            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1465-13



                          THOMAS DALE DELAY, Appellant

                                              v.

                                 THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE THIRD COURT OF APPEALS
                            TRAVIS COUNTY

              M EYERS, J., filed a dissenting opinion.

                           DISSENTING OPINION

       You can always tell when an opinion is written with the outcome decided before any

legal analysis is done because it reads like a medical report written by a doctor who has never

conducted a physical examination of the patient. This is precisely how the court of appeals’

opinion in this case comes across. The court of appeals concluded the evidence to be

insufficient to sustain Appellant’s conviction but directly misapplied the sufficiency of the

evidence standards. See DeLay v. State, 410 S.W.3d 902 (Tex. App.–Austin 2013, pet.
                                                                            DeLay Dissent - Page 2

granted). In his dissent, Justice Jones aptly points out all of the correct criteria for sufficiency

that was completely ignored by the majority. Id. at 917-19 (Jones, J., dissenting). Due to this

misdiagnosis by the court of appeals, the State had to file a petition for discretionary review

in our Court.

       At oral argument before our Court, the State presented an accurate and clear rendition

of how the sufficiency analysis should have been conducted in this case and how it would

have indicated that Appellant’s conviction was proper. Soon thereafter, however, counsel for

Appellant was quick to set this court straight on what we really needed to do, stating:

       There is a fine line between prosecution and persecution that was crossed, and
       has been crossed, and continues to be crossed over the past decade when a
       prosecutorial posse essentially does what it has to do to manufacture an illegal
       act out of a series of legal ones . . . When the third court shut the State down
       last September, in an equally bankrupt maneuver, concluding that the evidence
       was legally insufficient that Tom DeLay was guilty of money laundering and
       conspiracy. And when this Court does what the law requires, to affirm the
       ultimate decision of the third court of appeals, it will do what needs to be done.
       And that is to shut down, once and for all, this decade long quest of
       manufacturing an illegal act out of a series of legal ones.

Based upon these marching orders, the majority has followed Appellant’s instructions and

crafted an opinion which is just as deficient in its analysis as the one from the court of

appeals.

       The majority in this case has changed the law and ignored the facts in order to arrive

at a desired outcome, as it has done before. See Baird v. State, 398 S.W.3d 220 (Tex. Crim.
                                                                            DeLay Dissent - Page 3

App. 2013)1 ; Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013)2 . To hold, for

the first time, that Section 253.003(a) of the Election Code requires the actor to be aware that

his actions constitute a violation of the Texas Election Code completely neuters this crime.

It places a burden on the State that is impossible to overcome. How does the State gather

enough evidence to prove that the corporation knew the actions violated the Election Code?

What constitutes enough evidence to show knowledge? Which person in the corporation will

be charged with the knowledge of the entire corporation? In addition to placing this

ridiculous burden on the State, which effectively repeals the statute, this holding also allows

corporations who simply cannot be bothered to look up the law to get away with making

illegal contributions. When faced with a similar question in Osterberg v. Peca, 12 S.W.3d

31 (Tex. 2000), the Texas Supreme Court came out on the other side, holding that

“knowingly” modified only the conduct of the offense rather than the attendant circumstance,

as the majority should have held here. In fact, even though the burden in its civil cases is far

less than “beyond a reasonable doubt,” the Texas Supreme Court still did not believe that

knowledge of illegality was an element of the offense. Further, it should be noted that

Section 253.003(b), the provision that immediately follows the one at question here, states


       1
        The majority in Baird held, for the first time, that in order for evidence to be suppressed
under Article 38.23 of the Texas Code of Criminal Procedure, the defendant has the burden to
prove that the State committed a crime in obtaining the evidence.
       2
         In Wehrenberg, in an effort to support its conclusion that evidence was derived from an
independent source rather than a warrantless entry, the majority ratified, for the first time, the
State’s actions in obtaining a search warrant based on the prediction of a future crime, rather than
one that had already been committed.
                                                                        DeLay Dissent - Page 4

that “A person may not knowingly accept a political contribution the person knows to have

been made in violation of this chapter.” There, the Legislature specifically identifies that the

actor must know of the illegality. In the provision that immediately precedes it, however, the

Legislature makes no such clarification. If the Legislature intended what the majority now

holds, it would have worded the provision in the same way it did Section 253.003(b): a

person may not knowingly make a political contribution the person knows to be in violation

of this chapter. The reality here is that the majority is eager to keep Appellant from going to

prison, and, as a result, it has done one better than what the appellant’s attorney even asked

for.

       When you consider the elements of this crime as they should be, without the new

addition of knowledge of illegality, the State presented sufficient evidence to support the

conviction. Given that the evidence presented indicates that TRMPAC conveyed to the

corporations that their donations would be used for individual campaigns, a rational juror

could have concluded that the corporations made the donations with the intent that the money

go to candidates. This means that the jury could rationally decide that the initial donations

violated the law and were, therefore, proceeds of criminal activity.

       Although the majority agrees that there was evidence that the corporations knew the

donations would go to candidates, it concludes that this is not enough to affirm the conviction

because the State also needed to prove the corporations actually knew their contributions

would violate the Texas Election Code. This holding is incorrect, and in crafting an opinion
                                                                        DeLay Dissent - Page 5

to suit only the majority’s desired outcome for this case, it has changed the law, which leaves

unfortunate and lasting effects on our jurisprudence, as is illustrated by Baird and

Wehrenberg. The result of this particular case is that a corporation may now make election

donations with immunity, since the State would never be able to prove it did not actually

know the contribution violated the law. Because I would hold that knowledge of illegality is

not an element of the crime, and that a rational jury could have found the essential elements

of the crime charged beyond a reasonable doubt, as the rational jury in the case did, I

respectfully dissent.




                                                   Meyers, J.

Filed: October 1, 2014

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