130 (11 RR at WOS01547–48); 3 RR 195–96, 237–
41, 230, 232, 243.

4
Spencer, matching the dates and monetary amounts transferred from

Stacy to Spencer. 8 At trial, Spencer defended his consulting work for

Stacy,9 and stated his view that the income he had “earned” pursuant to

that consultation agreement as “his” money, free to be spent on Wooten’s

campaign as her campaign manager under a turnkey agreement. 10

Spencer testified he intentionally did not discuss his campaign work with

the Carys, or his Cary-consulting work with Wooten.11

The jury was charged that Appellee could be found guilty as either

a principal or party to the bribery offenses, acting in concert with his

spouse Stacy Cary. For purposes of this appeal, Appellee’s bribery

convictions constituted a legal predicate for the remaining counts, and

hence, a finding of legal insufficiency as to the bribery counts led the

8 3 RR 241–52; 5 RR 115–16; see 4 RR 17–21, 121.
9 3 RR 246–47, 195–96, 237–41, 248–50, 253–65, 264–68; 4 RR 168, 20–
22; 5 RR 12–17.
10 4 RR 41–44, 174; see id. at 128–36 (denying he had referred to Appellee

and Stacy as sources for Wooten’s campaign, in an internal email), 88–89
(stating he had believed Wooten would pay him back—and did pay him back—
for the campaign costs he fronted); see 7 RR 24–25, 28–29; see also SX 62
(campaign finance reports filed by Wooten) (11 RR at OAG/WOS 020758–59,
020805–06, 020852–53, 020899–900, 020908–09).
11 4 RR 173–74, 127–29.

5
lower court to reverse and acquit all the remaining counts. David Cary,

460 S.W.3d at 738–41.

SUMMARY OF THE ARGUMENT

The court of appeals held that the evidence at trial was legally

insufficient to sustain the conviction for all counts because, it reasoned,

the State’s proof at trial established that Appellee’s payments to Wooten

were ultimately used by third parties to fund Wooten’s campaign for

judge. As a result, the lower court reasoned, “the State did not meet its

burden to prove bribery beyond a reasonable doubt by something other

than a political contribution.” And because bribery was the primary legal

predicate for the remaining counts, the lower court determined that the

evidence was legally insufficient to sustain Appellee’s conviction for those

counts, too.

The lower court’s analysis suffers from several fundamental

defects. First, the lower court misconstrues the bribery statute as it

relates to proof concerning a “political contribution.” In other words, the

lower court supplanted the actual measure of proof as governed by the

relevant statutes, i.e., the defendant’s subjective intent about the

6
purpose of a particular payment, with the court’s post-hoc determination

regarding the objective legal status of those payments. Second, the lower

court appears to have misconstrued the measure for legal sufficiency

under Jackson v. Virginia. Specifically, the lower court re-weighed the

evidence presented at trial to animate a determination rejected by a

properly-instructed jury—by resolving all credibility choices and

inferential conflicts against those explicit and implicit determinations.

This was improper. When the jury’s verdict is analyzed pursuant to the

correct legal measure, as the majority did in the Stacy Cary appeal, the

lower court’s error becomes plain.

Perhaps more troubling, the opinion below is inconsistent with the

distinct, although substantively identical, 12 panel decision in Stacy Cary.

Although the Stacy Cary opinion is unpublished, two justices on the

Stacy Cary panel resolved an almost identical question of legal

sufficiency under Jackson against Stacy Cary, and affirmed her

conviction—on a materially identical record. See Stacy Cary, 2014 WL

12 Without adopting the lower court’s analysis on this point, the State
directs the Court to the lower court’s description of the nominal differences
between the two prosecutions. See David Cary, 460 S.W.3d at 733, n.1.
7
4261233, at *33–34. In other words two justices on the Stacy Cary panel

determined that a rational juror could have found the State disproved the

political contribution element beyond a reasonable doubt, on

substantially the same evidence. While the panel in this proceeding was

not technically bound by the Stacy Cary opinion (because the Stacy Cary

opinion is unpublished), the moral and logical tension between the two

outcomes is problematic. For example, how can Stacy Cary be guilty

while Appellee, her spouse, is acquitted of the same crimes, on essentially

the same evidence? Moreover, the fact that the Stacy Cary panel found

legally sufficient evidence to support the convictions in that appeal is, by

definition, considerable support for the State’s argument that the panel

in this appeal resolved the question incorrectly—assuming, arguendo,

that the majority justices on the Stacy Cary panel are themselves

rational.

