                                                                             PD-1341-14
                                                       COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                     Transmitted 8/18/2015 10:18:13 PM
                                                        Accepted 8/19/2015 7:59:20 AM
                                                                        ABEL ACOSTA
         APPELLANT REQUESTS ORAL               ARGUMENT/                        CLERK
              ORAL ARGUMENT GRANTED


         IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                 ______________________________
                            No. PD-1341-14
                   _______________________________
                                                                 August 19, 2015
                    STACY STINE CARY, Appellant

                                   v.

                   THE STATE OF TEXAS, Appellee

   On Appeal from the Court of Appeals, Fifth District of Texas at Dallas
                 Court of Appeals No. 05-12-01421-CR
__________________________________________________________________


                     APPELLANT'S REPLY 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 APPELLANT,
                                 STACY STINE CARY
                                  TABLE OF CONTENTS
TABLE OF CONTENTS…………………………………………...………............i

INDEX OF AUTHORITIES…………………………………………………….....ii

I.     REPLY TO ARGUMENTS REGARDING ISSUES PRESENTED…….....1

       A.     ISSUE 1: THE COURT SHOULD REVERSE MS. CARY’S
              BRIBERY CONVICTIONS BECAUSE THE STATE
              AFFIRMATIVELY NEGATED THE ELEMENT OF
              BRIBERY BY SOMETHING OTHER THAN “POLITICAL
              CONTRIBUTIONS,” AND THE EVIDENCE WAS
              THEREFORE INSUFFICIENT………………………….…………...2

              1.      THERE WAS NO ESTOPPEL OR INVITED ERROR............2

              2.      THE EVIDENCE WAS INSUFFICIENT TO DISPROVE
                      BENEFIT BY POLITICAL CONTRIBUTION BEYOND
                      A REASONABLE DOUBT…...………………………………8

       B.     ISSUE 2: THE EVIDENCE WAS INSUFFICIENT TO
              PROVE THE REQUISITE OFFICIAL ACTION INTENDED
              TO BE EXCHANGED FOR THE ALLEGED BENEFIT, AS
              REQUIRED BY THE BRIBERY STATUTE………………………14

       C.     ISSUE 3: THE EVIDENCE WAS INSUFFICIENT TO
              PROVE THAT MS. CARY HAD THE REQUISITE INTENT
              TO COMMIT BRIBERY…………………………………...……….19

       D.     ISSUE 4: THE EVIDENCE WAS INSUFFICIENT TO
              SUPPORT MS. CARY’S CONVICTION FOR ENGAGING
              IN ORGANIZED CRIMINAL ACTIVITY AND MONEY
              LAUNDERING…………………………………………….……….20

CONCLUSION………………………………………………………………...…21




Appellant's Reply Brief--Page i
                              INDEX OF AUTHORITIES

Statutes/Rules:

Texas Election Code § 251.001 (2), (3), (5)…………………………………..……5

Texas Penal Code § 2.02(b)…………………………...............................................4
Texas Penal Code § 7.02……………………………………………….................11

Texas Penal Code § 36.02 (a)(1) and (2)……………………………...…4, 8, 10, 14

Texas Penal Code § 36.02(a)(1), (2), (3)………………………………………...…7

Texas Penal Code § 36.02(a)(4)…………………………………………………7, 8
Texas Penal Code § 36.02(d)……………………………………………….2, 4, 7, 8

Texas Penal Code § 36.09…………………………………………………….10, 15



Cases:
Cary v. State, No. 05-13-01010, slip op. at 11 (Tex. App.—Dallas, March 25,
2015)………………………………………………………………………..………6

Ex parte Thompson, 179 S.W. 3d 549 (Tex. Crim. App. 2005)……...………..…11

Hill v. State, 883 S.W.2d 765 (Tex. App.--Amarillo 1994, pet. ref’d)……......11, 12

Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007)……………...............18
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)................................13, 14

M., K., & T. Ry. V. Eyer, 96 Tex. 72, 70 S.W.529 (1902)…………………….…2, 3

Mustard v. State, 711 S.W.2d 71, 75 (Tex. App.—Dallas 1986, no pet.)……...…11

Martinez v. State, 696 S.W.2d 930 (Tex. App.—Austin 1985, pet. ref’d)…….….10

Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999)……………….………2, 3

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


Appellant's Reply Brief--Page ii
Willeford v. State, 72 S.W.3d 820 (Tex. App.—Fort Worth 2002, pet. ref’d)…..…3
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013)……………….…18



Secondary Sources:
George E. Dix and Robert O. Dawson, 43 Texas Practice—
Criminal Practice and Procedure § 42.141 (Supp. 1999)…………………………2

Model Penal Code §240.1………………………………………………………...11




Appellant's Reply Brief--Page iii
                                           I.

