                                                                            PD-1341-14
                                                       COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                     Transmitted 5/15/2015 10:45:09 PM
                                                        Accepted 5/19/2015 2:40:05 PM
         APPELLANT REQUESTS ORAL               ARGUMENT/                ABEL ACOSTA
                                                                                CLERK
              ORAL ARGUMENT GRANTED


         IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                 ______________________________
                            No. PD-1341-14
                   _______________________________

                    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 BRIEF


                                 John M. Helms
                                 Texas Bar No. 09401001
                                 BRODEN, MICKELSEN, HELMS &
                                 SNIPES, LLP
                                 2600 State Street
   May 19, 2015                  Dallas, Tx 75204
                                 Tel: (469) 951-8496
                                 Fax: (214) 720-9594
                                 john@johnhelmslaw.com

                                 ATTORNEY FOR APPELLANT,
                                 STACY STINE CARY
                     IDENTITY OF PARTIES AND COUNSEL

A.     Parties.

       Defendant/Appellant: Stacy Stine Cary

       Plaintiff/Appellee: The State of Texas

B.     Counsel.

       Counsel for Defendant/Appellee Stacy Stine Cary:

               Appellate Counsel:

                      John M. Helms
                      BRODEN, MICKELSEN, HELMS & SNIPES, LLP
                      2600 State Street
                      Dallas, Tx 75204

               Trial Counsel:

                      Richard T. Ryczek
                      The Ryczek Firm, P.C.
                      368 West Pike Street, Suite 203
                      Lawrenceville, Ga. 30046

                      Heather J. Barbieri
                      Barbieri Law Firm, P.C.
                      5600 Tennyson Parkway, Suite 205
                      Plano, Texas 75024

                      Robert R. Smith (sentencing only)
                      Knox Fitzpatrick (sentencing only)
                      Fitzpatrick, Hagood, Smith & Uhl LLP
                      Chateau Plaza, Suite 1400
                      2515 McKinney Avenue
                      Dallas, Texas 75201-7600




Appellant's Brief--Page i
       Counsel for Plaintiff/Appellee The State of Texas:

               Appellate Counsel:

                      Joseph Corcoran (lead appellate counsel)
                      Gretchen Merenda (lead appellate counsel before Dallas Court
                      of Appeals)
                      Don Clemmer
                      Edward L. Marshall
                      Office of the Attorney General
                      P.O. Box 12548
                      Austin, Texas 78711

               Trial Counsel:

                      Harry E. White
                      Cathy E. Chopin
                      Office of the Attorney General
                      P.O. Box 12548
                      Austin, Texas 78711




Appellant's Brief--Page ii
                              TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL………………………………….……i

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

INDEX OF AUTHORITIES……………………………………………………....vi

STATEMENT OF THE CASE…………………………………………………….1

STATEMENT REGARDING ORAL ARGUMENT……………………………...1

ISSUES PRESENTED…………………………………………………………......2

STATEMENT OF FACTS……………………………………………………........2
SUMMARY OF ARGUMENT……………………………………………...........10
ARGUMENT……………………………………………………………………...12

I.     STANDARD OF REVIEW AND OVERVIEW OF THE BRIBERY
       CHARGES ……………………………………….......................................12

       A.      STANDARD OF REVIEW…………………………………............12

       B.      THE BRIBERY CHARGES………………………………...............13

               1.      ALL CHARGES WERE EITHER BRIBERY OR A
                       CHARGE THAT INCORPORATED
                       BRIBERY…………………………………………….............13

               2.      THE BRIBERY STATUTE AS CHARGED IN THIS
                       CASE…………………………………………………............14

               3.      ALL BRIBERY ALLEGATIONS CHARGE THE BRIBING
                       OF MS. WOOTEN TO BECOME A CANDIDATE, TO
                       CONTINUE TO RUN FOR OFFICE, AND MAKING
                       FAVORABLE RULINGS……………………………………17




Appellant's Brief--Page iii
II.    ARGUMENTS REGARDING ISSUES PRESENTED…………………...18

       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………………………….………….18

       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………………………27

       C.     ISSUE 3: THE EVIDENCE WAS INSUFFICIENT TO
              PROVE THAT MS. CARY HAD THE REQUISITE INTENT
              TO COMMIT BRIBERY…………………………………...……….33

       D.     ISSUE 4: THE EVIDENCE WAS INSUFFICIENT TO
              SUPPORT MS. CARY’S CONVICTION FOR ENGAGING
              IN ORGANIZED CRIMINAL ACTIVITY AND MONEY
              LAUNDERING…………………………………………….……….35

              1.      THE EVIDENCE OF ENGAGING IN ORGANIZED
                      CRIMINAL ACTIVITY WAS INSUFFICIENT
                      BECAUSE THE EVIDENCE OF THE PREDICATE
                      OFFENSES WAS INSUFFICIENT………………………….35

                      a.     PREDICATE OFFENSE OF BRIBERY…...…………36

                      b.     PREDICATE OFFENSE OF MONEY
                             LAUNDERING..............................................................36

                      c.     PREDICATE OFFENSE OF TAMPERING WITH
                             A GOVERNMENT RECORD………………………...37

              2.      THE EVIDENCE OF MONEY LAUNDERING WAS
                      INSUFFICIENT………………………………………….......41

CONCLUSION………………………………………………………………...…42

Appellant's Brief--Page iv
                            INDEX OF AUTHORITIES

Statutes/Rules:

Texas Election Code § 251.001 ………………………………………………..…24

Texas Election Code § 251.001(2)………………………………………………..19

Texas Election Code § 251.001(3)……………………………………………..…19

Texas Election Code § 251.001(5) ……………………………………………….19

Texas Government Code § 572.023(a) ……………………………………….38, 39

Texas Penal Code § 1.07 (a)(41)………………………….....................................29
Texas Penal Code § 2.02(b)………………………….............................................20
Texas Penal Code § 7.02 (a)………………………………………………......33, 34
Texas Penal Code § 34.01 (1)…………………………………………………14, 37
Texas Penal Code § 34.02(a)(1)………………………………………………15, 28

Texas Penal Code § 34.02(a)(2)………………………………………………15, 28
Texas Penal Code § 34.02(a)(1), (2)……………………………1, 15, 16, 19, 26, 27

Texas Penal Code § 34.02(a)(1), (2), (3)……………………………….…………14

Texas Penal Code § 34.02(a)(1), (2), (3), (4)..……………………………………14

Texas Penal Code § 34.02 (a)(4)……………………………......……...1, 14, 37, 41
Texas Penal Code § 36.02……………………………………….......…………..…1
Texas Penal Code § 36.02 (a)(1)……………………………………...14, 15, 23, 26

Texas Penal Code § 36.02(d)…………………………………….……16, 19, 23, 24

Texas Penal Code § 36.09………………………………………………...………17

Texas Penal Code § 37.10 (a)(5)………………………………………….14, 37, 38
Texas Penal Code § 71.02 (a)…………………………………..………1, 13, 35, 36

Appellant's Brief--Page v
Cases:
Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2012) (Cochran, J.
concurring)…………………………………......………………………………….12

Carter v. State, 656 S.W.2d 468 (Tex. Crim. App. 1983) (en banc)……………...26

Cary v. State, No. 05-13-01010, slip op. at 11 (Tex. App.—Dallas, March 25,
2015)………………………………………………………………………..…25, 41

Ex parte Thompson, 179 S.W. 3d 549 (Tex. Crim. App. 2005)……...………..…34
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).................................12

Hill v. State, 883 S.W.2d 765 (Tex. App.--Amarillo 1994, pet. ref’d)……............34

Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007)…………….........12, 33

Hubbard v. State, 668 S.W.2d 419 (Tex. App—Dallas 1984, pet.granted
on other grounds)………………………………………………………...……17, 33

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979)................................12, 33
Martinez v. State, 696 S.W.2d 930, 933 (Tex. App.—Austin 1985, pet. ref’d)16, 28

McCallum v. State, 686 S.W.2d 132, 136 (Tex. Crim. App. 1985)…...16, 28, 30, 32
See Opokuofosu v. State, 1998 Tex. App. LEXIS 903, *16 (Tex.App. –
Texarkana 1998, pet. ref’d)……………………………………………………….38

Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012)……………….…26

Winfrey v. State, 2013 Tex. Crim. App. Lexis 431, 10-12
(Tex. Crim. App. Feb. 27, 2013)…………………………………...…………12, 33




Appellant's Brief--Page vi
                                 STATEMENT OF THE CASE
         This is an appeal from a criminal conviction from the 366th Judicial District

Court of Collin County, Texas. Following a jury trial, Appellant, Stacy Stine Cary

("Ms. Cary"), was convicted of one count of Engaging in Organized Criminal

Activity under section 71.02(a) of the Texas Penal Code, six counts of bribery

under sections 36.02(a)(1) and (2) of the Texas Penal Code, and one count of

money laundering under section 34.02(a)(4) of the Texas Penal Code. TR 9 at 57-

60.1

         On each count, Ms. Cary was sentenced to serve ten years in prison,

probated for ten years, plus thirty days of jail time. The sentences on each count

run concurrently. TR10 at 187.

         A divided panel of the Dallas Court of Appeals affirmed all convictions.