8
 ARGUMENT

I. ISSUE ONE: The Lower Court Erred Because a Reasonable Juror
Could Have Found—As This Jury Actually Found—That Appellee
Did Not Intend the Payments to Spencer to Constitute “Political
Contributions,” Irrespective of How the Money was Ultimately
Spent by Wooten.

There are four basic alternatives to proving bribery under the

relevant statute, each contained in Sections 36.02(a)(1) through (4) of the

Penal Code. Here, the State charged Appellee under Sections 36.02(a)(1)

and (a)(2),13 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.

Tex. Penal Code § 36.02(d); see id. at § 2.02 (a), (b). 14 For purposes of this

appeal, the question then becomes whether a reasonable juror could

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

Appellee were not “political contributions.”

13 1CR 159–64..
14 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.”
9
 On this issue, the lower court found that the evidence adduced at

trial was insufficient to sustain Appellee’s six convictions for bribery.

David Cary, 460 S.W.3d at 738. Specifically, the lower court found that

“the only evidence of a benefit to Wooten in this case was that Stacy Cary

gave money to Spencer and Spencer used it in connection with Wooten’s

campaign.” Id. at 736 (emphasis added). The court then continued:

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.

Id. at 738. As the State will demonstrate below, this analysis is flawed

for several reasons.

A. The lower court ignores the fact that the defensive theory at
trial was that these payments were not political
contributions.

Here, the defense’s theory at trial was that the transfer of payments

to Spencer was actually compensation from Appellee’s wife for his

supposed work under an alleged consulting agreement, and that Appellee

had no knowledge, whatsoever, that Spencer used that money in relation

to Wooten’s decision to run for office. E.g., SX 130; 4 RR 167–73
10
(Appellee’s counsel confirming the projects and work Spencer provided

pursuant to the Stacy Cary-agreement), 5 RR 12–20 (same); 4 RR 173–

74 (Spencer deliberately did not introduce Wooten and the Carys to each

other), 174 (affirming he “ke[pt] the business of one client separate from

the business of another client”—Stacy Cary and Wooten—as was his

usual practice), 174 (Spencer could do “[a]nything [he] chose” with the

Cary payments because he “earned it” for services rendered); 175

(Appellee’s counsel eliciting Spencer’s confirmation that “[t]he topic

never came up,” regarding Wooten or campaign funding)]. This point

bears repeating: Appellee’s position at trial was necessarily that the

payments were not intended as political contributions because Stacy

Cary paid Spencer for unrelated consulting services and had no

knowledge of Spencer’s activities in support of Wooten’s campaign. See,

e.g., id.; 4 RR 172 (Appellee’s counsel asking, “Just to be clear, that was

not $50,000 that you were receiving from Ms. Cary so that you could fund

the Wooten campaign?”), 172 (follow-up question of “No connection – you

hadn’t talked about it. In your mind, there was no connection?”), 173

(Appellee’s counsel confirming Spencer was “sure” when he denied ever

11
“tell[ing] one client that you were working for the other client”), 174–75

(Appellee’s counsel asking Spencer, “Did either Mr. or Mrs. Cary ever

direct you to use the money they were paying you for your services to, in

any way, fund a campaign or have anything to do with Judge Wooten?”—

which Spencer denied); 5 RR 118 (Spencer answering affirmatively in re-

cross-examination by Appellee’s counsel, whether the January payment

of $50,000 from Stacy was for consulting services, and that “[T]here was

no connection between that and a judicial campaign, correct?”).