       REPLY TO ARGUMENTS REGARDING ISSUES PRESENTED

       In her Appellant’s Brief, Ms. Cary quoted Justice FitzGerald’s dissent in the

Court of Appeals, which described this case as “a completely misdirected and

unsupported prosecution and conviction that are not supported by law.” Dissenting

Opinion at 9. If anything, the State’s Brief confirms exactly what Justice

FitzGerald wrote.

       Remarkably, the State’s Brief tries to blame Ms. Cary for the State’s

decision to charge sections of the bribery statute containing an essential element

that the State not only could not and did not prove, but that the State affirmatively

disproved, and that is fundamentally inconsistent with the State’s theory and

evidence at trial. Even more remarkably, in a desperate attempt to salvage this

prosecution, the State makes the completely nonsensical argument that the bribery

statute does not mean what it says, does not require proof of intentionally offering,

conferring, or agreeing to confer to a public official a benefit as consideration for

specified acts by the public official, and instead only requires proof that the

defendant acted with a general “corrupt intent.”

       For the reasons that follow, the Court should reject this farcical legal

gamesmanship and reverse Ms. Cary’s convictions.




Appellant's Reply Brief--Page 1
A.     Issue 1: The Court Should Reverse Ms. Cary’s Bribery Convictions
       Because The State Affirmatively Negated The Element Of Bribery By
       Something Other Than “Political Contributions,” And The Evidence
       Was Therefore Insufficient.

       Ms. Cary’s Appellant’s Brief established that the State failed to prove

beyond a reasonable doubt, and indeed affirmatively negated, an element of the

crime charged—that the alleged “benefit” offered or conferred to Suzanne Wooten

was not “a political contribution as defined by Title 15, Election Code.” Tex. Pen.

Code § 36.02(d). See Appellant’s Brief at 18-27. Accordingly, the evidence was

insufficient to support the bribery convictions. See id.

       1.     There Was No Estoppel Or Invited Error.

       The State first responds that Ms. Cary should be estopped from making this

argument 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 Ms. Cary.

       According to the cases 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,

Appellant's Reply Brief--Page 2
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 thereafter the defendant

complains of the trial court’s action.” Willeford v. State, 72 S.W.3d 820, 823 (Tex.

App.—Fort Worth 2002, pet. ref’d). 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. Ms. Cary does not

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

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

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

State was required to prove beyond a reasonable doubt. Nor did Ms. 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 Ms. Cary “invited.” Rather, it was because



Appellant's Reply Brief--Page 3
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 political contributions that are not

properly reported or that are otherwise illegal.

       The State chose to charge Ms. 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. See

Clk. Rec. at 1050-51 (definitions); 1055, 1059-64 (instructions on bribery and

EOCA counts).



Appellant's Reply Brief--Page 4
       Thus, the State knew throughout the case that, because of the way it charged

Ms. Cary, it had to negate bribery by “political contribution” beyond a reasonable

doubt. Ms. Cary did not induce this, and nothing she did changed or excused this.

Yet, as demonstrated in Appellant’s Brief at 21-23, literally from opening

statement through closing argument, the State’s entire theory of the case, and the

only evidence it offered, relied on payments originating with Ms. Cary that the

State argued were intended to be, and were, used for Suzanne Wooten’s campaign.

Those were clearly “political contributions” under the statutory definition. See

Tex. Election Code § 251.001(2), (3), (5).

       The State’s problem was that it charged, presented, and argued the case

based on a fundamentally flawed interpretation of the term “political

contributions.” Specifically, the State took the position that what would otherwise

fit the definition of a “political contribution,” is not a “political contribution” if it is

improper or not properly disclosed. This was evident in closing argument when

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.

TR 9 at 12 (emphasis added).