Two justices voted to affirm. The dissenting justice would have reversed all

convictions.

         This Court granted a petition for discretionary review on the issues below.

                  STATEMENT REGARDING ORAL ARGUMENT
         Appellant respectfully requests oral argument, which the Court has already

granted. This case involves multiple actors, the interplay of election law, and

circumstantial evidence. Appellant believes that the facts and the application of

the law are sufficiently complicated that oral argument would benefit the Court.
1
    TR # refers to the trial record, volume #.


Appellant's Brief--Page 1
                               ISSUES PRESENTED
       1.     Whether Ms. Cary’s bribery convictions should be reversed because
              the evidence was insufficient to prove bribery by something other than
              “political contributions”?

       2.     Whether the evidence was sufficient to prove the requisite
              official action intended to be exchanged for the alleged benefit, as
              required by the bribery statute?

       3.     Whether the evidence was sufficient to prove that Appellant had the
              requisite intent to commit bribery?

       4.     Whether the evidence was sufficient to support Ms. Cary's conviction
              for engaging in organized criminal activity and money laundering?

                             STATEMENT OF FACTS
A.     Introduction.

       This case involves efforts to unseat a Collin County judge who had a

reputation for being vindictive, biased, and abusive. That judge, Charles Sandoval,

had presided over the 380th Judicial District Court of Collin County, Texas. He

was defeated in the 2008 Republican primary by a candidate named Suzanne

Wooten ("Ms. Wooten" or "Judge Wooten"). There was no Democratic opponent

in the general election, and Ms. Wooten therefore became judge of the 380th

Judicial District Court.

       In this case, the State charged that Ms. Cary, along with her husband, David

Cary ("David Cary" or "Mr. Cary"), and a man who became Ms. Wooten's

campaign manager, Stephen Spencer ("Mr. Spencer"), acted together to bribe Ms.

Wooten. The State made these charges even though all of the alleged bribe money

Appellant's Brief--Page 2
was spent by Mr. Spencer on behalf of the Wooten campaign, none went to Ms.

Wooten, all of it was invoiced to the Wooten campaign, and all of it was paid back

in full by the Wooten campaign from funds that the Wooten campaign legitimately

raised.

       The State's bribery theory was that the Carys paid Mr. Spencer money, Mr.

Spencer spent a significant percentage of it on Wooten campaign expenses, and

Mr. Spencer did not invoice the Wooten campaign quickly enough. According to

the State, this allowed Mr. Spencer to make some expenditures on behalf of the

Wooten campaign at times when the campaign did not yet have enough money

raised to cover the expenditures.

B.     David Cary's Divorce Proceedings In Judge Sandoval's Court.

       In 2003, David Cary filed for divorce from his wife, Jennifer Cary. TR 11 at

1259 (State's Tr. Ex. 7). The case was assigned to Judge Sandoval's court. Id.

       In the mid-2004, the parties reached a mediated settlement, and on October

5, 2004, the court approved the mediated settlement and entered a Final Divorce

Decree. TR 11 at 1282 (State's Tr. Ex. 7). The Final Divorce Decree made David

and Jennifer Cary Joint Managing Conservators over their two young daughters

who were born prematurely and who were both special needs children. Id.

       Barely more than six months later, however, on April 13, 2005, Jennifer

Cary filed a Petition to Modify the Final Divorce Decree. TR 11 at 1353 (State's



Appellant's Brief--Page 3
Tr. Ex. 7). In that Petition, which was also assigned to Judge Sandoval's court,

Jennifer Cary raised a dispute over the care and counseling for the two daughters.

She asked the court to give her the exclusive right to designate the children's

residence and to modify the visitation schedule to reduce David Cary's visitation.

Id. After this point, the litigation became heated.

       Jennifer Cary was represented by attorney Rick Robertson, who was known

to be very close to Judge Sandoval and one of his strongest supporters. TR 8 at 45.

During the course of the litigation, David Cary's attorney learned of what he

believed were ex parte contacts between Mr. Robertson and Judge Sandoval. He

therefore filed a motion to recuse Judge Sandoval on April 28, 2006. TR 11 at

1361 (State's Tr. Ex. 7). Ultimately, the motion was unsuccessful, and Judge

Sandoval remained on the case. David Cary began to feel more and more like

Judge Sandoval was biased against him and was treating him unfairly.

       Judge Sandoval had a reputation in Collin County for being vindictive and

abusive. Testimony in the record includes the results of an internet poll showing

Judge Sandoval as being one of the five worst judges in the State of Texas and the

most reversed judge in Collin County. TR 4 at 95-96. There was testimony that

most lawyers in Collin County were "terrified" of Judge Sandoval and that lawyers

repeatedly commented that "he's vindictive and he'll make you pay." TR 6 at 35-

36; TR 8 at 45, 55.



Appellant's Brief--Page 4
       On December 1, 2006, Judge Sandoval granted Jennifer Cary's Petition to

Modify in full. He removed David Cary as Joint Managing Conservator and

appointed Jennifer Cary as Sole Managing Conservator of the girls. TR 11 at 1442

(State's Tr. Ex. 7). He also awarded Jennifer Cary attorney's fees of $416,543.16.

Id. David Cary did not appeal any aspect of this order.

       On January 23, 2007, David Cary filed a Petition to Modify the child support

schedules. He also requested a transfer of the matter to Dallas County, where he

alleged that the children had primarily lived over the past six months. TR 11 at

1473 (State's Tr. Ex 7). Judge Sandoval denied this petition and imposed sanctions

on David Cary and his lawyer.

C.     David Cary's Attempts At Legislative Reform And His Introduction To
       Stephen Spencer.
       During this time, David Cary became increasingly disillusioned with the

way Texas courts handle family law and parental rights issues. He began

considering whether there were potential legislative solutions and talking to people

in Austin.

       At the same time, Stephen Spencer was talking to members of the State

Legislature and their staffs about similar issues. Mr. Spencer had an interest in

parental rights, and he had connections to an organization called the Texas Home

School Counsel.




Appellant's Brief--Page 5
       The General Counsel for Texas Speaker of the House Tom Craddick had

been in contact with both the Carys and Mr. Spencer, and he introduced them by

email because of their shared interests. TR 4 at 15-19.

       In early October of 2007, Mr. Spencer drove to the Carys' home in Dallas to

meet with them. TR 4 at 56-57. Mr. Spencer and the Carys discussed David

Cary's interest in legislation concerning parental rights. Id. Mr. Spencer indicated

that he knew about how the legislative process worked and thought he could help

Mr. Cary. Id.

       At around the same time, in addition to possible legislative solutions, Mr.

Spencer had been discussing with Tim Lambert of the Texas Home School

Council, the possibility of trying to unseat judges who were not following the law

in the area of parental rights. TR 4 at 79-106. After talking to David Cary, Mr.

Spencer went to Collin County and reviewed David Cary's divorce file. Id. He

also did research on Judge Sandoval and concluded that Judge Sandoval lacked a

family law background, had a very poor reputation, and was not applying the law

correctly. Id. Mr. Spencer ultimately decided to try to find someone who could

run against Judge Sandoval. Id. He considered other Collin County judges, but he

decided to focus his efforts on Judge Sandoval. Id.




Appellant's Brief--Page 6
D.     Stephen Spencer Recruits Suzanne Wooten To Run.

       In or around mid-November 2007, Mr. Spencer began speaking to several

lawyers in Collin County about running against Judge Sandoval. TR 4 at 110. He

was turned down several times before he contacted Suzanne Wooten.

       Mr. Spencer got Ms. Wooten's name from the chairman of the Collin County

Democratic Party. TR 4 at 137. They had been trying to recruit Ms. Wooten to run

against Judge Sandoval as well, but Ms. Wooten had declined, presumably because

it is almost impossible for a Democrat to win in Collin County. TR 4 137-38.

       Ms. Wooten had expressed interest to others in running for judge before. TR

8 at 19. She was a good candidate because she had a family law background and

was well-respected. TR 4 137-140, 147-48. One of the State's witnesses testified,

for example, that she was very concerned even with appearances of impropriety.

TR 8 at 22-23.

       In his initial conversation with Ms. Wooten, Mr. Spencer told her that he had

already lined up an experienced political consultant, which he had done, whose

name was Hank Clements. TR 4 at 149-51, 183. He also told her that, through his

contacts, including the Texas Home School Counsel, he could help get her name

out, help her get endorsements, and help with grass roots support. TR 4 at 150-51.

       Ms. Wooten agreed to enter the race as a Republican and made Mr. Spencer

her campaign manager. She filed papers on January 2, 2008. TR 4 at 144.



Appellant's Brief--Page 7
E.     Ms. Wooten's Campaign.

         Mr. Spencer served as Ms. Wooten’s campaign manager. He worked with

Mr. Clements, who served as a strategy consultant for Ms. Wooten's campaign.

Through his company, SpenOff Strategies, Mr. Spencer paid for certain campaign

expenditures, such as advertising, and sent the campaign invoices for

reimbursement. TR 4 at 237-38. The Wooten campaign’s reimbursements to Mr.

Spencer’s company were recorded as campaign expenditures on Ms. Wooten’s

campaign finance reports. TR 11 at 2152 (Exh. 62). Mr. Clements testified that

having a campaign consultant operate this way is not unusual, that he has done that

in the past, and that it is not illegal. TR 4 at 239, 243.