In other words, Appellee now appears to concede on appeal that the

consulting agreement was a subterfuge, fabricated several years after its

purported effective date to provide a false explanation for the transfers

of money to Spencer. See Appellant’s Br. at 19–23, David Cary v. State,

No. 05-13-01010-CR (Tex. App.—Dallas May 20, 2014) (“Appellant’s

Br.”). But such an approach fundamentally contradicts his theory of the

defense at trial, and may well have been disastrous if proffered to the

jury. See, e.g., 4 RR 172–75, 153–54 (Spencer admitting erroneous

reference within consulting agreement meant for Appellee’s wife, to

Appellee’s company), 148–49 (Appellee’s counsel introducing two

12
versions of Appellee’s business card, supporting “typographical” error in

the Stacy Cary-agreement was due to Spencer having glanced at

Appellee’s card), 155–56 (Appellee’s counsel asking, “Now, this is an

engagement letter, but is this a requirement that she had to pay you

$250,000?”), 167–73 (Appellee’s counsel confirming the projects and work

Spencer provided pursuant to the Stacy Cary-agreement), 186–87 (“Of

the money that Stacy Cary paid you, this $150,000, at any time did you

ever write a check or advance any of that money to Judge Wooten?”, to

which Spencer replied, “No, sir.”); see also 9 RR 39–41 (in closing

argument, attempting to discredit the State’s evidence that Appellee, his

wife, and Spencer “are making [the engagement letter] up”), 49–54

(same, and reviewing the work Spencer provided to Stacy), 66–67

(arguing Wooten’s campaign finance reports correctly reported all

sources and expenditures).

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

Spencer were compensation for unrelated consulting services)

necessarily required the State to prove that those payments were

actually made for the benefit of Wooten, pursuant to Appellee’s corrupt

13
intentions under the bribery statute. Thus, in reliance on the defense

theory, the prosecutor attempted to disprove it by tracing those payments

through Spencer to Wooten, including Appellee’s corrupt purposes

thereto. Now on appeal, Appellee essentially advances a new jury-

argument in the court of appeals, one that he affirmatively declined to

pursue at trial. Specifically, Appellee contended in the court below that a

hypothetical, reasonable juror would be required to conclude that the

payments were political contributions, see Appellant’s Br. at 19–23,

despite the fact that he told the actual jury they were not. E.g., 4 RR 172–

75 (cross-examination of Spencer), 5 RR 110 (closing argument).

Remarkably, the lower court then “acquitted” Appellee on this basis.

Appellee should not be permitted to have it both ways. Appellee

should be estopped from re-trying his case in the appellate courts, in the

guise of Jackson review. C.f. Prystash v. State, 3 S.W.3d 522, 531 (Tex.

Crim. App. 1999) (“[T]he law of invited error estops a party from making

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

14
 B. As charged here, bribery is an inchoate offense.

The relevant provisions here define bribery as occurring when a

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

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

recommendation, or other exercise of official discretion in a judicial

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

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

36.02(a)(2), (1) (West 2008)15 (respectively); see 2 CR 634. Also, as

previously established, it is an exception to the application of either of

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

by the Election Code. Tex. Penal Code § 36.02(d).

When it is alleged under the bribery statute that an individual

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

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

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

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

15 Given that the law in effect at the time an offense is committed is
controlling, the State cites the relevant criminal statutes from 2008.

15
McCallum v. State, 686 S.W.2d 132 (Tex. Crim. App. 1985)).16 Taking a

position contrary to the Third Court of Appeals’ holding, Appellee argued

in the court below that McCallum stood for the proposition that the “as

consideration” language in the bribery statute means the State must

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

exchange a benefit as consideration for the performance of an official

function.” See Appellant’s Br. at 17. The lower court’s focus on the

consideration provided to Wooten, and its ultimate use in her campaign,

suggests that the court agreed with Appellee. E.g., David Cary, 460

S.W.3d at 736, 738 (no mention of evidence supporting the jury’s

inference that Appellee had no specific intent for campaign use).

After careful consideration, we find that McCallum is factually
16

and legally distinguishable from the instant cause. In McCallum,
the indictment alleged only that the defendant conferred the
benefit on the recipient. Under that indictment, proof that the
defendant offered the alleged benefit was not sufficient to convict.
The instant indictment, on the other hand, alleges that appellant
solicited, agreed to accept, and accepted the benefit from Zepeda,
and the jury was properly instructed that proof of any one of the
three alleged acts would warrant conviction. Thus, it was not
necessary for the State to prove that appellant agreed to accept or
accepted the alleged benefit, and evidence that appellant merely
solicited the benefit will support the conviction.
Martinez, 696 S.W.2d at 932.
16
 A careful analysis of the Court’s McCallum opinion, however,

establishes that Appellee is incorrect. See supra, note 16. And given the

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

the Court to clarify the distinctions recognized by the lower courts of

appeals in Martinez and Stacy Cary—namely:

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

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

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

17
Martinez, 696 S.W.2d at 932–33 (emphasis added) (quoting Model Penal

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

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

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

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

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

granted)).

This approach makes particular sense given the manner in which

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

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

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

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

utilizes intermediaries, who are actually undercover police officers.

