                                                                                  PD-0445-15
                                                                 COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
October 28, 2015                                               Transmitted 10/26/2015 3:17:19 PM
                                No. PD-0445-15                   Accepted 10/28/2015 1:27:35 PM
                        ______________________________                            ABEL ACOSTA
                                                                                          CLERK

                   IN THE COURT OF CRIMINAL APPEALS
                                  OF TEXAS
                        ______________________________

                            THE STATE OF TEXAS,
                                            Appellant,
                                    v.

                          DAVID FREDERICK CARY,
                                               Appellee.
                        ______________________________

           From the Court of Appeals, Fifth District of Texas at Dallas
                     Court of Appeals No. 05-13-01010-CR
                       ______________________________

                          STATE’S REPLY BRIEF
                      ______________________________
  KEN PAXTON                                  *JOSEPH P. CORCORAN
  Attorney General of Texas                  Assistant Attorney General
                                                   Supervising Attorney
  CHARLES E. ROY                                for Non-Capital Appeals
  First Assistant Attorney General              State Bar No. 00793549
                                      Joseph.Corcoran@TexasAttorneyGeneral.gov
  ADRIENNE McFARLAND
  Deputy Attorney General                                    CARA HANNA
  for Criminal Justice                           Assistant Attorney General

  EDWARD L. MARSHALL                        P. O. Box 12548, Capitol Station
  Chief, Criminal Appeals Division                      Austin, Texas 78711
                                                  Telephone: (512) 936-1400
  *Lead Appellate Counsel                          Facsimile: (512) 936-1280

                        _____________________________
                        ATTORNEYS FOR THE STATE
               IDENTITY OF PARTIES AND COUNSEL

     To assist this Honorable Court in determining disqualification and

recusal, the State certifies the following is a complete list of the parties

and their attorneys in accordance with Texas Rule of Appellate Procedure

38.1(a).

1.   Counsel for the State

JOSEPH P. CORCORAN                        JESSICA M. MANOLOVICH
(this proceeding)                         (argument, this proceeding)
Assistant Attorney General                Assistant Attorney General
Texas Bar Number 00793549                 Texas Bar Number 24055632

GRETCHEN MERENDA                          CARA HANNA
(Dallas Court of Appeals)                 (argument, Dallas Court of Appeals)
Assistant Attorney General                Assistant Attorney General
Texas Bar Number 24010233                 Texas Bar Number 24055622

                          ELIZABETH GOETTERT
                          (Dallas Court of Appeals)
                          Assistant Attorney General
                          Texas Bar Number 24036646

HARRY WHITE                               CATHERINE E. CHOPIN
(trial court)                             (trial court)
(Former) Assistant Attorney General       (Former) Assistant Attorney General
Texas Bar Number 24013740                 Texas Bar Number 24055307

                          P.O. Box 12548, Capitol Station
                          Austin, Texas 78711



                                     i
2.   Appellee
     DAVID CARY

3.   Counsel for Appellee on appeal and in this proceeding
     JOHN M. HELMS
     Texas Bar Number 09401001
     Broden, Mickelsen, Helms & Snipes LLP
     2600 State Street
     Dallas, TX 75204

4.   Counsel for Appellee at trial
     KERRY LAWSON PEDIGO
     Texas Bar Number 15716500
     8401 North Central Expressway
     Suite 630
     Dallas, Texas, 75225

5.   Trial Court Judge
     THE HONORABLE JOHN R. NELMS




                                  ii
                                  TABLE OF CONTENTS
                                                                                                Page
IDENTITY OF PARTIES AND COUNSEL .............................................. i

TABLE OF CONTENTS .........................................................................iii

INDEX OF AUTHORITIES ..................................................................... v

STATEMENT OF FACTS ........................................................................ 2

STATEMENT OF THE ISSUES PRESENTED IN THIS REPLY .......... 2

SUMMARY OF THE ARGUMENT ......................................................... 2

ARGUMENT ............................................................................................. 3

I.     ISSUE ONE AND TWO: The Lower Court Erred Because a
       Reasonable Juror Could Have Found that Appellee Did Not
       Intend the Payments to Constitute “Political Contributions,”
       Irrespective of How the Money was Ultimately Spent, and the
       Evidence Was Legally Sufficient to Support the Jury’s
       Verdicts for Bribery. ......................................................................... 3