       Stacy Cary was a high school graduate who had worked on her family's

businesses and was married to David Cary. TR 7 at 157. Ms. Cary had very little

involvement in any of the foregoing. The evidence at trial showed that Ms. Cary

was involved with requesting or causing monetary transactions through which the

Carys made payments to Mr. Spencer. From January 4, 2008 to March 14, 2008,

the total amount of payments from Ms. Cary to Mr. Spencer was $150,000. There

was no evidence that Ms. Cary had any contact with Ms. Wooten or was involved

in her campaign in any way whatsoever.

       According to the State, the Wooten campaign reimbursed Mr. Spencer for

about $102,291.23 worth of campaign expenses that he initially paid for and later



Appellant's Brief--Page 8
billed the campaign. TR 7 at 185-86. All of the money that Mr. Spencer paid and

invoiced to the Wooten campaign was used for real campaign expenditures. TR 9

at 44. There is no evidence of any direct or indirect transfers to Ms. Wooten,

personally. The State does not contend that any of the funds were raised

improperly. Indeed, all of the reimbursements to Mr. Spencer were from the

Wooten campaign account and from properly raised money. TR 7 at 185-86.

F.     Ms. Wooten Becomes Judge of the 380th Court And Promptly Recuses
       Herself From David Cary’s Child Custody Case.

       The Republican primary was on March 4, 2008. TR 4 at 142-44. Ms.

Wooten won the primary and did not have an opponent in the general election.

She therefore became judge of the 380th Judicial District Court.

       After taking the bench, Judge Wooten recused herself from David Cary’s

child custody case. She did so not because of potential bias in favor of Mr. Cary,

but because she was concerned about a potential conflict of interest that could have

made her appear biased against David Cary.

       When David Cary's divorce/child custody case ultimately came back in

Judge Wooten's court, Judge Wooten's former campaign treasurer, Alma

Benavides, appeared as counsel on behalf of David Cary's ex-wife and against

David Cary. TR.11 at 1734 (State Tr. Ex. 7). Because of that, Judge Wooten

raised the issue of recusal herself, saying that, because of her relationship with Ms.

Benavides, she was "tremendously concerned" about fairness to Mr. Cary's

Appellant's Brief--Page 9
counsel. Tr. 11 at 2460 (State Tr. Ex. 64 at 3-4). Judge Wooten ultimately asked

that Ms. Benavides file a recusal motion so that she could rule on it. TR 11 at

2460 (State Tr. Ex. 64 at 15). The motion was filed, and Judge Wooten recused

herself on March 4, 2009--less than a week after Ms. Benavides appeared. TR 11

at 1736 (State Tr. Ex. 7). Thus, Judge Wooten made no rulings in the case that was

Mr. Cary’s alleged motivation for wanting to remove Judge Sandoval.

                             SUMMARY OF ARGUMENT
       There was insufficient evidence to support Ms. Cary's bribery convictions.

First, the sections of the bribery statute under which Ms. Cary was charged require

proof beyond a reasonable doubt that Ms. Cary committed bribery by something

other than a “political contribution.” The State’s proof at trial, however, not only

failed to do so, but it affirmatively proved Ms. Cary’s innocence, because the only

possible benefits she conveyed were “political contributions.

       Second, the Superseding Indictment alleges bribery as consideration for Ms.

Wooten's decision to become a candidate, her continuing to be a candidate, and for

favorable rulings. The evidence was insufficient as to each of these. Ms. Wooten's

decision to become a candidate cannot support the conviction because the bribery

statute does not apply to a decision to become a candidate. Continuing to run for

office cannot support a bribery conviction because there no evidence to support it.

There was also insufficient evidence of the commission of bribery as consideration



Appellant's Brief--Page 10
for favorable rulings, in particular, because there was no evidence that the alleged

recipient would have known for whom to rule favorably.

       Third, there was insufficient evidence that Ms. Cary had the requisite intent

to commit bribery for any reason.

       Fourth, there was insufficient evidence of engaging in organized criminal

activity (“EOCA”), and money laundering. As to EOCA, there was insufficient

evidence of the alleged predicate crimes. Two of the three alleged predicate crimes

depend on bribery, and the evidence of bribery was insufficient for the reasons

above. The third alleged predicate crime was tampering with a government record,

but the evidence fails to show that the government record was false or that Ms.

Cary had any knowledge of it whatsoever.

       There was insufficient evidence of money laundering as alleged, because it

requires proof of bribery, and the evidence of bribery was insufficient.

       The decision in the Court of Appeals was 2-1. Justice FitzGerald dissented

and would have reversed all of Ms. Cary’s convictions. In Ms. Cary’s husband’s

appeal, a unanimous panel of the Dallas Court of Appeals recently reversed all of

David Cary’s convictions on the same charges. That opinion is Appendix A,

hereto.

       The dissent in this case and the unanimous panel in David Cary’s case were

correct. This Court should reverse all of Ms. Cary’s convictions.



Appellant's Brief--Page 11
                                   ARGUMENT

                                          I.

                        STANDARD OF REVIEW
                AND OVERVIEW OF THE BRIBERY CHARGES

A.     Standard of Review.

       This Court has articulated the standard of review for sufficiency of the

evidence as follows:

       We apply Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.
       Ed. 2d 560 (1979), as the standard for reviewing the sufficiency of
       evidence. "In determining whether the evidence is legally sufficient
       to support a conviction, a reviewing court must consider all of the
       evidence in the light most favorable to the verdict and determine
       whether, based on that evidence and reasonable inferences therefrom,
       a rational fact finder could have found the essential elements of the
       crime beyond a reasonable doubt."

Winfrey v. State, 2013 Tex. Crim. App. LEXIS 431, 10-12 (Tex. Crim. App. Feb.

27, 2013) (quoting Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)).

       Under this standard, "juries are not permitted to come to conclusions based

on mere speculation or factually unsupported inferences or presumptions." Hooper

v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). "[T]here is no higher standard

of appellate review than the standard mandated by Jackson." Brooks v. State, 323

S.W.3d 893, 917 (Tex. Crim. App. 2010) (Cochran, J. concurring).




Appellant's Brief--Page 12
B.     The Bribery Charges.

       1.     All Charges Were Either Bribery Or A Charge That
              Incorporated Bribery.
       Bribery is the linchpin of every charge against Ms. Cary. The Superseding

Indictment charges Ms. Cary with bribery in six substantive counts (Counts II-

VII). Each bribery count involves a separate payment by Ms. Cary to Mr. Spencer.

       Bribery was also a critical component of the other two charges. Count I,

Engaging in Organized Criminal Activity, incorporates the same bribery

allegations. In order to commit the crime of Engaging in Organized Criminal

Activity, the Texas Penal Code requires, in pertinent part, proof beyond a

reasonable doubt that a person "establish, maintain, or participate in a

combination...to commit or conspire to commit one or more of" a list of predicate

crimes. Tex. Pen. Code § 71.02(a). In this case, the State charged bribery as one

of three predicate crimes. The other two are money laundering, which has bribery

as its predicate offense, and tampering with a government record.

       The jury was instructed that they should convict on Engaging in Organized

Criminal Activity if they unanimously agreed, beyond a reasonable doubt, that Ms.

Cary had established, maintained, or participated in a combination to commit or, as




Appellant's Brief--Page 13
a lesser included offense, conspire to commit, any of the three predicate crimes--

bribery, money laundering,2 or tampering with a government record.3

       Count VIII, money laundering, also stands or falls with the bribery charges.

In pertinent part, the Texas money laundering statute makes it a crime if a person

"knowingly...finances or invests or intends to finance or invest funds that the

person believes are intended to further the commission of criminal activity." Tex.

Pen. Code § 34.02(a)(4). For purposes of this case, "[c]riminal activity" means a

felony offense. Tex. Pen. Code § 34.01(1). Count VIII alleges that the criminal

activity was bribery. Superseding Indictment, Count VIII.

       2.     The Bribery Statute As Charged In This Case.

       The Texas bribery statute has four operative subsections that delineate the

crime of bribery—Tex. Pen. Code §§ 36.02(a) (1), (2), (3), and (4). Subsections

(a) (1), (2), and (3) do not apply to a benefit that is “a political contribution as

defined by Title 15, Election Code.” Tex. Pen. Code §36.02(d). Only subsection

(a)(4) applies if the benefit is a political contribution. See id.

       Subsection (a)(4), which applies to political contributions, requires

significantly more strict proof than the other subsections. Unlike subsections (a)

(1), (2), and (3), in order to prove bribery involving a political contribution, the


2
  Tex. Pen. Code §34.02. Subsection (a)(4) was charged in this case.
3
  Tex. Pen. Code § 37.10(a)(5). The State did not charge Ms. Cary with a substantive count of
tampering with a government record.


Appellant's Brief--Page 14
State must show “an express agreement to take or withhold a specific exercise of

official discretion” and that such exercise of discretion “would not have been taken

or withheld but for the benefit.” Tex. Penal Code § 36.02(a)(4). Moreover, the

State is required to produce “direct evidence of the express agreement.” Id. Thus,

an implied agreement and circumstantial evidence of an express agreement are not

enough.

