Ramirez v. State

OPINION

PEEPLES, Justice.

Appellants were tried jointly before a jury and each was convicted of conspiracy to commit bribery. The court assessed punishment for each at eight years’ confinement, which was probated, and a $5,000 fine. In addition, appellant Carr was ordered to pay $18,000 restitution and appellant Minton was removed from his elected office. While the appellants raise various points of error in their separate briefs, each appellant challenges the sufficiency of the evidence and raises other issues. Because we hold that the evidence was insufficient to support the conviction in each case, we need not address appellants’ other contentions.

In order to review the sufficiency of the evidence, a rather extensive discussion of the evidence adduced at trial is necessary. While we must review the sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979), we believe that because of the complex facts involved, it would be helpful at this point to summarize all of the relevant evidence. In 1985, Nick Carr owned a building in Eagle Pass that was commonly referred to as the CEP building. At that time, Inez Ramirez was president of the Board of Trustees of the Eagle Pass Independent School District and Luis Minton was a county commissioner in Maverick County. Early in 1985, Carr made a proposal to sell the CEP building to the school district. On July 8, 1985, the school board met to discuss the possibility of buying this building for the purpose of consolidating the school district’s offices. At that time, the district’s offices were scattered around the city of Eagle Pass and there was a general consensus on the board that consolidation would be more efficient. Board members also expressed concerns that the district was wasting money on upkeep of properties it was renting and that the leases on those properties were about to expire. The board voted five to two to have a feasibility study conducted to determine if the CEP building was a suitable choice for consolidation. On July 10, 1985, Carr and Minton approached Dan Bustamonte, the superintendent of the school district. Carr asked Bustamonte if he was going to oppose the purchase, and informed him that one of the members who was opposed to the purchase would not be present for the vote. Minton relayed a message from Ramirez and another board member that they had the votes and were going to purchase the building, and that Bustamonte should not oppose the purchase. Bustamonte testified that there was nothing unusual about this meeting *112and that he was not pressured or coerced. A special meeting of the board was held on July 30, 1985. Three members, including Ramirez, voted for the purchase of the CEP building, and two members voted against it. Bustamonte, as superintendent, had no vote. Two board members were not present for the vote, but later testified that they would have voted against it. These members had notice of the meeting, though, and were not tricked, coerced, or bribed into not participating.

The board paid Carr $425,000 in two installments. The first payment of approximately $210,000 was made in September 1985. Most of that payment went directly to pay outstanding loans on the building, and Carr actually received approximately $36,000. The second payment of $212,500 was made in January 1986.

Between the first and second payments, Minton filed for reelection to his position as county commissioner. Approximately two weeks after the second installment was paid, and a month after Minton filed for reelection, Carr wrote a check to Ramirez (the school board member) for $1500. Several more checks were paid to Ramirez at approximately two-week intervals until a total of $11,500 had been paid. Minton was reelected in a run-off election on June 7, 1986. The last check written by Carr to Ramirez was dated June 13, 1986.

Soon thereafter, a grand jury began to investigate the purchase of the CEP building and the checks written to Ramirez by Carr. Carr, Ramirez and Minton all testified before the grand jury that the checks were contributions to Minton’s reelection campaign. Minton did not report this money, however, and he never filed a final campaign report as required by law. Min-ton testified before the grand jury that his campaign received $11,200 from Carr, but that that figure was supplied to him by Ramirez. He testified that he, personally, received only $600 from Carr through Ramirez, all of which was spent on the campaign. He later wrote a letter to the grand jury attempting to clarify this.

On January 15, 1988, the grand jury indicted Carr, Ramirez, and Minton for conspiracy to commit bribery. The indictment alleged that appellants agreed among themselves, with the intent that bribery be committed, that Carr would confer a pecuniary benefit upon Ramirez as consideration for his vote to purchase the CEP building. Minton’s apparent alleged role was to provide a cover-up for this payment by declaring that the checks given to Ramirez by Carr were actually contributions to Min-ton’s reelection campaign.