       A.      The lower court erred in reviewing the sufficiency of the
               evidence based upon an outdated and improper
               standard of review. .................................................................. 4

       B.      The lower court erred in ignoring the testimony elicited
               by Appellee that these payments were not political
               contributions, and in affording weight to the State’s
               arguments at trial ................................................................... 7

       C.      The lower court erred in holding that the intent required
               for bribery is intertwined with the intent that defines a
               political contribution. .............................................................. 9
                                                  iii
                        TABLE OF CONTENTS, Continued

II.    ISSUE THREE: The Lower Court Erred in Finding
       Insufficient Evidence to Support Appellee’s Convictions for
       Engaging in Organized Criminal Activities (EOCA) and
       Money Laundering. ........................................................................ 13

PRAYER FOR RELIEF .......................................................................... 14

CERTIFICATE OF SERVICE ................................................................ 15

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF
APPELLATE PROCEDURE 9.4 ............................................................ 16




                                                iv
                              INDEX OF AUTHORITIES

Cases

Bourg v. State, 484 S.W.2d 724, 726 n.1 (Tex. Crim. App. 1972) ............ 7

Brooks v. State 323 S.W.3d 893 (Tex. Crim. App. 2010) ...................... 5, 6

Butler v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989) .......................... 5

Carlsen v. State, 654 S.W.2d 444 (Tex. Crim. App. 1983)........................ 5

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) ......................... 5

Delay v. State 443 S.W.3d 909 (Tex. Crim. App. 2014) ............................ 5

Denby v. State, 654 S.W.2d 457 (Tex. Crim. App. 1983) .......................... 5

Freeman v. State, 654 S.W.2d 450 (Tex. Crim. App. 1983)...................... 5

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) .......................... 5

Jackson v. Virginia, 443 U.S. 307 (1979) ...................................... 2, 5, 6, 9

Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ......................... 5

Wilson v. State, 654 S.W.2d 465 (Tex. Crim. App. 1983) ......................... 5

Statutes

Tex. Election Code § 251.001 .................................................................. 10

Tex. Penal Code § 36.02 .................................................................. passim



                                                v
                        STATEMENT OF FACTS

     The State relies upon the Statement of Facts presented in its

opening brief in this proceeding (“St. Br.”), as well as the statement of

facts provided in the State’s response to Appellee’s brief in the lower

court. St. Br. at 3–6; David v. Cary, No. 05-13-01010-CR, “State’s Brief”

at 2–48.

    STATEMENT OF THE ISSUES PRESENTED IN THIS REPLY

     1.    The lower court erred because a reasonable juror could
           have found that Appellee did not intend the relevant
           payments to Spencer to constitute “political
           contributions,” irrespective of how those payments were
           ultimately spent by Wooten, and the evidence was
           legally sufficient to support the jury’s verdicts.

     2.    The lower court erred in finding insufficient evidence to
           support Appellee’s convictions for engaging in organized
           criminal activity and money laundering.

                   SUMMARY OF THE ARGUMENT

     In the interest of judicial economy, the State primarily relies on its

opening brief and submits the instant abbreviated reply to Appellee’s

brief in response. Firstly, in failing to address the lower court’s erroneous

application of the standard for sufficiency of the evidence in Jackson v.

Virginia, 443 U.S. 307 (1979), Appellee concedes this point of error.
                                     2
Additionally, both the lower court and Appellee mistakenly fuse together

the intent required for making a political contribution, with the intent

required to commit the criminal offense of bribery. For these reasons,

and those previously asserted by the State, this Court should reverse the

lower court’s ruling and affirm Appellee’s convictions.