       Ms. Cary was only charged under sections 36.02(a)(1) and (2). Superseding

Indictment, Counts I-VIII. As set forth above, sections 36.02(a)(1) and (2) do not

apply when the alleged benefit to the public servant is political contributions.

Section 36.02(a)(1) 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." Tex. Pen. Code § 36.02(a)(1).

       Similarly, section 36.02(a)(2) 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, vote, recommendation, or other exercise of official

discretion in a judicial or administrative proceeding.” Tex. Pen. Code §

36.02(a)(2).



Appellant's Brief--Page 15
       Thus, in order to prove bribery under this subsection, the State was required

to prove each element of the charged subsection beyond a reasonable doubt and

with proof of a “benefit” that is not a political contribution. See Tex. Pen. Code §

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….”).

       The phrase "as consideration for" is particularly important in this case.

Sections 36.02(a)(1) and (2), under which Ms. Cary was charged, require proof of

consideration in the form of a decision or other exercise of discretion by a public

servant or in an administrative or judicial proceeding. This Court has held that the

"as consideration for" language refers to “a bilateral agreement--in effect an illegal

contract to exchange a benefit as consideration for the performance of an official

function." McCallum v. State, 686 S.W.2d 132, 136 (Tex. Crim. App. 1985).

       The requisite consideration need not actually be accepted by the public

official, but there must be proof 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) (holding that the bribery statute

requires proof that an offer or solicitation “was made by the accused with the

purpose to promote or facilitate the exchange of the benefit for the official

action”).



Appellant's Brief--Page 16
       The intended exchange of a benefit in return for official action is also what

distinguishes the bribery statute from the gift statute. See Tex. Penal Code § 36.09

(“Offering Gift To Public Servant”). Offering or conferring a benefit to a public

official in return for the public official’s general favor may violate the gift statute

(a Class A misdemeanor), but it is not a bribe (a second-degree felony). In

Hubbard v. State, 668 S.W.2d 419 (Tex. App—Dallas 1984, pet. granted on other

grounds), for example, this Court distinguished the bribery statute from the gift

statute by explaining that the gift statute “is designed to discourage generally

buying the favor of public officials,” whereas the bribery statute involves

“consideration [and] effecting an agreement.” Id. at 421. Accordingly, a showing

of the offering or conveying of a benefit alone is not enough to prove bribery. The

State must show that the benefit was offered or conferred “as consideration for” the

official action.

       3.     All Bribery Allegations Charge The Bribing Of Ms. Wooten As
              Consideration For Becoming A Candidate, Continuing To Run
              For Office, And Making Favorable Rulings.

       The Superseding Indictment specifies three things for which the State claims

the alleged benefits were consideration: "filing paperwork to run for Judge,

proceeding and continuing with a campaign to unseat the incumbent elected Judge

of the 380th Judicial District Court, and as Judge of the 380th Judicial District

Court presiding over and issuing favorable rulings in cases in which the Defendant



Appellant's Brief--Page 17
and Stacy Stine Cary are parties." Superseding Indictment, Counts I-VIII. As the

State explained in closing argument: “Because we’ve got three methods of proving

our case. We’ve alleged inducing her to run. They’re inducing her to continue to

run, and to rule.” TR 9 at 18. The evidence of each of these, however, is

insufficient, and none of them can support the conviction.

                                         II.

              ARGUMENTS REGARDING ISSUES PRESENTED

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.

       The State's bribery theory was an attempt to shoehorn potential election

reporting and campaign finance issues into a bribery case. It does not fit. Justice

FitzGerald’s dissent accurately described this case as “a completely misdirected

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

Dissenting Opinion at 9.

       Ms. Cary did not commit bribery or any of the other crimes charged, each of

which includes bribery as an element. In particular, the State charged Ms. Cary

with, and the jury was only charged on, bribery by something other than a

“political contribution,” which requires a substantially lower level of proof than

bribery by “political contribution.” But the State affirmatively negated an essential




Appellant's Brief--Page 18
element of the crime by proving that the alleged bribery could only have been

through “political contribution[s].”

       As explained above, the only sections of the bribery statute under which Ms.

Cary was charged, section 36.02(a)(1) and (2), 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). In this case, however, the State’s

evidence for the alleged benefit falls squarely within the phrase, “political

contribution as defined by Title 15, Election Code.” Accordingly, the evidence of

bribery is insufficient because the State failed to prove bribery beyond a reasonable

doubt by something other than a political contribution.

       Title 15 of the Election Code defines a “political contribution” as “a

campaign contribution or an officeholder contribution.” Tex. Election Code §

251.001(5). A “campaign contribution” is “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.” Tex. Election Code § 251.001(3).

A “contribution” is “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. The term includes a loan or

extension of credit, other than those expressly excluded by this subdivision….”

Tex. Election Code § 251.001(2). Neither of the express exclusions apply here.



Appellant's Brief--Page 19
In other words, a “political contribution” includes a direct or indirect transfer of

anything of value, including a loan, that is offered or given to a candidate or

political committee with the intent that it be used in connection with a campaign

for elective office.

       Since a “political contribution” is an exception to the subsections charged,

under the Texas Penal Code, the State had to negate the exception in the indictment

and prove beyond a reasonable doubt that Ms. Cary committed bribery through

something other than political contributions. See Tex. Penal Code § 2.02 (b). The

indictment only charged bribery other than by a political contribution. See

Superseding Indictment, Counts I-VII. Accordingly, the jury was not instructed

on, and did not return a verdict on, bribery under the much stricter standard

required for political contributions, and the evidence would have been insufficient

had they been so charged. The State’s proof, however, not only failed to negate

bribery by political contribution beyond a reasonable doubt, but its theory and

evidence could only potentially support bribery by political contribution.

       In this case, according to the State’s own theory, the “benefit” that Ms.

Wooten allegedly received under the bribery statute was money that was

transferred from the Ms. Cary’s accounts to Mr. Spencer and then to the Wooten

campaign for use by the campaign to pay for campaign expenses. According to the

State, this was done at times when the campaign had not otherwise raised enough



Appellant's Brief--Page 20
money to pay the bills. Thus, the State’s own theory of bribery was that the benefit

was a direct or indirect transfer of value with the intent that it be used to benefit the

campaign—a “political contribution as defined by Title 15, Election Code.”

       For example, in opening statement, the prosecutor described the State’s

theory and evidence as follows:

       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.

TR 3 at 12. Referring to the instances in the Superseding Indictment’s

bribery counts in which Ms. Cary transferred money to Mr. Spencer, the

prosecutor continued:

       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 21. The prosecutor also characterized “all this money that went to Stephen

Spencer” that “came from Stacy Cary” as “de facto loans” to the Wooten

campaign. TR 3 at 22.

       At trial, the State’s accounting and summary witness, Kyle Swihart,

combined the documentary evidence into charts to support this theory. Mr.

Swihart used State’s Exhibit 94, a summary chart, to argue that Ms. Cary

transferred money to Mr. Spencer, that Mr. Spencer used the money for Wooten

campaign expenses, and that Mr. Spencer later invoiced the campaign when the

Appellant's Brief--Page 21
campaign had raised the money to reimburse him. TR 11 at 7720 (Exh. 94); TR 6

at 212-13, TR 7 at 9-17, 19-41 (Swihart testimony explaining Exhibit 94). Mr.

Swihart testified:

       Q:      Does there appear -- can you see any explanation for how the
               expenses are being billed or given to Ms. Wooten?

       A:      It appears that he will bill for an amount that seems like she is
               able to pay out of her campaign account on that date.

TR 7 at 59.

       Mr. Swihart continued:

       Q.      So, then the benefit then would be a short-term-no-interest
               loan?

       A.      If you want to characterize it as that, I mean, that's one way to
               characterize it. All I know is when you see the money that came
               from Stacy Cary and then it was used by Stephen Spencer to
               benefit the campaign, I think that speaks for itself.

TR 7 at 224.

       In closing argument, the prosecutor reiterated that, under the bribery statute

as charged, the alleged “benefit” to the “recipient” (Ms. Wooten), was money that

went to the Wooten campaign to pay for campaign expenses. According to the

prosecutor, “But when we look at all of this money that [Stacy Cary] gave

[Stephen Spencer], it's clear -- and Stephen Spencer will even say this that without

Stacy Cary's money, Suzanne Wooten has no campaign.” TR 9 at 41-42; see also

TR 9 at 44 (“And if we look at this, we can actually see these are real expenses



Appellant's Brief--Page 22
[Mr. Spencer] used on the campaign.”). And again in closing, the prosecutor

referred to the money that Mr. Spencer spent on the campaign as a loan facilitated

by Stacy Cary’s money: “It's in effect an interest-free loan. If [Ms. Wooten] lent

the money to her campaign herself, she doesn't get it back.”

       As the foregoing demonstrates, the State’s theory and evidence was that the

benefit was a direct or indirect transfer of value with the intent that it be used to

benefit the campaign—squarely within the definition of a “political contribution as

defined by Title 15, Election Code.” Tex. Penal Code §36.02(d).

       Additionally, by failing to charge bribery by political contribution under

section 36.02(a)(4), as it should have, the State avoided the stringent proof

requirements of that subsection, which the State clearly did not meet. See

Dissenting Opinion at 11.