All of the appellants challenge the sufficiency of the evidence to support their convictions. In reviewing the sufficiency of the evidence, this court must determine whether, considering the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Little v. State, 758 S.W.2d 551, 562 (Tex.Crim.App.), cert. denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988). This is the standard of review in both direct and circumstantial evidence cases. Butler v. State, 769 S.W.2d 234, 238 (Tex.Crim.App.1989); Dickey v. State, 693 S.W.2d 386, 387 (Tex.Crim.App.1984).

In applying this standard to circumstantial evidence cases, however, we must consider whether the circumstances exclude every other reasonable hypothesis except that of the guilt of the accused. Butler v. State, 769 S.W.2d at 238 n. 1; Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App.1987); Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983) (opinion on rehearing). If the evidence supports a reasonable inference other than finding the essential elements of the crime, then no trier of fact could rationally find the accused guilty beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d at 449-50; Freeman v. State, 654 S.W.2d 450, 456-57 (Tex.Crim.App.1983) (opinion on rehearing); Denby v. State, 654 S.W.2d 457, 464 (Tex.Crim.App.1983) (opinion on rehearing). Proof that amounts to only a strong suspicion or mere probability of guilt is insufficient to support a conviction. Humason v. *113State, 728 S.W.2d at 366; Moore v. State, 640 S.W.2d 300, 302 (Tex.Crim.App.1982).

Appellants were convicted solely on circumstantial evidence. They assert that this evidence was insufficient because it failed to negate a reasonable hypothesis of innocence — that Ramirez voted for the purchase of the CEP building because he believed it was an appropriate site to consolidate the school district’s offices; the series of checks written by Carr to Ramirez were contributions to Minton’s campaign, for which Ramirez was an unofficial treasurer; and Minton failed to report Carr’s contributions due to negligence or intimidation by the grand jury. We agree.

It is not necessary to prove all of the elements of the underlying offense in a conspiracy case. Brown v. State, 576 S.W.2d 36, 41 (Tex.Crim.App.1978); Skidmore v. State, 530 S.W.2d 316, 320 (Tex.Crim.App.1975); see also McCann v. State, 606 S.W.2d 897, 898 (Tex.Crim.App.1980) (commission of substantive offense is not essential element of conspiracy). This is because conspiracy to commit a crime and commission of the substantive offense which is the object of the conspiracy are separate and distinct offenses. McCann v. State, 606 S.W.2d at 898; Farrington v. State, 489 S.W.2d 607, 609 (Tex.Crim.App.1972); Turner v. State, 720 S.W.2d 161, 162 (Tex.App.—San Antonio 1986, pet. ref’d). Thus, in order to support a conviction for conspiracy to commit bribery, it was not necessary for the State to prove that the completed offense of bribery was committed. It was, however, necessary to prove that each appellant agreed, with the intent that a felony be committed, “that they or one or more of them engage in conduct that would constitute the offense” of bribery. TEX.PENAL CODE ANN. § 15.02(a)(1) (Vernon 1974). This agreement may be shown by circumstantial evidence. Farrington v. State, 489 S.W.2d at 609; Price v. State, 410 S.W.2d 778, 780 (Tex.Crim.App.1967); Turner v. State, 720 S.W.2d at 164; see also TEX.PENAL CODE ANN. § 15.02(b) (Vernon 1974). In addition to the necessary agreement, the State must also prove that one of the members of the conspiracy performed an overt act in pursuance of the agreement. TEX. PENAL CODE ANN. § 15.02(a)(2) (Vernon 1974). The required overt act need not, in itself, be a criminal act. McCann v. State, 606 S.W.2d at 898 n. 1.

The evidence in the present case, viewed in the light most favorable to the conspiracy verdict, shows that Carr had made various offers to sell the CEP building to the school district since 1982. After the board agreed to consider Carr’s offer in 1985, Carr and Minton met with superintendent Bustamonte. Carr asked whether Bustamonte was going to oppose the purchase, and stated that one of the members opposed to it was not going to be present for the vote. Minton relayed a message from Ramirez and another board member that they had the votes to make the purchase and Bustamonte should not oppose it. At the time of the vote, four members of the seven member board were opposed to the purchase, the superintendent of the school district was opposed to the purchase, and an architect hired by the district to conduct a feasibility study had concluded that the building was not suitable for the proposed use. The motion to purchase the building was passed by a vote of three to two because two of the members who opposed it were not present at the meeting. Ramirez was one of the members who voted in favor of the purchase.