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

even aware of the undercover sting operation conducted by police to

document the crime. 17 Because bribery is an inchoate offense—at least as

17 Indeed,this hypothetical is premised on an actual bribery prosecution
that occurred in Austin, Texas, which was heavily reported in the media.

18
charged here—it matters not whether there was a “meeting-of-the-

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

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

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

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

Appellee took an affirmative act in furtherance of his corrupt-intent-

scheme, he is guilty of bribery. 18 See id.

C. The lower court misconstrues the bribery statute as it relates
to proof concerning a “political contribution.”

With the preceding as background, the State turns to the first

question: Whether a reasonable juror could conclude, beyond a

reasonable doubt, that the payments made by Appellee were not “political

contributions.” Here, the jury in Appellee’s trial was given the following

Members of the Los Zetas crime syndicate attempted to bribe the Honorable
Judge Sam Sparks, a federal district judge in the Western District of Texas,
Austin Division. See e.g., Criminal Compl., United States. v. Francisco Agustin
Colorado Cebado, also known as Francisco Colorado, Jr., No. 1:13-cr-00458-
DEW-2 (formerly No. 1:13-mj-00471-AWA) (W.D. Tex. Sep. 5, 2013), ECF No.
1; see also Colorado-Cebado (2), No. A–13–CR–458 DEW, 2013 WL 5852621 at
*1 (considering United States’ Motion for Detention).
18This also assumes that the State has proven that the relevant
payments were not political contributions, beyond a reasonable doubt. The
State will analyze this issue below.
19
definitions related to “political contributions,” which track the relevant

statutes (and of which Appellee has not complained on appeal):

“Contribution” means a direct or indirect transfer of
money, goods, services, or any other thing of value and
includes an agreement made or other obligation incurred,
whether legally enforceable or not, to make a transfer. The
term includes a loan or extension of credit, other than those
expressly excluded by law, and a guarantee of a loan or
extension of credit, including a loan described by law. The
term does not include a loan made in the due course of
business by a corporation that is legally engaged in the
business of lending money and that has conducted the
business continuously for more than one year before the loan
is made or an expenditure required by law to be reported.

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

“Campaign contribution” means a contribution to a
candidate or political committee that is offered or given with
the intent that it be used in connection with a campaign for
elective office or on a measure. Whether a contribution is
made before, during, or after an election does not affect its
status as a campaign contribution.

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

2 CR 647 (emphasis added); see Tex. Election Code § 251.001(2), (3), (5),

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

20
a “campaign contribution.” Tex. Election Code § 251.001(2), (3), (5), (6).

And, as relevant here, a campaign contribution is the direct or indirect

transfer of something of value to a candidate (i.e., Wooten), “with the

intent that it be used in connection with a campaign for elective office[.]”

Id. (emphasis added).

The question under the plain language of the statute defining

bribery is not whether—or how—a given payment is actually used in a

campaign; rather, the question is whether the person who made, offered,

or arranged the payment—and who otherwise acted with corrupt intent

under the bribery statute—subjectively intended that the payment be

used. In other words, the target-recipient’s ultimate disposition of the

money is not outcome determinative to the question of the briber’s intent

and purpose for making the payment. Id.

Here, each sum that Appellee either transferred or arranged to

transfer constituted an independent, completed crime of bribery,

dependent upon Appellee’s subjective intent at the moment each

payment was offered or conferred. See Mustard v. State, 711 S.W.2d 71,

75 (Tex. App.—Dallas 1986, pet. ref’d) (“The offense of bribery focuses on

21
the mental state of the actor, and is complete if a private citizen, by

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

other words, the question of intent here focusses on the instant Appellee

took the volitional act of transferring or arranging the transfer of each

sum of money—and whether that intent encompassed the payment be

used in connection with Wooten’s campaign. Accordingly, the issue at

hand is whether the State proved beyond a reasonable doubt that it was

not Appellee’s subjective intent to make a political contribution at the

instant each payment was made.