       The Majority Opinion in the Court of Appeals does not dispute this. It

argues, however, that the transfers exceeded the amount of allowable contributions

and were not properly reported by the Wooten campaign. See Majority Op. at 62.

Whether they were reported, not reported, not reported properly, legal, or illegal,

however, does not change the fact that they are still “political contributions as

defined by Title 15, Election Code.” See Tex. Penal Code § 36.02(d) (emphasis

added). As the Dissent correctly points out, “the definitions of ‘contribution,’

‘campaign contribution,’ and ‘political contribution’ do not incorporate these other



Appellant's Brief--Page 23
legal requirements. In other words, an illegal political contribution is still a

political contribution.” Dissenting Opinion at 12 (emphasis added). This is so for

at least two reasons.

       First, the “Definitions” in Title 15 of the Election Code are in section

251.001. That section defines “political contribution” only in terms of its nature

and purpose—a direct or indirect transfer of anything of value, including a loan,

that is offered or given to a candidate or political committee with the intent that it

be used in connection with a campaign for elective office. On the other hand, the

various rules governing permissible amounts and required reporting of a “political

contribution,” which govern whether the contribution is legal or illegal, are set out

in subsequent sections of Title 15. They do not change the definition of “political

contribution” in section 251.001.

       Second, the bribery statute itself evinces an intent to exclude all “political

contribution[s]” from sections 36.02(a) (1), (2), and (3), regardless of whether they

comply with the rules for political contributions or not. Section 36.02(d) of the

bribery statute excludes from those subsections “a political contribution as defined

by Title 15, Election Code, or an expenditure made and reported in accordance

with Chapter 305, Government Code,” which deals with lobbying. Tex. Penal

Code § 36.02(d) (emphasis added). Thus, the Legislature required lobbying

expenditures under Chapter 305 of the Government Code to comply with the rules



Appellant's Brief--Page 24
and reporting requirements of that chapter in order to be excluded, but it did not do

so for political contributions. This indicates that the Legislature intended all

“political contributions,” whether or not they were made and reported in

accordance with Title 15 of the Election Code, to be excluded from sections

36.02(a)(1), (2), and (3).

       In the appeal of Stacy Cary’s husband’s case, a different three-judge panel of

the Dallas Court of Appeals unanimously reversed all of David Cary’s convictions.

The court agreed that the State had failed to prove bribery by something other than

a political contribution beyond a reasonable doubt. David Cary was charged with

the same crimes as Stacy Cary, but his trial was separate and took place after hers.

The State relied on the same theories and generally the same evidence in David

Cary’s case. The Dallas Court of Appeals held: “We conclude that the State’s

evidence proved that the only benefits to Wooten were the transfers from Stacy

Cary to Spencer, which the State argued were payments made to fund her

campaign. As a result, the State did not meet its burden to prove bribery beyond a

reasonable doubt by something other than a political contribution.” App. A (Cary

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

       The main difference between this appeal and David Cary’s appeal is that this

“political contribution” issue was unassigned error in Ms. Cary’s appeal, whereas it

was specifically raised in David Cary’s appeal. Nevertheless, in this appeal,



Appellant's Brief--Page 25
Justice FitzGerald raised the “political contribution” issue in his dissent and would

have reversed Ms. Cary’s convictions based on it.

       This Court can and should reverse Ms. Cary’s convictions despite the fact

that this error was unassigned. The Court has repeatedly reaffirmed its

fundamental ability to review unassigned errors in the interests of justice. See,

e.g., Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) (affirming

ability to review unassigned errors); Carter v. State, 656 S.W.2d 468, passim (Tex.

Crim. App. 1983) (en banc) (same).

       The dissent in the Court of Appeals eloquently sets forth the reasons for

reviewing this error:

       A serious concern is that the bench and bar will construe the majority
       opinion as approval of a prosecution brought under sections
       36.02(a)(1) and (a)(2), notwithstanding that the foundation of the case
       is built upon political contributions. Another concern is that the State
       failed to prove a substantial and critical element of the offense. Not
       only did the State fail to prove an element, the State also proved
       appellant was not guilty of the crime charged. By disproving an
       element, that is, by proving the funds were political contributions, the
       State proved appellant did not commit and could not have committed
       the offenses charged and thus could not legally be convicted of a
       criminal offense under sections 36.02(a)(1) and (a)(2). A conviction
       for conduct that does not constitute an offense under the law is an
       injustice we may not ignore. Bribery charges, as serious as they are,
       must be properly brought and proved under the appropriate statutory
       provisions.

       The State, in seeking a conviction under sections 36.02(a)(1) and
       (a)(2), sidestepped the obligation imposed by section 36.02(a)(4) to
       produce direct evidence of an express agreement and ignored the clear
       application of section 36.02(a)(4). An affirmance gives the seal of

Appellant's Brief--Page 26
         approval to a completely misdirected and unsupported prosecution
         and conviction that are not supported by law.

Dissenting Opinion at 8-9. In addition, it would be a serious injustice if the results

in Stacy Cary’s and David Cary’s cases were different because of a fundamental

error that was unassigned in one case but raised in the other.

    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) (2).4 Here, there was insufficient evidence to support the three types of

consideration charged.

         This Court has held that the "as consideration for" language in Penal Code

section 36.02(a)(1) and (a)(2), refers to “a bilateral agreement--in effect an illegal

contract to exchange a benefit as consideration for the performance of an official

4
  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 Brief--Page 27
function." McCallum v. State, 686 S.W.2d 132, 136 (Tex. Crim. App. 1985).

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).

           The indictment charged, and the jury was instructed on, three possible types

of consideration from Ms. Wooten in return for the alleged benefit of money

transferred to her campaign: (1) becoming a candidate for judge; (2) continuing to

run for judge; and (3) making favorable rulings as a judge. Superseding

Indictment, Counts I-VII; TR 9 at 11; see Dissenting Opinion at 15-20. The

evidence of each was insufficient.

           First, becoming a candidate for judge cannot satisfy the consideration under

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

citizen to become a candidate. The relevant subsection of the bribery statute

requires a benefit "as consideration for the recipient's decision, opinion,

recommendation, vote, or other exercise of discretion as a public servant, party

official, or voter." Tex. Pen. Code § 36.02(a)(1).5 In deciding to become a


5
    Section 36.02(a)(2) does not apply to elections. It applies only to “a judicial or administrative proceeding.”


Appellant's Brief--Page 28
candidate, Ms. Wooten was not, and was not alleged to have been, a “party official

or voter.” In making a decision to run for office, she was not a “public servant,”

either.

          The Texas Penal Code defines "public servant" as including "a candidate for

nomination or election to public office." Tex. Pen. Code § 1.07(a)(41). "Public

servant," however, does not include a potential candidate or someone who has not

yet become a candidate, which is what Ms. Wooten was when she decided to

become a candidate. See Dissenting Opinion at 15.

          The Majority Opinion does not dispute this. Instead, it assumes this

argument to be correct, without deciding, and relies on the other two types of

alleged consideration. See Majority Opinion at 51-52.

          Second, there was no evidence to support the idea that a benefit was

conferred to Ms. Wooten for her to continue to be a candidate at some time after

she had become a candidate and therefore a “public official.” For example, there

was no evidence that Ms. Wooten considered dropping out of the race or that

anyone thought she needed inducement to stay in once she became a candidate.

There was evidence that Ms. Cary transferred money to Spencer who spent it on

the campaign and that Ms. Wooten did not drop out of the race, but this is not

nearly enough to show specific intent. As the Dissent explains:

          But the State did have to prove that appellant or someone in league
          with appellant conferred benefits on Wooten as consideration for—

Appellant's Brief--Page 29
       that is, in exchange for—Wooten’s staying in the race….Absent
       evidence that appellant, her husband, or Spencer conferred benefits on
       Wooten with the intent of accomplishing an exchange of benefits for
       Wooten’s decision to stay in the race, any finding that appellant, her
       husband, or Spencer had the proscribed intent is based on speculation,
       not evidence, and certainly not proof beyond a reasonable doubt.

Dissenting Opinion at 16-17 (citing McCallum v. State, 686 S.W.2d 132, 135-36

(Tex. Crim. App. 1985) (reversing a conviction in which a litigant bought

champagne for a juror because there was insufficient evidence that the benefit was

“in exchange for or in consideration of her vote as a juror”).

     Third, the evidence was insufficient to show that the transfers from Ms. Cary

to Mr. Spencer, which were used to fund the campaign, were consideration for

favorable rulings by Ms. Wooten as a judge. There was evidence that Ms. Cary’s

husband believed that the trial judge in his child custody dispute, who Ms. Wooten

ran against, was vindictive and biased against him. Indeed, there was substantial

evidence that the judge, Charles Sandoval, had a reputation for being vindictive

and biased and was considered one of the worst judges in the State. TR 4 at 95-96,

TR 6 at 35-36, TR 8 at 45, 55. There was also evidence that the opposing counsel

in Mr. Cary’s child custody case was known to be very close to Judge Sandoval

and one of his strongest supporters. TR 8 at 45. There was not, however, evidence

that Ms. Wooten had any idea that the Carys were involved with Spencer or were

transferring money to him. Thus, she would not have known for whom to rule

favorably.