Approximately two weeks after Carr received the second check in payment for the CEP building, he began to write a series of checks to Ramirez. The total of these checks exceeded $11,000. Ramirez, Carr, and Minton all claimed that these checks were contributions to Minton’s campaign, but the reports filed by Minton do not reflect any such contributions from Carr, and Minton’s final campaign report was never filed. Minton told the grand jury that his campaign received $11,200 from Carr. He later wrote a letter to the grand jury stating that this figure was supplied by Ramirez, and that he only had personal knowledge of directly and physically receiving $600. The State construes this letter as recanting his prior testimony and calling *114into question his veracity concerning this transaction. The State contends that the evidence, as recited above, is sufficient to show that appellants had agreed among themselves to commit bribery and that they performed a number of overt acts in pursuance of that conspiracy.

While this evidence may establish a strong suspicion or probability that appellants conspired to commit bribery, it is not sufficient to support the convictions because it does not negate the reasonable hypothesis of innocence raised by appellants. See Carlsen v. State, 654 S.W.2d at 449-50; Freeman v. State, 654 S.W.2d at 456-57; Denby v. State, 654 S.W.2d at 464. This hypothesis is supported by the following evidence:

A. The vote. Bustamonte testified that there was nothing unusual about the meeting with Carr and Minton, and that they did not try to bribe or pressure him to support the purchase. While two members who were opposed to the purchase of the CEP building were not present for the vote, they were properly notified of the meeting and were not tricked or coerced into failing to attend. No one protested the setting of the meeting and no one sought to set the matter for reconsideration after the vote was taken. There was conflicting testimony regarding whether the decision to purchase the building was a good or bad one, but there was ample evidence to support the hypothesis that Ramirez voted in favor of it because he believed it to be good for the school district.

B. The timing of Carr’s checks to Ramirez. There is evidence that the first of these checks was written two weeks after Carr received the final proceeds from the sale. This date was over six months after the school board vote, and five months after the first payment from the school district, from which Carr received approximately $36,000. The date of this first check to Ramirez was also one month after Minton filed for reelection. The State points out that no more checks were written after the grand jury began its investigation, but the evidence also shows that the last check was written one week after the run-off election and that it was not unusual to receive campaign contributions after the election to pay any debts left over from the campaign.

C.Disposition of the funds. Appellants produced a number of witnesses who testified that, although Ramirez was not named as Minton’s campaign treasurer,1 it was common knowledge in the community that Ramirez was in charge of receiving campaign contributions from Carr for Min-ton’s campaign. One member of the board who had voted against the purchase testified that he, at one time, suggested that Ramirez receive these funds. Another board member testified that she saw Ramirez bring a check from Carr to Minton’s workers, and that Ramirez cashed that check to pay the workers. A variety of witnesses testified that Minton’s campaign workers were paid every Friday in cash, and that they received this cash from Ramirez. The owner of a print shop testified that he did all of the printing for Minton’s campaign and that he was paid in cash by Ramirez. A restaurant owner testified that Minton frequently came to his restaurant with groups of people during the campaign, and that the restaurant was paid in cash by Ramirez. None of these witnesses could produce complete records or receipts, but they stated that it was not unusual in the area to be paid in cash for campaign services.

Of the series of checks written to Ramirez by Carr, the State conceded that one actually did go to pay Minton’s campaign expenses. There was evidence that Ramirez was out of town one week and that he asked his wife to pick up a check at Carr’s office. She received the check and contacted a sheriff’s deputy to pick it up from her. After picking up the check, this deputy called Minton, who instructed his wife to go get the check. The check was then endorsed and cashed by Minton’s son, who gave the proceeds to Minton, who paid his campaign workers. At least two campaign workers testified that, while they were usually paid by Ramirez on Friday, *115one week they were paid by Minton on a Saturday because Ramirez was out of town.