Hence, if the jury concluded that Appellee possessed a corrupt

intent when causing the transfer of money to Spencer—and also found

that Appellee had a no specific expectation or purpose regarding Spencer

or Wooten’s use of the money, other than for Wooten to enter favorable

decisions in Appellee and Stacy Cary’s pending cases—Appellee’s

conviction must be affirmed. Although the undersigned has been unable

22
to locate precedent on this point, with all respect to the Court, no other

interpretation makes sense. 19

Indeed, the lower court arguably recognized this as the correct legal

standard. See David Cary, 460 S.W.3d at 737–38 (“[I]f Stacy Cary

transferred money to Spencer with the intent that it be used in

connection with Wooten’s campaign, then, by definition, the money is a

political contribution”). Unfortunately, the lower court then insulated

itself from the force and effect of its properly-stated rule of law, with the

following recursive observation:

The State argues on appeal that the payments to
Spencer for Wooten’s benefit should not be considered political
contributions because the evidence demonstrates that
appellant “deliberately engaged in several deceptive practices

19 Take, for instance, the following hypothetical. A defendant decides to
bribe a judge to influence the outcome in defendant’s pending criminal case. To
this end, the defendant purchases a penthouse condominium in downtown
Austin, and transfers title to the judge as part of his scheme to influence the
outcome of his criminal trial. Two days after obtaining title to the
condominium, the judge sells it, and uses every dollar of the proceeds to fund
her re-election campaign. Assume that the prosecutor proved corrupt intent.
Under the lower court’s view, a rational juror would be required to conclude
the payment was a political contribution because the prosecutor would
necessarily have proven that it was ultimately used, dollar-for-dollar, to fund
a campaign. The better view is that the target’s ultimate use may be relevant
to determine a defendant’s subjective intent—or not—depending on the facts
of the case. However, the target’s ultimate use is not determinative under the
text of the statute.
23
 to prevent the funds from being traced to him.” We must
confine our analysis, however, to the definitions found in the
election code. And under the definition of “political
contribution” in the election code, no exception is made for
covert indirect transfers of money.

David Cary, 460 S.W.3d at 737 (emphasis added). While the lower court

correctly noted that the nature of a “political contribution” is not

contingent upon the visibility of its source, the lower court essentially

based its rejection of the State’s argument on a restatement of its minor

premise: that the relevant payments were actually political

contributions, irrespective of Appellee’s intentions thereto. See id. This

point bears repeating: the court’s analysis ultimately dispenses with the

intent listed within the statutory definition of “campaign contribution”—

and thus “political contribution”—as expressed in the Election Code, to

which the lower court cites. Simply stated: according to the lower court,

if a defendant bribes a public official (e.g., offers or transfers money with

the specific intent of improperly influencing the public official), that

payment is always a “political contribution” if ultimately used to fund

that public official’s campaign for office, regardless of the defendant’s

intent.

24
 But that is not what the relevant statutes say. Under the

controlling statutes in both the Election Code and Penal Code, an

appellate court’s post-hoc determination regarding the objective legal

status of some payment to a public official is irrelevant. Rather, the

subjective intent for the purpose of that payment, possessed by the

transferor/arranger, is the foremost concern: in the Election Code, that

the transfer is intended for use in connection with a campaign for elective

office, in contrast with the Penal Code, that the transfer is either (a)

intended to obtain a favorable decision or other exercise of official

discretion from the candidate/elected official20 or (b) both that the

payment is intended for use in connection with a campaign AND that

both the transferor and the recipient knew and agreed that the transfer

was for a favorable decision or other exercise of official discretion from

the candidate/elected official.21

Since the eventual disposition of Appellee’s plainly surreptitious

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

20 Tex. Pen. Code § 36.02(a)(1)–(3).
21 Tex. Pen. Code § 36.02(a)(4).
25
regarding the purpose of those payments to Wooten, it matters not how

an appellate court might later re-characterize those payments. This

makes sense because the bribery statute attempts to criminalize a

defendant’s inchoate effort to exert corrupt influence over a public

official—and if the defendant does not subjectively believe a payment to

constitute a “political contribution”—or care for how that payment will

be spent—then a crime has been committed, whether or not that payment

was used in a campaign.

This is the fundamental misconception upon which the lower court

foundered. Indeed, this key statutory interpretation is also the reason the

majority in the Stacy Cary appeal affirmed Stacy Cary’s conviction, and

is the reason this Court should reverse the court below.

D. The proper standard of review for legal sufficiency challenges

1. Jackson v. Virginia

This Court has mandated that the sufficiency of evidence standard

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

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

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

26
App. 2011). On review, all evidence, and any reasonable inferences from

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

determine whether any rational trier of fact could have found the

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

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

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

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

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

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

appellate court determines whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the

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

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

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

appellate court must view both direct and circumstantial evidence

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

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

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

27
of fact, reweigh the evidence, or evaluate the credibility of the witnesses.