Appellant's Reply Brief--Page 5
       The State’s theory was and is manifestly incorrect. An illegal, unreported,

or improperly reported political contribution is still a political contribution. As

explained on pages 23-25 of Ms. Cary’s Appellant’s Brief, the definition of

“political contribution” in the Texas Election Code does not incorporate

requirements that the contribution must be proper or properly reported. Thus, as

the Dissent in the Court of Appeals in this case, and all three justices in the Court

of Appeals in Ms. Cary’s husband’s case recognized, “In other words, an illegal

political contribution is still a political contribution.” Dissenting Opinion at 12

(emphasis added); see also Appellant’s Brief, App. A (Cary v. State, No. 05-13-

01010, slip op. at 11 (Tex. App.—Dallas, March 25, 2015)) (“Additionally, under

the applicable definitions in the election code, the money did not need to be

transferred directly to Wooten’s campaign account, nor did it need to be properly

reported in Wooten’s campaign filings, in order for it to constitute a political

contribution.”). The Majority Opinion in the Court of Appeals in this case did not

disagree with this analysis, and neither does the State on appeal.

       The State’s contention that Ms. Cary’s “defensive theory…necessarily

required the State to prove that the payments were made for the benefit of

Wooten” is beyond fallacious. See State’s Brief at 18. What required the

State to prove that the payments were made for the benefit of Ms. Wooten

was the State’s decision to charge that the payments constituted bribery of



Appellant's Reply Brief--Page 6
Ms. Wooten. And, as noted above, the State pursued this theory from

opening statement—before any “defensive theory” had been announced—

through closing argument. As the prosecutor told the jury in opening

statement:

       So, what Stacy Cary did was she, with her means, she secretly
       financed a candidate, Suzanne Wooten, to run against the presiding
       judge of the 380th Judicial District Court, Charles Sandoval.

       ****

       But in those instances, what is that money used for? That money is
       used to run Suzanne Wooten's campaign. Without this money,
       Suzanne Wooten can't fund her campaign, and it was a very expensive
       campaign, over a hundred thousand dollars.

TR 3 at 12, 21. The State was not somehow lured into this theory of the case. This

was the State’s theory from indictment through verdict. The State simply charged

a crime that did not fit because it misunderstood the definition of “political

contribution.” Ms. Cary in no way invited that.

       Next, the State argues that Ms. Cary should not be able to complain that the

jury was not instructed on the heightened standard of proof required under section

36.02(a)(4)1 of the bribery statute. See State’s Brief at 17, 19. This argument is

misplaced, however, because Ms. Cary is not complaining that the jury was not so


1
  The State’s Brief refers to the “heightened proof requirements in Penal Code § 36.02(d).”
State’s Brief at 17, 19. This appears to be a reference to the heightened proof requirements in
section 36.02(a)(4), which actually contains heightened proof requirements, whereas section
36.02(d) simply makes a “political contribution” an exception to sections 36.02(a)(1-3).


Appellant's Reply Brief--Page 7
instructed. Nor could she do so, since she was not charged under that section. She

is complaining that the evidence did not sufficiently support a conviction under the

statutory subsections charged—sections 36.02(a)(1) and (2)—which require the

State to negate the political contribution element beyond a reasonable doubt. The

heightened standard of proof under section 36.02(d) does not apply when, as here

the State charged sections 36.02(a)(1) and (2). The heightened standard of proof

would apply if the State had charged section 36.02(a)(4), which it did not.

       Ms. Cary has certainly pointed out that, by charging sections 36.02(a)(1) and

(2), the State avoided the heightened proof requirements that apply when the

alleged bribery is by political contribution. The purpose of this argument,

however, is to show that the State would have had a substantially higher burden,

which the State did not meet and could not have met, if the State had charged the

proper section of the bribery statute. It was not to complain about an instruction

that did not apply to the crime the State charged.

       The Court should reject the State’s attempt to blame Ms. Cary for its own

flawed prosecution. There was no estoppel or invited error.

       2.     The Evidence Was Insufficient To Disprove Benefit By Political
              Contribution Beyond A Reasonable Doubt.

       Next, the State makes a tortured argument that the jury could have found

that Ms. Cary committed bribery through something other than a political

contribution beyond a reasonable doubt. The only proof at trial of anything even

Appellant's Reply Brief--Page 8
remotely resembling a benefit to Ms. Wooten, however, consisted of the transfers

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

Wooten campaign. See, e.g., TR 3 at 12 (“So, what Stacy Cary did was she, with

her means, she secretly financed a candidate, Suzanne Wooten, to run against the

presiding judge of the 380th Judicial District Court, Charles Sandoval.”).