Appellant's Brief--Page 30
       There was no evidence that Ms. Wooten even knew the Carys or had any

idea that either one of them was involved in paying Mr. Spencer. For example, the

State’s exhaustive review of email and phone records failed to reveal a single

communication between Ms. Wooten and either of the Carys. See TR 11 (State’s

Exhs 77-83 (Wooten, Spencer, D. Cary, S. Cary phone records); State’s Exhs 8A-

C, 11-15, 17-20, 22-23, 29, 35, 40, 72, 154-55, 160, 172, 201-203 (emails

introduced). Indeed, the evidence affirmatively demonstrates that Ms. Wooten did

not know about the Carys or what they were doing and that the Carys did not

believe she did. It showed that Mr. Spencer “partitioned off” Ms. Wooten from the

Carys. TR 6 at 43. It also showed that Mr. Spencer never mentioned the Carys to

Ms. Wooten, and that she did not know about their relationship with Mr. Spencer.

TR 6 at 39-40, 42-43. Specifically, Mr. Spencer did not tell Ms. Wooten that the

Carys were paying him money. TR 6 at 43.

       There was no contrary evidence. Even the State’s own investigator, after

being asked about whether Ms. Wooten knew anything about the Carys, did not

identify any evidence or information suggesting that she did. TR 7 at 238-39.

       There was also no evidence that either of the Carys, and particularly Ms.

Cary, erroneously believed that Ms. Wooten knew of their involvement with

Spencer. Thus, there is no evidence that the judge who was supposedly bribed for

favorable rulings knew who was doing the alleged bribing, or that the people who



Appellant's Brief--Page 31
allegedly wanted favorable rulings, in particular Ms. Cary, thought the judge knew

who they were.

         As the Dissent put it, “The evidence is equally consistent with the

proposition that appellant merely hoped or believed that Wooten would make

better rulings than Judge Sandoval had. Under McCallum,6 such evidence is not

sufficient to prove bribery.” Dissenting Opinion at 18.

         The evidence about what happened after Ms. Wooten became a judge

supports the lack of any bribery. When Judge Wooten had an opportunity to

preside over David Cary's divorce/child custody case—the matter that was of

extreme importance to him--she recused herself sua sponte because Mr. Cary’s

opposing counsel had been Judge Wooten’s campaign treasurer, which Judge

Wooten thought could have made her appear biased against Mr. Cary. TR.11 at

1734 (State Tr. Ex. 7); Tr. 11 at 2460 (State Tr. Ex. 64 at 3-4).

         Judge Wooten did not recuse herself from a lawsuit between Ms. Cary and a

lawyer for Mr. Cary’s ex-wife, and she made some discovery rulings both for and

against Ms. Cary in that case, but she did nothing that could in any way suggest

bribery. See Dissent at 17-18. Moreover, Ms. Cary voluntarily dismissed that case

before any rulings on the merits, demonstrating that the case had no importance at

all compared to Mr. Cary’s child custody case. TR 3 at 215-17.


6
    McCallum v. State, 686 S.W.2d 132, 134-35 (Tex. Crim. App. 1985).


Appellant's Brief--Page 32
        Under the Jackson7 standard of sufficiency review, "juries are not permitted

to come to conclusions based on mere speculation or factually unsupported

inferences or presumptions." Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App.

2007). This is the only way, however, that a jury could have found the requisite

consideration.

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

       In pertinent part, the bribery statute requires that the defendant "intentionally

or knowingly offers, confers, or agrees to confer...any benefit as consideration for

the recipient's decision, opinion, recommendation, vote, or other exercise of

discretion as a public servant" or “in a judicial or administrative proceeding.” Tex.

Pen. Code § 36.02(a)(1), (2). An offer to a public servant of a benefit alone might

violate the gift statute, but it is not a bribe. See Hubbard v. State, 668 S.W.2d 419,

421 (Tex. App—Dallas 1984, pet. granted on other grounds) (distinguishing

bribery and gift statutes). The plain language of the bribery statute requires that

the defendant must intend or know that the benefit is "consideration for" an action

or decision by the public servant acting as a public servant.

       The law of parties under section 7.02(a) of the Texas Penal Code does not

change the intent requirement for a substantive crime. Under section 7.02(a),

7
  Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see Winfrey v.
State, 2013 Tex. Crim. App. LEXIS 431, 10-12 (Tex. Crim. App. Feb. 27, 2013) (recognizing
Jackson).


Appellant's Brief--Page 33
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) is the criminal

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

which he had the requisite mental state."). "[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." Hill v. State, 883 S.W.2d 765, 771 (Tex. App.--Amarillo 1994, pet.

ref'd) (emphasis in original).

       In this case, it requires speculation to conclude that any bribery occurred at

all. The State’s theory is that Mr. Spencer delayed sending bills until the

campaign’s fundraising could catch up, so that the “benefit” was being able to

spend money earlier than the campaign otherwise should have. There was no

evidence, however, that Ms. Wooten knew anything about this alleged benefit

because there was no evidence that she understood that expenses allegedly should

have been recognized earlier.

       As speculative as the existence of bribery was, the idea that Ms. Cary knew

about it or had the specific intent “to promote or assist it,” as required, is even

further removed. See Tex. Penal Code § 7.02(a). Even in the light most favorable

to the State, there was no evidence that Ms. Cary knew what Mr. Spencer was



Appellant's Brief--Page 34
doing with the money she transferred beyond perhaps generally using it for the

Wooten campaign. Even assuming for the sake of argument that someone offered

Ms. Wooten a benefit in exchange for an official action (of which there is no

evidence), there is no evidence that Ms. Cary knew anything about it.

       Intent to provide benefits to a campaign or even to violate campaign finance

laws is not intent to commit bribery. As the Dissent explains, “For all the evidence

shows, appellant may have helped finance Wooten’s campaign in the mere hope of

influencing Wooten—or in the mere hope of defeating Judge Sandoval—without

knowledge of any agreement Spencer may have struck with Wooten and without

any intent to promote any such illegal agreement.” Dissenting Opinion at 20. The

Dissent correctly concluded that there was insufficient evidence of intent in this

case. See id.

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

       1.     The Evidence of Engaging In Organized Criminal Activity Was
              Insufficient Because The Evidence Of The Predicate Offenses Was
              Insufficient.

       Count I of the Superseding Indictment charges Engaging in Organized

Criminal Activity ("EOCA"), under section 71.02(a) of the Texas Penal Code. The

evidence was insufficient to sustain Ms. Cary's conviction because there was




Appellant's Brief--Page 35
insufficient evidence of the predicate offenses under the EOCA statute that are

charged in the Superseding Indictment.

       In order to commit the crime of EOCA, the Texas Penal Code requires, in

pertinent part, proof beyond a reasonable doubt that a person "establish, maintain,

or participate in a combination...to commit or conspire to commit one or more of" a

list of predicate crimes. Tex. Pen. Code § 71.02(a). The predicate crimes are an

essential element of the crime. Id.

       In this case, the State charged three possible predicate crimes: bribery,

money laundering, and tampering with a government record. Superseding

Indictment, Count I. The evidence for each is insufficient to sustain a conviction

of EOCA.

                a.   Predicate Offense Of Bribery.

       The evidence was insufficient to sustain bribery as a predicate crime for the

reasons set forth above.

                b.   Predicate Offense Of Money Laundering.
       The evidence of money laundering as a predicate offence for EOCA is

insufficient because the Superseding Indictment charges bribery as the only

predicate criminal activity for money laundering, and the evidence of bribery is

insufficient.




Appellant's Brief--Page 36
       The relevant portion of the Texas money laundering statute makes it a crime

if a person "knowingly...finances or invests or intends to finance or invest funds

that the person believes are intended to further the commission of criminal

activity." Tex. Pen. Code § 34.02(a)(4). For purposes of this case, "[c]riminal

activity" means a felony offense. Tex. Pen. Code § 34.01(1).

       The only predicate "criminal activity" alleged in the Superseding Indictment

in the EOCA count for money laundering is bribery. Superseding Indictment,

Count I. The evidence is insufficient to sustain bribery as a predicate criminal

activity for the reasons set forth above.

              c.     Predicate Offense Of Tampering With A Government
                     Record.

       The third predicate crime for EOCA is tampering with a government record

under section 37.10(a)(5) of the Texas Penal Code. That section makes it a crime

if a person "makes presents, or uses a governmental record with knowledge of its

falsity." Tex. Pen. Code §37.10(a)(5).

       The Superseding Indictment charges Ms. Cary with engaging in organized

activity based on the following allegation:

              Tampering with a Government Record, in that Suzanne H.
       Wooten did then and there, with intent to defraud and harm another,
       namely, the State of Texas, the Texas Ethics Commission, and the
       citizens of Texas, intentionally and knowingly make, present, and use
       a governmental record with knowledge of its falsity, to-wit: prepared,
       swore, and affirmed a Personal Financial Statement that was
       submitted to the Texas Ethics Commission and did not list and report

Appellant's Brief--Page 37
       all gifts and loans, as required by Texas Government Code Sec.
       572.023, omitting the Defendant, David Cary, and James Stephen
       Spencer under the heading "Gifts," and the heading "Personal Notes
       and Lease Agreements," when in truth and in fact, [Ms. Wooten] had
       received gifts and loans from the Defendant, Stacy Stine Cary, and
       James Stephen Spencer during the calendar year 2008....