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

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

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

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

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

2. The law of parties

The jury charge instructed that Appellee may be found criminally

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

parties. 2 CR 649–51. A party may be criminally responsible under the

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

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

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

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

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

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

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

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

28
commit the offense.” Id. at § 7.02(a)(2). And as established below, a

reasonable jury could have concluded as much here.

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

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

parties acted together and contributed to a common purpose. Patterson

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

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

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

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

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

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

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

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

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

3. The lower court misapplies Jackson.

Here, the court of appeals cited the Jackson standard obliquely,

with reference to Delay v. State. 22 David Cary, 460 S.W.3d at 733–34. The

22 443 S.W.3d 909, 912 (Tex. Crim. App. 2014).
29
lower court correctly noted, “[S]ometimes appellate review of legal

sufficiency involves simply construing the reach of the applicable penal

provision in order to decide whether the evidence, even when viewed in

the light most favorable to conviction, actually establishes a violation of

the law.” Id. at 733–39. But when it “simply constru[ed]” that reach, the

court failed to acknowledge that the relevant fact issue concerned

subjective intent, and also failed to properly frame the evidence at trial

in favor of the verdict. Instead, the appellate court focused on only

evidence tending to negate the jury’s historic determination that the

payments were not intended to be a “political contribution,” both ignoring

and discarding the jury’s actual decision. E.g., David Cary, 460 S.W.3d at

738 (the jury could not have relied on Appellee’s deceptive conduct in

preventing the payments from being traced back to him because “the

State’s theory [behind charging Appellee with bribing Wooten] was that

the Carys funded Wooten’s campaign, and the jury was asked whether

the payments were made to Wooten as consideration for various actions

on her part, including issuing rulings favorable to the Carys”). Second,

the lower court gave too much weight to the consideration provided

30
Wooten, and how those payments were ultimately used in her campaign.

E.g., id. at 736, 738 (showing that the lower court focused almost

exclusively on the manner in which the “benefit” to Wooten was

eventually used, and not on the evidence supporting the jury’s inference

that Appellee did not intend specific use of that benefit).

In essence, the lower court appears to have used the standard for

factual sufficiency rejected by this Court in Brooks. Under that now-

discarded standard, the reviewing court was not required to defer to

either the jury’s credibility or weight determinations, and the reviewing

court could sit as a thirteenth juror and “disagree with a jury’s resolution

of conflicting evidence and with a jury’s weighing of the evidence.”

Brooks, 323 S.W.3d at 899 (internal quotations omitted). Alternatively,

the lower court’s approach bears similarities to the factual sufficiency

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

Inc., 448 S.W.3d 637, 653 (Tex. App.—Houston [1st Dist.] 2014, pet.

denied) (“When the appellants attack the factual sufficiency of an adverse

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

appellants must demonstrate the finding is so contrary to the

31
overwhelming weight of the evidence as to be clearly wrong and

manifestly unjust.”).23 Neither of these approaches is available here.

To the extent that the lower court opines that Appellee’s payments

were political contributions as a matter of law, the court cites no

authority for this proposition. Moreover, such a conclusions ignores the

literal text of the relevant statute, which requires a factual inquiry

limited to the jury’s determination regarding Appellee’s subjective intent.

See Tex. Election Code § 251.001(2), (3), (5), (6). In other words, the lower

court provides no support for the proposition that an appellate court can

supplant a jury’s historic factual determination regarding subjective

intent with its own contrary view of the evidence, as a “matter of law.”

Furthermore, the lower court’s repeated reliance on the State’s

“theory” at trial when performing its Jackson review is flawed, too. While

consideration of a prosecutor’s arguments and theories may be relevant

to certain appellate claims, it is not outcome determinative to the

23 The lower court decision also evokes comparison to the long discarded
Geesa standard. See Geesa v. State, 820 S.W.2d 154, 161–62 (Tex. Crim. App.
1991), overruled by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000)
(rejecting the “any reasonable hypothesis” analytical construct in
circumstantial evidence cases to review evidentiary sufficiency).
32
question of legal sufficiency. Rather, review of legal sufficiency considers

evidence and valid inferences in relation to a jury charge and the outcome

the jury actually achieved. Isassi, 330 S.W.3d at 638; Jackson, 443 U.S.

at 326. Indeed, a jury is not even permitted to utilize the arguments of

counsel as an evidentiary foothold to then render reasonable deductions

from the 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). Arguments and theories are not evidence.