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

Wooten campaign, then she did not have the requisite intent to commit bribery. If

she did intend for the transfers to be used for the Wooten campaign, then the

transfers are political contributions, and the State has failed to negate the political

contribution exception.

       To try to get around this, the State tries to rewrite the bribery statute. The

State argues that the jury could have found Ms. Cary guilty of bribery if she merely

made the transfers to Mr. Spencer with “corrupt intent.” If she 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 to the recipient to be “consideration,” “for the recipient’s



Appellant's Reply Brief--Page 9
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) and (2).2 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) and (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
2
  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).


Appellant's Reply Brief--Page 10
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 “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, 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.

       The law of parties does not change or lower the intent requirement, as the

State suggests. Under the law of parties, 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) [of the Texas Penal Code] is the criminal

mens rea of each accomplice; each may be convicted only of those crimes for

which he had the requisite mental state."); Hill v. State, 883 S.W.2d 765, 771 (Tex.



Appellant's Reply Brief--Page 11
App.--Amarillo 1994, pet. ref'd) ("[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." (emphasis in original)).

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

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

merely had “corrupt intent,” it could not have found her 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.

       But the State’s only evidence to support bribery consisted of money transfers

that were necessarily political contributions under the State’s own theory. Perhaps

not surprisingly, the State’s Brief in this Court goes to great lengths to avoid

describing the evidence of bribery and explaining how it could have satisfied the

elements of the bribery statute. The Court need only review the evidence recited in

the Majority Opinion in the Court of Appeals to see how the State has now

completely abandoned and distorted the evidence at trial.

       At trial, to show motive, the State presented evidence that Ms. Cary’s

husband, David Cary, wanted someone to unseat the judge in his child custody

case, Charles Sandoval, because of a variety of rulings he considered improper and



Appellant's Reply Brief--Page 12
unfair. The State presented further evidence of the relationship between the Carys

and Stephen Spencer and the fact that Suzanne Wooten was recruited by Stephen

Spencer to run against Judge Sandoval. Mr. Spencer ultimately served as Ms.

Wooten’s campaign manager. There was also evidence about the amount of

money her campaign would need to be successful. The State also went to great

lengths to try to connect payments from Ms. Cary to Mr. Spencer, who served as

Ms. Wooten’s campaign manager, to the Wooten campaign. See generally,

Majority Opinion at 53-58.3

       The State had to connect the payments from Ms. Cary to Mr. Spencer to the

Wooten campaign because there was no evidence of any type of benefit even

arguably offered, conferred, or agreed to be conferred, to Ms. Wooten besides

campaign funding. Thus, without the campaign funding, the State could not

satisfy the “benefit” requirement of the bribery statute. Accordingly, the only

evidence that could conceivably support the requisite “benefit” consisted of

political contributions.

       The State also argues that Ms. Cary has misconstrued or misapplied the

standard for sufficiency review based on Jackson v. Virginia, 443 U.S. 307, 99 S.

3
  In footnote 12 of the State’s Brief, the State poses a hypothetical in which a defendant makes a
direct transfer of property to a judge, but the judge sells the property and uses it for the judge’s
campaign. In the hypothetical, the State urges, a jury could find that the defendant intended to
transfer a benefit to the judge directly, rather than through campaign contributions. In this case,
however, there was no evidence whatsoever of anyone transferring, or even considering
transferring, anything of value directly to Ms. Wooten or anywhere other than to the campaign.
The hypothetical simply assumes facts not in evidence.


Appellant's Reply Brief--Page 13
Ct. 2781 (1979). Ms. Cary has not. She quoted the Jackson standard in her

Appellant’s Brief, and her arguments apply it correctly. Beyond quoting this

Court’s standard of review in her brief, she believes that the Court is probably very

familiar with the Jackson standard and able to apply it in this case without

additional briefing.

       The State negated an element of its case and failed to prove bribery by

something other than a political contribution. The evidence was therefore

insufficient, and the Court should reverse Ms. Cary’s bribery convictions.

