      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00087-CR



                                 Thomas Dale DeLay, Appellant

                                                  v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
   NO. D-1-DC-05-904161, HONORABLE WAYNE PATRICK PRIEST, JUDGE PRESIDING



                               DISSENTING OPINION


               Because I do not agree with the majority opinion’s conclusions regarding the legal

sufficiency of the evidence supporting appellant’s convictions, I respectfully dissent.

               The majority concludes that there was legally insufficient evidence of any felony

offense that “generated proceeds” and, therefore, that the State failed to establish an element of the

crime of money laundering as alleged in the indictment, i.e., that the transaction appellant conducted,

supervised, or facilitated involved the proceeds of criminal activity.         See Tex. Penal Code

§ 34.02(a)(2) (“A person commits an offense if the person knowingly: . . . conducts, supervises, or

facilitates a transaction involving the proceeds of criminal activity.”).1 The majority rejects the


       1
          The majority opinion states that the State was required to establish that “there was a felony
criminal offense which generated proceeds.” Slip op. at 9. The statutory definition is somewhat
broader, however, providing that “proceeds” are “funds acquired or derived directly or indirectly
from, produced through, or realized through an act.” See Tex. Penal Code § 34.01(4). Therefore,
the State’s burden is more accurately described as establishing that funds were acquired or derived
State’s contention that certain corporate contributions made to TRMPAC were made in violation

of subchapter D of the Election Code and therefore constitute such proceeds.                 See Tex.

Elec. Code §§ 253.003(a) (unlawfully making or accepting contributions); 253.094 (prohibited

corporate contributions).

               With the exception of the specific types of contributions expressly authorized by

subchapter D of Election Code chapter 253 (sections 253.091-.104), corporations are prohibited from

making “political contributions.”2 See id. § 253.094. The lion’s share of the corporate contributions

to TRMPAC in the present case do not fall within any of the categories authorized by that

subchapter. First, they do not qualify as contributions on a “measure” authorized by section 253.096

because TRMPAC was not a committee devoted exclusively to measures. See Ex parte Ellis,

309 S.W.3d 71, 87 (Tex. Crim. App. 2010) (“[A] corporation can contribute money to support or

oppose a measure, but only if it gives that money to an entity devoted exclusively to measures,

i.e., an entity that does not contribute to candidates. A corporation violates the law if it makes a

contribution to a political committee for the purpose of supporting or opposing a measure if that

political committee also contributes to candidates.”). Second, most of the corporate contributions

here had “no strings attached” because the corporate contributors failed to designate or limit

TRMPAC’s use of the contributions. See id. at 88 (characterizing contributions not designated for

specific expenditures as having “no strings attached”). Consequently, these contributions could not


directly or indirectly from, produced through, or realized through a felony offense.
       2
         Political contributions include “campaign contributions” and “officeholder contributions.”
Tex. Elec. Code § 251.001(5). A “campaign contribution” is defined as “a contribution to a
candidate or political committee that is offered or given with the intent that it be used in connection
with a campaign for elective office or on a measure.” Id. § 251.001(3).

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qualify as political expenditures authorized by section 253.100. See Tex. Elec. Code § 253.100 (a)

(permitting corporate political expenditures only to finance “establishment or administration” of

general-purpose committee). In Ellis, the court of criminal appeals explained that in order for a

corporate contribution to a political committee to constitute a section 253.100 expenditure, the

contributor must have designated that the contribution be used for an authorized purpose.

309 S.W.3d at 88 (“A contribution [by a corporation] with no strings attached would not qualify as

[a section 253.100] expenditure.”). Finally, because TRMPAC was neither a political party nor the

principal political committee for a party, the corporate contributions were not authorized by section

253.104. See Tex. Elec. Code § 253.104 (permitting corporate contributions to political party under

certain defined conditions).

               The court of criminal appeals in Ellis held that corporations may not make

contributions to political committees without either expressly or implicitly limiting their use to a

specific authorized purpose:


       It would be more accurate to say that there is no such thing as a legal undesignated
       corporate political contribution. Individuals can legally make undesignated political
       contributions, but corporations cannot. A corporation must designate the purpose of
       the political contribution by contributing to a political committee that is exclusively
       devoted to measures, by making expenditures for maintenance or operation of a
       corporate political committee, or by contributing to a political party under certain
       narrow conditions.


Ex parte Ellis, 309 S.W.3d at 88 (emphases added). The corporate contributions in the present case

were not so limited and do not fit within any of the categories of political contributions or political

expenditures authorized by subchapter D. Thus, the corporate contributions to TRMPAC were made



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in violation of Election Code sections 253.003 and 253.094, an offense constituting a third degree

felony. See Tex. Elec. Code §§ 253.003(a), (e) (knowingly making contribution in violation of

chapter 253), .094(c) (“An offense under this section is a felony of the third degree.”). Accordingly,

the relevant corporate contributions to TRMPAC, being undesignated, constitute proceeds of

criminal activity.

               Moreover, even if undesignated corporate contributions to TRMPAC could somehow

fall into a category of political contributions or expenditures authorized by subchapter D, the

evidence presented at trial would still be legally sufficient to support a jury finding that those

corporate contributions were in fact made with the intent that they be used to support individual

candidates for public office and were, therefore, made in violation of subchapter D. Evidence is

legally sufficient if, after reviewing it in the light most favorable to the verdict, we determine that

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 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex.

Crim. App. 2010). “Viewing the evidence ‘in the light most favorable to the verdict’ under a

legal-sufficiency standard means that the reviewing court is required to defer to the jury’s credibility

and weight determinations because the jury is the sole judge of the witnesses’ credibility and the

weight to be given their testimony.” Brooks, 323 S.W.3d at 899.