Superseding Indictment, Count I.

       The tampering with a government record predicate crime was based on Ms.

Wooten’s Personal Financial Statement—a document that a candidate must file.

See Superseding Indictment, Count I. The State’s theory was that the payments

made from Stacy Cary to Spencer, some of which Spencer used to pay for

campaign expenses, should have been reported on Ms. Wooten’s Personal

Financial Statement as gifts or loans to Ms. Wooten personally. See Tex.

Government Code § 572.023(a) (describing the personal financial statement as an

accounting of the individual’s financial activity).

       To prove a violation of EOCA based on tampering with a government record

under Texas Penal Code §37.10(a)(5), the State had to prove that Ms. Cary, Ms.

Wooten, and at least one other person agreed that Ms. Wooten would fill out the

Personal Financial Statement, knowingly omit information required to be

disclosed, and intend to harm/defraud someone in doing so. See Opokuofosu v.

State, 1998 Tex. App. LEXIS 903, *16 (Tex.App. – Texarkana 1998, pet. ref’d)

(“[A] conviction under Section 37.10(a)(5), (d) requires a showing of the

knowledge of the document’s falsity and the intent to harm or defraud.”).


Appellant's Brief--Page 38
       As an initial matter, the evidence is insufficient to prove that the Personal

Financial Statement was false. It is important to note that the Superseding

Indictment concerns Ms. Wooten’s Personal Financial Statement, as opposed to a

campaign finance report. According to the Texas Government Code, the Personal

Financial Statement concerns the financial activity of the individual and his or her

family, rather than the campaign. Section 572.023(a) states: “A financial

statement must include an account of the financial activity of the individual

required by this subchapter to file a financial statement and an account of the

financial activity of the individual’s spouse and dependent children if the

individual had actual control over that activity during the preceding calendar year.”

Tex. Government Code § 572.023(a) (emphasis added). Accordingly, the

reporting of gifts or loans on the Personal Financial Statement applies to gifts or

loans to the candidate, not to the campaign. See id.

       Here, according to the State’s theory, the supposed gifts or loans were the

payments from Stacy Cary to Mr. Spencer that he used to pay for campaign

expenses. TR 9 at 44. Those were all reimbursed from campaign funds. TR 7 at

185-86. There were no transfers, payments, or loans to Ms. Wooten at all. Thus,

there were no unreported loans or gifts to Ms. Wooten, individually. The State

went to great lengths to try to show that Ms. Wooten’s campaign disclosures were




Appellant's Brief--Page 39
incorrect, but the State did not prove that her Personal Financial Statement was

false.

         Additionally, at trial, there was no evidence that Ms. Cary had even heard of

a Personal Financial Statement, much less knew the information they had to

include, or how Ms. Wooten was filling hers out. There was certainly no evidence

that Ms. Cary had any input into Ms. Wooten’s Personal Financial Statement.

         There was also no evidence that Ms. Cary knew that money spent on Ms.

Wooten’s campaign allegedly should have been characterized as a personal loan or

gift to Ms. Wooten. The State’s underlying explanation was that expenses paid by

a campaign consultant must be recognized by the campaign when the consultant

pays the expense, or when the amount of the expense is determinable, rather than

after the consultant sends the campaign a bill, and if they are not recognized at that

time, then they should be considered a loan or a gift. But there was no evidence

that Ms. Wooten, much less Ms. Cary, knew or should have known this supposed

rule.

         The Majority Opinion by the Court of Appeals in this case did not address

the sufficiency of evidence of tampering with a government record. The Dissent,

however, correctly concludes that “there is no evidence in the record that appellant

intentionally participated in any combination for the purpose of having Wooten




Appellant's Brief--Page 40
commit the offense of tampering with a government record.” Dissenting Opinion

at 21.

         In David Cary’s appeal, the panel of the Dallas Court of Appeals

unanimously agreed that the evidence of tampering with a government record was

insufficient on a materially identical factual record. The court held:

         We conclude that the State offered no evidence that Wooten’s
         Personal Financial Statement omitted alleged loans and gifts from
         [David Cary], Stacy Cary, or Spencer because there is no evidence of
         loans or gifts from them to Wooten individually. We further conclude
         that the State offered no evidence of appellant’s knowledge that
         Wooten allegedly falsified her Personal Financial Statement.

App. A (Cary v. State, No. 05-13-01010, slip op. at 15-16 (Tex. App.—Dallas,

March 25, 2015).

         There was insufficient evidence to support tampering with a government

record.

         2.    The Evidence Of Money Laundering Was Insufficient.

         Count VIII of the Superseding Indictment charges money laundering in

violation of section 34.02(a)(4) of the Texas Penal Code. Superseding Indictment,

Count VIII. As set forth above, money laundering requires a predicate crime, and

bribery was the only predicate crime that Count VIII charges. For the reasons set

forth above, there is insufficient evidence of bribery. Therefore, the evidence of

money laundering is insufficient.




Appellant's Brief--Page 41
                                  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 May 15, 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 Brief--Page 42
                         CERTIFICATE OF COMPLIANCE

       Pursuant to Rule 9(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(i)(1), is 9,788. 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 Brief--Page 43
                  APPENDIX A




Appellant's Brief--Page 44
REVERSE and ACQUIT; and Opinion Filed March 25, 2015.




                                         S   In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                      No. 05-13-01010-CR

                                 DAVID CARY, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 366th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 366-81636-2011

                                          OPINION
                        Before Justices Bridges, Lang-Miers, and Myers
                                Opinion by Justice Lang-Miers
        Appellant David Cary was charged with eight felonies—six counts of bribery, one count

of money laundering, and one count of engaging in organized criminal activity. After finding

appellant guilty as charged, the jury assessed concurrent sentences of fourteen years in prison for

each offense. On appeal appellant argues that (1) the evidence is legally insufficient to support

his convictions, (2) he received ineffective assistance of counsel, and (3) the bribery statute is

unconstitutional.   We conclude that the State’s evidence is legally insufficient to support

appellant’s convictions.    We reverse the trial court’s judgments and render judgments of

acquittal.

                                         BACKGROUND

        Appellant’s convictions arise from the same evidence presented by the State in the

previous trial of his wife, Stacy Stine Cary. We described all of the evidence at great length in
our opinion in Stacy Cary’s appeal. See Cary v. State, No. 05-12-01421-CR, 2014 WL 4261233

(Tex. App.—Dallas Aug. 28, 2014, pet. granted) (not designated for publication). Because the

parties agree that the records in both cases are nearly identical, 1 we do not re-describe all of the

evidence again here. Instead, we discuss pertinent evidence below as it pertains to the issues we

must decide in this appeal.

                                                          ISSUES ON APPEAL

           Appellant raises six issues on appeal (several of which are different from the issues raised

in Stacy Cary’s appeal).                   In his first issue, appellant argues that the evidence is legally

insufficient to support his bribery convictions because (1) the State’s evidence proved an

exception to the bribery statute, (2) there was no evidence of consideration, and (3) there was no

evidence of intent. In his second issue, appellant argues that the evidence is legally insufficient

to support his conviction for engaging in organized criminal activity because there was

insufficient evidence of the alternative predicate offenses of bribery, money laundering, and

tampering with a governmental record. In his third issue, appellant argues that the evidence is

legally insufficient to support his conviction for money laundering because there was insufficient


     1
       According to the State, the records are “materially identical.” According to appellant, the only difference is that the following additional
evidence was presented in appellant’s case only:
                •     The jury heard evidence that the judge who was appointed to preside over appellant’s modification proceeding
                      after Suzanne Wooten recused herself made decisions in favor of appellant, including ordering that the children
                      should live with appellant.

                •     James Stephen Spencer explained and put into context the email exchange between him and appellant dated
                      June 9, 2009, concerning the Supreme Court’s June 8, 2009 decision in Caperton v. A.T. Massey Coal Co., 556
                      U.S. 868 (2009). Spencer testified that the reason he was interested in the Caperton decision was because of his
                      ongoing concerns about the Family Law Foundation’s potential influence over a judge in Tarrant County.

                •     The jury heard evidence that Wooten planned to voluntarily recuse herself in cases in which a party was
                      represented by someone from her former law firm for approximately nine months after she separated from her
                      firm, and the motion to recuse Wooten in Stacy Cary’s case against Jennifer Cary was filed around the time her
                      self-imposed decision to recuse was supposed to expire.

                •     Rick Robertson testified that while Wooten was on the bench he “found her to be a judge to follow the law,”
                      and there was nothing about her rulings that would suggest that she had been bribed.

                •     Two witnesses for the State testified that Wooten was ethical and had a strong reputation for ethics.



                                                                      –2–
evidence of the sole predicate offense of bribery. In his fourth issue, appellant argues that he

received ineffective assistance of counsel because his counsel admittedly failed to timely amend

appellant’s sentencing election so that punishment could be assessed by the trial court, which

caused appellant to receive a longer sentence. In his fifth issue, appellant argues that the bribery

statute is unconstitutional as applied because it impermissibly burdened his First Amendment

right to exercise political speech. In his sixth issue, appellant argues that the bribery statute is

facially unconstitutional because it is vague and overbroad. We only address appellant’s first

three issues because our resolution of those issues is dispositive of this appeal.