B.     Issue 2: The Evidence Was Insufficient To Prove The Requisite
       Official Action Intended To Be Exchanged For The Alleged Benefit, As
       Required By The Bribery Statute.

       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) and (2). Here, there was insufficient evidence to support the three

types of consideration charged in the indictment and presented in the jury charge:

(1) becoming a candidate for judge; (2) continuing to run for judge; and (3) making

favorable rulings as a judge.



Appellant's Reply Brief--Page 14
       The State’s arguments mischaracterize both Ms. Cary’s arguments and the

bribery statute. The State argues, incorrectly, that Ms. Cary takes the position that

the bribery statute requires an actual agreement. She does not. In her Appellant’s

Brief, she specifically stated:

       Because the statute proscribes “offering” or “agreeing to confer” a benefit in
       exchange for official consideration, the benefit need not actually be accepted
       by the public official, but there must be proof beyond a reasonable doubt
       that the benefit was at least offered to the public official in exchange for the
       consideration. See Martinez v. State, 696 S.W.2d 930, 933 (Tex. App.—
       Austin 1985, pet. ref’d).

Appellant’s Brief at 28. This is a correct statement of the law.

       The State, however, again attempts to read out of the bribery statute the fact

that the benefit must be offered “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) (emphasis added), or “as consideration for the

recipient’s decision, opinion, recommendation, vote, or other exercise of discretion

in a judicial or administrative proceeding” under section 36.02(a)(2) (emphasis

added). Simply offering benefits to a public servant with the intent to influence the

public servant generally, but without intending to obtain specific consideration

from the public servant in return, might violate the Gift Statute, a Class A

misdemeanor, but it is not bribery. See Tex. Penal Code § 36.09 (“Offering Gift To

Public Servant”).




Appellant's Reply Brief--Page 15
       In her Appellant’s Brief, Ms. Cary demonstrated that the first alleged

consideration—Ms. Wooten’s decision to run for office—cannot support a bribery

conviction because the bribery statute does not apply to a decision by a private

citizen to become a candidate. See Appellant’s Brief at 28-29. The State, like the

Majority Opinion below, does not respond to this argument.

       Ms. Cary next demonstrated that there was no evidence to support the

second alleged consideration—Ms. Wooten’s continuing to run for judge. See

Appellant’s Brief at 29-30. At a minimum, the State had to prove that someone

offered Ms. Wooten a benefit as consideration for her agreement that she would

continue to run for judge and that Ms. Cary was responsible under the law of

parties. But as the Dissent below pointed out, there was no evidence that anyone

made any such offer. See Dissenting Opinion at 16-17. Tellingly, the State does

not even attempt to identify any evidence of such an offer. Instead, the State

essentially asks the Court to assume that it did not need evidence because it got a

jury verdict. Its only response is that the lack of evidence that Ms. Wooten

considered dropping out of the race or that anyone thought she needed inducement

to stay in the race does not demonstrate that the evidence was insufficient. What it

does mean, however, is that the mere fact that Ms. Wooten continued to run for

judge is no evidence at all that anyone offered her a benefit as consideration for




Appellant's Reply Brief--Page 16
continuing to run for judge. Certainly, it is not enough for a rational jury to find

this consideration beyond a reasonable doubt.

       Finally, Ms. Cary demonstrated that there was insufficient evidence to

support the third alleged consideration—favorable rulings by Judge Wooten.

There was certainly no direct evidence that anyone offered Ms. Wooten a benefit

as consideration for favorable rulings, much less that Ms. Cary knowingly or

intentionally advanced it. The State does not disagree. Moreover, any

circumstantial evidence is completely undercut by the lack of any meaningful

favorable rulings by Judge Wooten, and indeed her recusal when she had a chance

to do so, the lack of evidence that Ms. Wooten had any idea where Mr. Spencer

was getting money, and the utter lack of evidence that Ms. Wooten even knew who

the Carys were, so that she would not know for whom to rule. At best, the

circumstantial evidence indicated a desire by David Cary to defeat Judge Sandoval

and money transferred from Stacy Cary to Stephen Spencer that was used on the

Wooten campaign. See Appellant’s Brief at 30-32. This is not sufficient to prove

an offer by someone to Ms. Wooten of a benefit in return for favorable rulings.

That would be pure speculation.