                              ARGUMENT

I.   ISSUES ONE AND TWO: The Lower Court Erred Because a
     Reasonable Juror Could Have Found that Appellee Did Not Intend
     the Payments to Constitute “Political Contributions,” Irrespective
     of How the Money Was Ultimately Spent, and the Evidence Was
     Legally Sufficient to Support the Jury’s Verdicts for Bribery.

     For purposes of this appeal, the question is whether a reasonable

juror could conclude, beyond a reasonable doubt, that the payments made

by Appellee were not “political contributions.” Once again, the State

charged Appellee under Sections 36.02(a)(1) and (a)(2) of the Penal Code,

which thus triggered Section 36.02(d):

     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, or an
     expenditure made and reported in accordance with Chapter
     305, Government Code.




                                    3
Tex. Penal Code § 36.02(d); see id. at § 2.02 (a), (b).1

      A.     The lower court erred in reviewing the sufficiency of the
             evidence based upon an outdated and improper
             standard of review.

      Both the lower court and appellee mistakenly emphasize that the

State’s evidence in connecting the payments from Appellant and his wife

to Wooten’s benefit, indicates the State failed to prove all the elements of

bribery—namely, failing to negate the exception that the transfers

constituted political contributions. See Tex. Penal Code § 36.02(d). This

single interpretation of the State’s tracing of funds to Wooten’s campaign

purportedly demonstrates the impossibility that sufficient evidence

supports the jury’s verdict of guilty in Appellee’s six counts of bribery.

However, the adoption of this reasoning would—in application to future

cases on appellate review—ultimately amount to requiring the State to

negate ALL “outstanding reasonable hypothes[e]s inconsistent with the

guilt of the accused”—a standard rejected by this Court nearly 25 years



      1  Where a statute expressly includes the provision, “It is an exception to the
application of,” the State “must negate the existence of [that] exception in the
accusation charging commission of the offense and prove beyond a reasonable doubt
that the defendant or defendant’s conduct does not fall within the exception.”

                                         4
ago. Geesa v. State,2 820 S.W.2d 154, 160–61 (Tex. Crim. App. 1991) (en

banc), overruled on other grounds by Paulson v. State, 28 S.W.3d 570

(Tex. Crim. App. 2000).

      Appellee does not contest that the lower court obliquely referenced

the correct standard of review for the sufficiency of the evidence, as

dictated in Jackson v. Virginia, 443 U.S. 307 (1979), through the court’s

citation to Delay v. State,3 which, in turn, cited Brooks v. State.4

      But, despite its indirect reference, the lower court failed to conduct

its analysis under Jackson. More specifically, while citing evidence that


      2 In its opening brief, the State mistakenly identified Geesa as upholding the
“reasonable-hypothesis-of-innocence analytical construct,” and that such standard
was overruled by Paulson, 28 S.W.3d 570. St. Br. at 32 fn. 23, 36–37. Rather, Geesa
rejected this evidentiary standard of review (reviewing the record for evidence
supporting any “outstanding reasonable hypothesis of innocence”) for criminal cases
based upon circumstantial evidence, and overruled this Court’s prior cases
supporting the use of that standard. Geesa, at 160–61 (citing as overruled Carlsen v.
State, 654 S.W.2d 444 (Tex. Crim. App. 1983); Freeman v. State, 654 S.W.2d 450 (Tex.
Crim. App. 1983); Denby v. State, 654 S.W.2d 457 (Tex. Crim. App. 1983); Wilson v.
State, 654 S.W.2d 465 (Tex. Crim. App. 1983); Butler v. State, 769 S.W.2d 234 (Tex.
Crim. App. 1989), “and their progeny to the extent they conflict with this opinion.”).
Also, the grounds upon which Paulsen overruled Geesa pertained to jury instructions
on the definition of “beyond a reasonable doubt.” Paulson, 28 S.W.3d at 573.
      3  443 S.W.3d 909, 912 (Tex. Crim. App. 2014), republished at 465 S.W.3d 232
(Tex. Crim. App. 2014).
      4  323 S.W.3d 893, 899–902, 911 (Tex. Crim. App. 2010) (discarding the factual
sufficiency standard under Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)
and holding the legal sufficiency standard set out in Jackson is to be used when
reviewing any challenge to the sufficiency of the evidence).
                                          5
supported the State’s purported failure to negate the exception dictated

in § 36.02(d), the lower court failed to appropriately “consider[ ] all of the

evidence in the light most favorable to the verdict” to determine whether

“a jury [was] rationally justified in finding guilt beyond a reasonable

doubt.” Brooks, 323 S.W.3d at 898–99 (citing Jackson, 443 U.S. at 319).

