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
Cary, David Frederick
Combined Opinion