       The State responds in three ways. First, the State posits that maybe there

was an offer of a benefit in return for favorable rulings by someone, and it was just

so poorly thought out that nobody bothered to let Ms. Wooten know for whom she



Appellant's Reply Brief--Page 17
was supposed to rule favorably. There was no evidence of this, though, and it is

pure speculation, which cannot support a bribery conviction. See Hooper v. State,

214 S.W.3d 9, 15 (Tex. Crim. App. 2007) (holding that "juries are not permitted to

come to conclusions based on mere speculation or factually unsupported inferences

or presumptions”).

       Second, the State refers to a number of facts that boil down to an inference

that Ms. Cary intended to do something wrong. See State’s Brief at 40-46. This

does not mean, however, that Ms. Cary committed or intended to commit bribery.

The State cannot simply rely on evidence that Ms. Cary did, or intended to do,

something wrong. Instead, the evidence must be such that, in the light most

favorable to the verdict, a rational jury could conclude that the State proved each

element of the crime charged beyond a reasonable doubt. See Winfrey v. State,

393 S.W.3d 763, 768 (Tex. Crim. App. 2013). Evidence of doing, or intending to

do something wrong, was therefore insufficient to establish the third type of

alleged consideration under the bribery statute.

       Third, the State repeats its absurd position that it only needed to show that

Ms. Cary had “corrupt intent,” as opposed to the intent set forth in the bribery

statute. See State’s Brief at 39-40. As explained above, this argument is simply

not credible.




Appellant's Reply Brief--Page 18
       The State failed to submit sufficient evidence to establish the consideration

required by the bribery statute. Of the three types of consideration charged in the

Superseding Indictment, one was legally deficient, and the other two were

insufficiently supported by the evidence. The Court should therefore reverse Ms.

Cary’s bribery convictions.

C.     Issue 3: The evidence was insufficient to prove that Ms. Cary had the
       requisite intent to commit bribery.

       Ms. Cary’s Appellant’s Brief established that the evidence was insufficient

to prove that Ms. Cary had the requisite intent to commit bribery because:

       -Only by impermissible speculation could a jury conclude that bribery
       occurred at all, since there was no evidence that anyone offered, conferred,
       or agreed to confer a benefit to Ms. Wooten as consideration for any action
       or inaction set forth in the bribery statute.

       -Only by even further impermissible speculation could a jury conclude that
       Ms. Cary knew about, and had specific intent to promote or assist, any
       alleged bribery.

       -Intent to provide benefits to a campaign, or even to violate campaign
       finance laws, is not intent to commit bribery.

See Appellant’s Brief at 33-35.

       The State’s response is to refer back to its arguments that there were facts

sufficient to infer that Ms. Cary did, or intended to do, something wrong and that

the State need only prove generalized “corrupt intent.” The Court should reject

those arguments for the reasons set forth above.




Appellant's Reply Brief--Page 19
D.     Issue 4: The Evidence Was Insufficient To Support Ms. Cary's
       Conviction For Engaging In Organized Criminal Activity And Money
       Laundering.

       Finally, Ms. Cary argued that there was insufficient evidence to support her

convictions for Engaging in Organized Criminal Activity (“EOCA”), and Money

Laundering. EOCA required proof of a predicate crime, and the predicate crimes

charged were bribery, money laundering, and tampering with a government record.

Money laundering, both as a predicate crime for EOCA and as a separate count,

required proof of a predicate crime, and the only predicate crime charged was

bribery.

       For the reasons set forth in Appellant’s Brief, the evidence of tampering with

a government record was manifestly insufficient. None of the justices in the Court

of Appeals took the position that there was sufficient evidence of tampering with a

government record. See Dissenting Opinion at 21. The State does not even try to

defend it. Thus, EOCA and money laundering stand or fall with the bribery

charges. For the reasons set forth above, they must fall.




Appellant's Reply Brief--Page 20
                                   CONCLUSION
       Ms. Cary respectfully requests that the Court reverse her 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 APPELLANT,
                                       STACY STINE CARY


                            CERTIFICATE OF SERVICE

      This certifies that a true and correct copy of this instrument has been served
on counsel of record on August 18, 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




Appellant's Reply Brief--Page 21
                        CERTIFICATE OF COMPLIANCE

       Pursuant to Rule 9.4(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 9.4(i)(1), is 4.918. 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




Appellant's Reply Brief--Page 22