As presented in the State’s opening brief in this proceeding, the Stacy

Cary panel—while not controlling upon this Court or the lower court—

summarized the evidence in support of the jury’s findings and verdict,

thus properly applying Jackson in its review of the sufficiency of the

evidence. St. Br. at 35 (citing Stacy Cary, 2014 WL 4261233 at *34); see

St. Br. at 4–5 (providing record citations to evidence in support of

sufficiency in the instant case, similar to the facts established in Stacy).

     Because the lower court in the instant case failed to properly apply

the correct standard of review for sufficiency of the evidence under

Jackson, this Court should reverse the lower court’s ruling and affirm

Appellant’s convictions for bribery.




                                       6
      B.    The lower court erred in ignoring the testimony elicited
            by Appellee that these payments were not political
            contributions, and in affording weight to the State’s
            arguments at trial.

      Both the lower court and Appellee assert that the State’s theory of

its case against Appellant—evidenced through the State’s opening and

closing arguments—demonstrates insufficient evidence to support the

jury’s verdict of guilty. Appellee’s Brief (“A.B.”) at 20, 24 n. 5, 25; David

Cary v. State, 460 S.W.3d 731, 735–38 (Tex. App.–Dallas 2015). But

again, arguments at trial do not comprise evidence, nor may the jury

consider attorney opening or closing arguments as evidence. See Bourg

v. State, 484 S.W.2d 724, 726 n.1 (Tex. Crim. App. 1972) (“After a concise

ruling it is often good practice for the trial court to instruct the jury that

while counsel may make reasonable deductions from the evidence that

argument of counsel is not evidence and should not be considered as such,

that the jurors are the judges of the facts, the credibility of the witnesses

and weight to be given to their testimony.”) (emphasis added).

      Alternatively, should the State’s theory as presented in its opening

and closing arguments be considered as support for Appellee and his

wife’s payments constituted political contributions, so should Appellee’s
                                      7
defense theory presented at trial through the cross-examination of State

witness James Stephen Spencer, also be considered as support for the

jury’s finding that these payments were not political contributions. See

St. Br. at 10–14 (Appellee eliciting testimony that the Carys paid Spencer

pursuant to a contract with—and services provided to—Stacy Cary (e.g.,

4 RR 173, 175, 153–56, 148–49; 5 RR 12–20, 118; see generally 4 RR 167–

75); Appellee eliciting from Spencer affirmations that none of the

payments from the Carys were, or could have constituted, political

contributions (e.g., 4 RR 172, 173, 174–75, 186–87; 5 RR 118)).

     Moreover, the State elicited testimony from Spencer that the

payments he received from Appellant’s wife Stacy were for services he

rendered, as generally described in a contract they entered together. 3

RR 194–95, 226–32, 237–68 (detailing the projects Spencer provided to

Stacy); 4 RR 17–23. During the State’s direct examination, Spencer also

denied asking Appellee to make a campaign contribution to former-Judge

Wooten (4 RR 128), and denied letting Stacy Cary know about Wooten (5

RR 93–102). Finally, State’s witness John “Jay” Valentine testified that

Spencer bragged several times that he “owned” Wooten. 8 RR 158–59.


                                    8
     Since Jackson provides that all the evidence is to be viewed in the

light most favorable to the verdict, Spencer’s and Valentine’s testimony

supports a rational juror’s finding that the Carys’ payments were not

political contributions, and that the State thus negated the exception to

the application of bribery, provided in § 36.02(d).