See id.

Perhaps more troubling, if the lower court is correct, and if the

arguments of counsel may be considered for purposes of Jackson-

sufficiency review, then the court necessarily erred by ignoring the

theories and arguments of the defense, which affirmatively contradict the

lower court’s acquittal. E.g., 9 RR 39–41, 49– 54, 66–67 (in arguing

33
Wooten’s campaign finance reports were correct, implied all donors and

funding sources were correctly identified). Indeed, if the argument of

counsel was relevant to the question of legal sufficiency, such an

approach would undoubtedly redound to the great benefit of the State in

many appeals.

As the State will demonstrate in the next section, when the

evidence is properly framed, Appellee’s convictions meet the Jackson

standard.

II. ISSUE TWO: The Evidence at Trial Was Legally Sufficient For a
Rational Juror to Find, Beyond a Reasonable Doubt, All of the
Elements of Bribery.

When the evidence is properly analyzed under the Jackson

standard, and when direct and inferential evidence against the jury’s

verdict is ignored, a rational juror could have found, beyond a reasonable

doubt, all of the elements of the charged offenses. Specifically, that (1)

Appellee knowingly offered money to Wooten with the specific intent of

exerting improper and corrupt influence over her in preexisting judicial

proceedings, and (2) that the payments were not political contributions.

See Tex. Penal Code § 36.02(a), (d).

34
 Indeed, this is what the Stacy Cary panel held on a substantially

identical record:

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

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

Stacy Cary, 2014 WL 4261233, at *34 (emphasis added). If the Justices

in the Stacy Cary majority are rational, then so too was the jury.

35
 In sum, a rational jury could have found that Appellee did not

intend for the predicate transfers to Spencer to be used in connection with

Wooten’s campaign, and instead intended that the payments to Spencer

be used to obtain, by any means necessary, (1) a person who would

challenge the incumbent judge of the 380th Judicial District Court,

despite the odds stacked against succeeding in such a challenge, and/or

(2) a judge who would rule favorably in Appellee’s custody and visitation

proceedings, and/or rule in favor of his spouse Stacy. In other words,

when the evidence supporting the jury verdict is properly framed, a

rational juror could have determined that Appellee had no specific intent

that the payments made by his spouse be used specifically in connection

with the campaign. Such a juror finding constitutes legally sufficient

evidence of bribery.

Finally, to the extent that Appellee might contend that his

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

as an effort to avoid the contribution limits under the Election Code, this

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

concede his own subterfuge before urging this Court to impute its

36
inference to the jury. Second, this contention again smacks of Geesa—

ultimately, that the State be required to disprove a competing rational

inference. To be clear, the State is not arguing against its duty to disprove

the exception outlined in Section 36.02(d) of the Penal Code—that the

payments were political contributions. Rather, the “competing rational

inference” which Appellee (and the lower court) proposes that the State

must disprove, is that the “contract” between Spencer and Appellee’s wife

was created to cover up Appellee’s actual misdemeanor criminal offense

of exceeding the statutory limitations for campaign contributions—even

where Appellee made no such argument at trial. But lastly, such an

argument goes too far: if the jury could infer from Appellee’s deception

that he was attempting to avoid the minor criminal sanction associated

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

infer that Appellee used subterfuge to avoid public exposure of his

corrupt intentions under the bribery statute.

37
III. ISSUE THREE: The Evidence at Trial Was Legally Sufficient to
Affirm Appellee’s Convictions for Engaging in Organized Criminal
Activity and Money Laundering.

The lower court’s resolution of the EOCA and money laundering

counts was necessarily premised on its erroneous determination that

there was legally insufficient evidence to convict Appellee of bribery—a

predicate offense for both EOCA and money laundering. David Cary, 460

S.W.3d at 738-41. Hence, if this Court reverses the lower court’s

determination that the evidence was legally sufficient to support

Appellee’s bribery conviction, then the Court should necessarily reverse

the lower court on this basis, too.

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

38
 ADRIENNE McFARLAND
Deputy Attorney General
for Criminal Justice

EDWARD L. MARSHALL
Chief, Criminal Appeals Division

/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

39
 CERTIFICATE OF SERVICE

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

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

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

correct copy of the foregoing notice was served electronically by that

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

John Michael Helms Jr.
Attorney for Appellee

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

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

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

addressed to:

John Michael Helms Jr.
john@johnhelmslaw.com

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

40
 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 8,824 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

41