D. Failure to report Carr’s contributions. There is evidence that the reporting of political contributions was very lax in Maverick County during this period of time. While we do not condone any failure to abide by the election laws, this evidence still supports the hypothesis that Minton failed to report Carr’s contributions out of negligence. The hypothesis that receives even stronger support in the record, though, is that Minton failed to file his final campaign report because he was intimidated by the grand jury. There is evidence that, at the time he testified before the grand jury, the grand jury informed him that they were waiting for his report to “tie the deal up” and that he was not involved but that he could “deal himself in” to a coverup. He was asked whether he was going to provide an alibi for Carr and Ramirez by declaring the money as contributions, and whether he was going to “take the fall” for them.

The clear implication of these statements was that if Minton filed his final report and listed campaign contributions from Carr, the grand jury intended to indict him for conspiracy. That Minton failed to file this report because he was intimidated by these threats is as reasonable a hypothesis as that presented by the State — that he was covering up a bribe. Regarding Minton’s alleged recanting of his grand jury testimony, it is apparent from a reading of that testimony and his subsequent letter to the grand jury that Minton was trying to distinguish between money received by his campaign and money he personally, physically received. He stated that the former was $11,200, and that that figure was given to him by Ramirez, and that the latter was $600. His oral testimony and the letter are not necessarily at odds with one another, as one simply attempts to clarify the other.

As noted above, while the evidence may support a strong suspicion that appellants conspired to commit bribery, it does not negate the reasonable hypothesis that Carr was simply contributing to Minton’s campaign, that Ramirez was merely a conduit for this purpose, and that the money had no connection to Ramirez’ vote for the purchase of the CEP building.

We feel constrained to add that we are uncomfortable with the reasonable hypothesis test, which is the sole basis for this reversal of the jury’s guilty verdict. That test requires the appellate court to reverse if the evidence supports a reasonable hypothesis inconsistent with guilt, even though the jury impliedly found that the hypothesis was unreasonable. In effect the test requires us to substitute our judgment for that of the jury. It requires us to credit — for reasonable doubt purposes— testimony that the jury may well have thought was nonsense.

That is exactly what has happened in this case because the jury was expressly instructed to acquit each defendant unless it found beyond a reasonable doubt that the payments were intended as bribes and were not intended to be campaign contributions to Minton.

Perhaps the most common application of the test occurs when the issue is whether the evidence is sufficient to connect the defendant to a crime. See, e.g., Skelton v. State, 795 S.W.2d 162 (Tex.Crim.App.1989), cert. denied, — U.S. -, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990); Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983); Freeman v. State, 654 S.W.2d 450 (Tex.Crim.App.1983); Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983); Moore v. State, 640 S.W.2d 300 (Tex.Crim.App.1982). Other cases have involved defendants who were caught with drugs in their presence, and the issue was whether the evidence proved knowing possession. See, e.g., Humason v. State, 728 S.W.2d 363 (Tex.Crim.App.1987); Dickey v. State, 693 S.W.2d 386 (Tex.Crim.App.1984). Perhaps the test should be limited to these two categories.

We seriously question whether the test should apply on the issue of the defendant’s state of mind in a case like this one. But there are indications that the test is also appropriate in conspiracy cases, see, e.g., Roberts v. State, 375 S.W.2d 303, 304 *116(Tex.Crim.App.1964); Feldman v. State, 141 Tex.Crim. 806, 147 S.W.2d 773, 776 (1940), although we have not found any Texas cases reversing conspiracy convictions on this basis.

There is much to be said for Justice Butts’ suggestion that the test does not apply when the jury was expressly instructed about the alternative theory consistent with innocence, but the appellate test has been applied when the jury was expressly instructed about circumstantial evidence, although there is no indication in the opinions that the instruction was as explicit as the instructions given in the present case. See, e.g., Andrews v. State, 744 S.W.2d 40 (Tex.Crim.App.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988); Denby v. State, 654 S.W.2d 457 (Tex.Crim.App.1983).

In this case the campaign contribution hypothesis was the basis for the defendants’ defense in the trial of this case. It is supported by ample evidence; it was not dreamed up by this court. A fair and good-faith application of the reasonable hypothesis test requires a reversal and an entry of an acquittal in this case.

For the reasons stated, the judgments are reversed and an order of acquittal is entered in each case. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

. Minton's campaign reports do not reflect that anyone was named as his official treasurer.