     C.    The lower court erred in holding that the intent required
           for bribery is intertwined with the intent that defines a
           political contribution.

     As an initial matter, Appellee does not contest that it is

unnecessary to prove a bilateral agreement between the recipient and the

individual offering the bribe, in order for that individual to be convicted

for bribery. See A.B. at 32–33. But—like the lower court—Appellee

mistakenly asserts that the State presented evidence supporting only one

of two theories of intent, each of which require Appellee’s acquittals: (1)

Appellee did not have the required intent for bribery if he “did not intend

for the transfers to be used for the Wooten campaign,” or (2) that Appellee

must have intended the transfers to be used in connection with Wooten’s

campaign, and thus the State failed to negate § 36.02(d). A.B. at 33–34

(emphasis in original); see David Cary, 460 S.W.3d at 736–38.


                                     9
      As to Appellee’s first contention, his theory would mean that any

benefit transferred to a “public servant”5 or a target who possesses or will

possess “official discretion in a judicial or administrative proceeding”—

would constitute political contributions, if such benefits were bestowed

closely to the recipient’s campaign or campaign efforts. Appellee’s theory

thus effectively guts a significant portion of the bribery statute.

      Regarding Appellee’s latter theory, the State has never presented

an argument that such a finding of intent requires a reversal of the lower

court’s ruling and acquittal, and thus an affirmation of Appellee’s

convictions.

      But, as detailed in the State’s opening brief, the requisite intent for

bribery as defined by § 36.02(a)(1), (2), and (3), is wholly separate from

the intent required under the definition of a campaign contribution under

the Election Code. St. Br. at 17–26; see Tex. Election Code § 251.001(2),

(3), (5), (6) (West. 2008). More specifically, a campaign contribution—


      5    Under section 1.07(41) of the Penal Code, in relevant part “‘public servant’
means a person elected . . . as one of the following, even if he has not yet qualified for
office or assumed his duties: . . . an officer, employee, or agent of the government . . .;
an arbitrator, referee, or other person who is authorized by law or private written
agreement to hear or determine a cause or controversy; or . . . a candidate for
nomination or election to public office[.]” Id. at (41)(A), (C), (E) (emphasis added).
                                           10
encompassed within the definition of a political contribution—requires

that some object of value is (a) directly or indirectly transferred to a

candidate and (b) intended for use in connection with a campaign for

elective office. Id.

      Contrary to the first of Appellee’s purported theories of intent for

bribery, supra, sections 36.02(a)(1) and (2) require the State to negate the

bribe-offeror’s intention that the payments be used in connection with the

campaign and, instead, prove that the offeror intended his offering to be

consideration for the recipient’s action or exercise of discretion as a public

servant, or action or exercise of official discretion in a judicial proceeding.

Stated another way, a rational juror—when viewing the evidence in the

light most favorable to the verdicts—could find that Appellee did not

possess the intention that his monies be earmarked for Wooten’s

campaign in some manner. Rather, a rational juror could have concluded

that the State proved, beyond a reasonable doubt, that Appellee did not

care how his money was spent, so long as Wooten was induced to run,

continued campaigning for the bench for the 380th District Court of

Collin County, or provided favorable rulings to him or his wife. Indeed,


                                      11
such a finding by a rational juror is supported by Appellee’s assertions

that no evidence was presented to demonstrate: the Carys or Wooten

knew or knew of each other; Wooten knew Spencer’s source for fronting

her campaign expenses under an alleged “turnkey agreement;” Appellee

had any knowledge of Spencer’s actions as Wooten’s campaign manager;

and that Appellee “was at all versed in the election law requirements” in

relation to campaign funds or reporting. A.B. at 40–41, 44.

     Stated another way: the State could not have proven the requisite

intent for a political contribution, since neither Appellee, his wife, nor

Wooten knew anything about each other, and Appellee was unaware of

the laws governing campaign funding or reporting. Further, that the

monies provided by Appellee and his wife were ultimately used in

connection with Wooten’s campaign bears no weight in reviewing the

evidence of Appellee’s intent at the time those transfers were made.