               A rational juror hearing the evidence presented in this trial could have found that the

relevant corporate contributions to TRMPAC were made with the intent that they be used to support




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individual candidates or be put to other purposes not authorized by subchapter D. The brochures,

forms, and letters used by TRMPAC to solicit these contributions included statements such as

the following:


       •         “TRMPAC is focused on raising and giving funds directly to Republican
                 candidates for state house, state senate, and potentially all statewide offices.”

       •         “Your support today will go directly to help Republican candidates in Texas
                 successfully run and win their campaigns.”

       •         “All contributions, whether to the PAC or individuals, will be used for direct
                 campaign expenses.”

       •         “Unlike other organizations, your corporate contribution to TRMPAC will be
                 put to productive use. Rather than just paying for overhead, your support will
                 fund a series of productive and innovative activities designed to increase our
                 level of engagement in the political arena.”


I disagree with the majority’s assertion that these statements are evidence only of TRMPAC’s

intentions and do not constitute evidence of the intent of the corporate contributors. As the court of

criminal appeals observed, “intent can be ascertained with respect to corporations for the purpose

of imposing criminal liability.” Ex parte Ellis, 309 S.W.3d at 90 (citing New York Central

& Hudson River R.R. Co. v. United States, 212 U.S. 481, 483 (1909) (“‘There is no more difficulty

in imputing to a corporation a specific intent in criminal proceedings than in civil.’” (quoting

Telegram Newspaper Co. v. Commonwealth, 52 N.E. 445, 446 (Mass. 1899)))). A corporation’s

intent may be divined from the actions taken by its agents equipped with knowledge of certain facts.

See Vaughan & Sons v. State, 737 S.W.2d 805, 806 (Tex. Crim. App. 1987) (observing that it is

generally accepted that intent of corporation’s employees or agents may be imputed to corporation).



                                                    5
A rational juror could find that a corporation that makes a contribution to a political committee

whose stated primary purpose is to raise and give funds directly to candidates, in response to a

solicitation that essentially promises that the funds will be used for “direct campaign expenses”

“rather than just paying for overhead,” is doing so with the intent that its contribution go to an

individual candidate or campaign.

               The majority emphasizes that representatives of several contributing corporations

testified that they assumed their donations would be used for lawful purposes and that they intended

to comply with the law, but that testimony does no more than create a fact issue with regard to their

intent. Such a fact issue is, of course, properly resolved by the jury, whose judgment regarding a

witness’s credibility we may not supplant with our own. See Brooks, 323 S.W.3d at 899 (in

applying legal-sufficiency standard, reviewing court is required to defer to jury’s credibility and

weight determinations).

               Finally, I disagree with the majority’s statement that the State failed to prove the

applicable culpable mental states because the corporations “could lawfully make donations to

TRMPAC.” Slip op. at 13. It does not logically follow that merely because a corporation could

make a legal contribution, it necessarily did make a legal contribution. Again, the presence or

absence of the requisite intent was simply a fact issue to be resolved by the jury.

               For these reasons, I disagree with the majority’s conclusion that there was legally

insufficient evidence to support a jury finding that the corporate contributions at issue here were the




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proceeds of criminal activity.3 I therefore do not join in its holding that the State failed to establish

an element of the crime of money laundering as alleged in the indictment, specifically that appellant

conducted, supervised, or facilitated a transaction involving the proceeds of criminal activity.




        3
          I also have serious reservations regarding the majority’s holding that appellant’s agreement
to transfer $190,000 in corporation contributions to the RNSEC in exchange for the RNSEC’s
making equivalent donations to individual campaigns could not be considered an act creating
criminal proceeds that is separate from the transfer itself. The Election Code prohibits not only
making unauthorized contributions but also the agreement to make an unauthorized contribution.
See Tex. Elec. Code § 251.001(2) (“‘Contribution’ means a direct or indirect transfer of money,
goods, services, or any other thing of value and includes an agreement made or other obligation
incurred, whether legally enforceable or not, to make a transfer.” (emphases added)). Moreover, the
offense of money laundering contemplates that the act that criminalizes the proceeds need not be
completely unrelated to the act that “launders” the money but may also be a completed phase of an
ongoing transaction. See, e.g., United States v. Morelli, 169 F.3d 798, 804, 807-08 (3d Cir. 1999)
(criminal proceeds may derive from completed offense or completed phase of ongoing offense:
“This is true even if the money laundering transaction can also be considered a part of the continuing
specified unlawful activity.” (citing United States v. Conley, 37 F.3d 970, 980 (3d Cir. 1994))).
Because the Election Code prohibits an agreement to make an unauthorized contribution, once
appellant made such an agreement, that specified unlawful activity had been completed, and funds
were “acquired or derived directly or indirectly from, produced through, or realized through” that
act. See Tex. Penal Code § 34.01(4) (defining “proceeds”). In other words, the agreement itself was
a distinct transaction and a distinct offense. See United States v. Szur, 289 F.3d 200, 214 (2d Cir.
2002). Although the majority holds that the transaction appellant agreed to was not itself a violation
of the Election Code, I question whether the statute permits the exchange of corporate money for
individual money through a series of transactions that concludes with individual candidates receiving
an amount of money identical to that contributed by the corporations. Such conduct appears to be
an attempt to circumvent, rather than comply with, Election Code restrictions on the use of corporate
political contributions.

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                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Gaultney*

Filed: September 19, 2013

Publish

* Before David Gaultney, Justice, Ninth Court of Appeals, sitting by assignment. See Tex. Gov’t
      Code § 74.003(a).




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