     Lastly, Appellee argues that there is insufficient evidence to

support the jury’s guilty verdicts because Wooten recused herself or took

neutral actions in the Carys’ litigation once she assumed the bench. A.B.

at 41–42. But this argument echoes Appellee’s argument that no bribery


                                   12
could have occurred without Wooten knowing or knowing of the Carys.

And again: no bilateral agreement is required to prove up bribery as

alleged in the instant case—only that Appellee intended to obtain some

“decision, opinion, recommendation, vote, or other exercise of discretion

as a public servant,” or “other exercise of official discretion in a judicial”

proceeding, through an offer, conferment or agreement of conferment, of

a benefit for such action or inaction. § 36.02(a)(1), (2). Thus, whether or

not the intended recipient knows, acknowledges, or agrees to take a

certain action as a public servant or in a judicial proceeding, has no

bearing on the proof required of the State—only that the offeror intends

or knows that he is offering, conferring, or agreeing to confer upon

someone else, a benefit in consideration for a specific action.

II.   ISSUE THREE: The Lower Court Erred in Finding Insufficient
      Evidence to Support Appellee’s Convictions for Engaging in
      Organized Criminal Activity (EOCA) and Money Laundering.

      The State and Appellee are in agreement that, should this Court

reverse the lower court’s ruling on sufficiency of the evidence and

subsequent acquittal in Counts 2 through 7 (bribery), the lower court’s

reversal and acquittal of Appellee in his convictions for EOCA and money


                                     13
laundering—both of which are predicated upon bribery—must also be

reversed. St. Br. at 38; A.B. at 47.

                         PRAYER FOR RELIEF

     For the foregoing reasons, the State respectfully requests that this

Court reverse the lower court, and affirm Appellee’s convictions on all

counts.



                                   Respectfully submitted,


                                   KEN PAXTON
                                   Attorney General of Texas

                                   CHARLES E. ROY
                                   First Assistant Attorney General

                                   ADRIENNE McFARLAND
                                   Deputy Attorney General
                                   for Criminal Justice

                                   EDWARD L. MARSHALL
                                   Chief, Criminal Appeals Division




                                       14
                                  /s/ Joseph P. Corcoran
                                  JOSEPH P. CORCORAN*
*Lead Counsel                     Supervising Attorney
                                    for Non-Capital Appeals
                                  Criminal Appeals Division
                                  State Bar No. 00793549
                                  Joseph.Corcoran@TexasAttorneyGeneral.gov

                                  CARA HANNA
                                  Assistant Attorney General

                                  P. O. Box 12548, Capitol Station
                                  Austin, Texas 78711
                                  Tel.: (512) 936-1400
                                  Fax: (512) 936-1280

                                  ATTORNEYS FOR THE STATE


                     CERTIFICATE OF SERVICE

     Pursuant to Rule 9.5(b)(1) of the Texas Rules of Appellate

Procedure, I do hereby certify that if the email address of attorneys

designated below is on file with the electronic filing manager, a true and

correct copy of the foregoing notice was served electronically by that

electronic filing manager, on John Michael Helms Jr., Attorney for

Appellee via electronic mail.

     Moreover, I do hereby certify that if the email addresses for the

designated attorney is not on file with the electronic filing manager, a

                                   15
true and correct copy of the foregoing pleading was served by email,

addressed to:

     John Michael Helms Jr.
     john@johnhelmslaw.com

                                  /s/ Joseph P. Corcoran
                                  JOSEPH P. CORCORAN
                                  Assistant Attorney General


              CERTIFICATE OF COMPLIANCE WITH
           TEXAS RULE OF APPELLATE PROCEDURE 9.4

     This brief complies with Tex. R. App. Proc. 9.4(i)(D) in that it

contains 3,018 words, as calculated pursuant to Tex. R. App. Proc. 9.1(i),

in Microsoft Word 2013, Century, 14 points.

                                  /s/ Joseph P. Corcoran
                                  JOSEPH P. CORCORAN
                                  Assistant Attorney General




                                   16