                                      STANDARD OF REVIEW

       In evaluating the legal sufficiency of the evidence to support a criminal conviction,

“reviewing courts are obliged to view all of the evidence in the light most favorable to the jury’s

verdict, in deference to the jury’s institutional prerogative to resolve all contested issues of fact

and credibility.” Delay v. State, 443 S.W.3d 909, 912 (Tex. Crim. App. 2014). But sometimes,

as in this case, “appellate review of legal sufficiency involves simply construing the reach of the

applicable penal provision in order to decide whether the evidence, even when viewed in the

light most favorable to conviction, actually establishes a violation of the law.” Id.

                                              BRIBERY

       Applicable Law

       The bribery statute at issue in this case provides as follows:

       (a) 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:

           (1) any benefit as consideration for the recipient’s decision, opinion,
           recommendation, vote, or other exercise of discretion as a public servant,
           party official, or voter;

           (2) any benefit as consideration for the recipient’s decision, vote,
           recommendation, or other exercise of official discretion in a judicial or
           administrative proceeding;
                                           –3–
          (3) any benefit as consideration for a violation of a duty imposed by law on a
          public servant or party official; or

          (4) any benefit that is a political contribution as defined by Title 15, Election
          Code, or that is an expenditure made and reported in accordance with Chapter
          305, Government Code, if the benefit was offered, conferred, solicited,
          accepted, or agreed to pursuant to an express agreement to take or withhold a
          specific exercise of official discretion if such exercise of official discretion
          would not have been taken or withheld but for the benefit; notwithstanding
          any rule of evidence or jury instruction allowing factual inferences in the
          absence of certain evidence, direct evidence of the express agreement shall be
          required in any prosecution under this subdivision.

       (b) It is no defense to prosecution under this section that a person whom the actor
       sought to influence was not qualified to act in the desired way whether because he
       had not yet assumed office or he lacked jurisdiction or for any other reason.

       (c) It is no defense to prosecution under this section that the benefit is not offered
       or conferred or that the benefit is not solicited or accepted until after:

          (1) the decision, opinion, recommendation, vote, or other exercise of
          discretion has occurred; or

          (2) the public servant ceases to be a public servant.

       (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.

       (e) An offense under this section is a felony of the second degree.

TEX. PENAL CODE ANN. § 36.02 (West 2011) (internal footnote omitted).

       The Indictment

       The indictment charged appellant with bribery in counts two through seven in connection

with six separate payments from Stacy Cary to James Stephen Spencer, Suzanne Wooten’s

campaign manager. For example, count two alleged that appellant,

       on or about January 4, 2008, . . . did then and there intentionally and knowingly
       offer, confer, and agree to confer a benefit, 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, to-wit: $50,000 to
       Suzanne H. Wooten, a public servant, to-wit: a candidate for the office of Judge
       of the 380th Judicial District Court and presiding Judge of the 380th Judicial
       District Court, as consideration for Suzanne H. Wooten’s decision, opinion,
                                                –4–
          recommendation, vote, or other exercise of discretion as a public servant, and as
          consideration for Suzanne H. Wooten’s decision, vote, recommendation, and
          other exercise of official discretion in a judicial proceeding, to wit: filing
          paperwork to run for Judge, proceeding and continuing with a campaign to unseat
          the incumbent elected Judge of the 380th Judicial District Court, and as Judge of
          the 380th Judicial District Court presiding over and issuing favorable rulings in
          cases in which [appellant] and Stacy Stine Cary are parties[.]

The allegations in the other five bribery counts differed only with respect to the date and amount

of the transfer. The payments totaled $150,000 and occurred between January 4 and March 14,

2008. The jury charge tracked the indictment and instructed the jury that appellant could be

found guilty as a principal or as a party to the offenses of bribery.

          Analysis

          Appellant was charged with bribery under penal code sections 36.02(a)(1) and

36.02(a)(2). As a result, the exception for political contributions found in section 36.02(d)

applies, and under section 2.02(b) of the penal code, 2 it was the State’s burden to prove beyond a

reasonable doubt that the benefits to Wooten, in this case the payments to Spencer, were

something other than political contributions. In his first issue, appellant argues that the evidence

is legally insufficient to support his bribery convictions because the State failed to satisfy that

burden. We agree.

          We begin by looking to the relevant definitions in Title 15 of the Texas Election Code.

Shown in context, the relevant provisions of the election code provide:

          (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. The
          term includes a loan or extension of credit, other than those expressly excluded by
          this subdivision, and a guarantee of a loan or extension of credit, including a loan
          described by this subdivision. The term does not include:



     2
       Section 2.02(b) of the penal code states, “The prosecuting attorney must negate the existence of an 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.”
TEX. PENAL CODE ANN. § 2.02(b) (West 2011).



                                                                    –5–
           (A) a loan made in the due course of business by a corporation that is legally
           engaged in the business of lending money and that has conducted the business
           continuously for more than one year before the loan is made; or

           (B) an expenditure required to be reported under Section 305.006(b),
           Government Code.

       (3) “Campaign contribution” means 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. Whether a contribution is
       made before, during, or after an election does not affect its status as a campaign
       contribution.

       (4) “Officeholder contribution” means a contribution to an officeholder or
       political committee that is offered or given with the intent that it be used to defray
       expenses that:

           (A) are incurred by the officeholder in performing a duty or engaging in an
           activity in connection with the office; and

           (B) are not reimbursable with public money.

       (5) “Political contribution” means a campaign contribution or an officeholder
       contribution.

       (6) “Expenditure” means a payment of money or any other thing of value and
       includes an agreement made or other obligation incurred, whether legally
       enforceable or not, to make a payment.

       (7) “Campaign expenditure” means an expenditure made by any person in
       connection with a campaign for an elective office or on a measure. Whether an
       expenditure is made before, during, or after an election does not affect its status as
       a campaign expenditure.

TEX. ELEC. CODE ANN. § 251.001(2)–(7) (West 2010) (emphasis added).

       Boiled down, the State’s theory in this case was that the Carys secretly funded Wooten’s

campaign for elective office. And the only evidence of a benefit to Wooten in this case was that

Stacy Cary gave money to Spencer and Spencer used it in connection with Wooten’s campaign.

During opening statements, for example, the State told the jury,

       Without Stacy Cary’s money that was given to Stephen Spencer, Suzanne Wooten
       does not win. Suzanne Wooten spends money on signs. She spends money on
       radio ads. She spends money on print ads. She spends money on direct mailers.
       She hires a consultant. None of these things are possible without the money being
       given to her.

                                                –6–
       During its case in chief, the State proved its theory through testimony and documentary

evidence.   During Spencer’s direct examination by the State, for example, he repeatedly

acknowledged that he used the money he received from Stacy Cary to pay for Wooten’s

campaign expenditures.      Spencer’s testimony was consistent with State’s Exhibit 94, a

compendium exhibit created by the State’s fraud examiner, Kyle Swihart. Exhibit 94 shows the

timing of the payments from Stacy Cary to Spencer, and which campaign expenses were paid

using the money. Swihart testified at length about the evidence summarized in State’s Exhibit

94. For example, with respect to the transfer of $50,000 from Stacy Cary to Spencer on January

4, Swihart explained that it was immediately used to pay Wooten’s campaign consultant, Hank

Clements:

       Q.      All right. We’ve got these two payments to Hank Clements totaling
               $15,000, which happen to be just a few days after this $50,000 comes in.
               Absent this money from Stacy Cary, does Stephen Spencer have the
               money to pay for Hank Clements?

       A.      No.

       Q.      And absent this money from Stacy Cary, does Suzanne Wooten’s
               campaign have the money to pay for Hank Clements?

       A.      No.

With respect to the transfer of $25,000 from Stacy Cary to Spencer on February 4, Swihart

testified that it was used to pay for additional campaign expenditures:

       Q.      Okay. And then there’s another -- appears to be another transfer from
               Stacy Cary?

       A.      Yes, of $25,000 that posted to his account on February 4th of 2008.

       Q.      All right. Now, after that post[ed] to his account, does he cut several more
               cashier’s checks?

       A.      Yes, he does.

       Q.      Can you tell us what those cashier’s checks are?

       A.      It would be the Plano Profile cashier’s check on February 5th.

                                               –7–
       Q.      Okay.

       A.      The Cartwright Signs check on February 5th. Actually both of those
               together there for $3877 and $4036. And then the last Cartwright
               expenditure on February 8th of 2008.

       Q.      All right. So, absent this $25,000 from Stacy Cary, does Stephen Spencer
               have the funds to get these cashier’s checks?

       A.      No, he does not.

Likewise, with respect to the transfer of $25,000 from Stacy Cary to Spencer on February 15,

Swihart testified that it was used to pay campaign expenditures:

       Q.      Okay. Now, the next thing I’d like to ask you about is this next transfer
               from Stacy Cary.

       A.      The one on February 15th?

       Q.      Yes, sir. Can you tell me about that?

       A.      That is another transfer that occurred. I believe that one may have been via
               check. And that occurred on February 15th.

       Q.      Okay. And so his balance after that transfer of $25,000 is how much?

       A.      It’s $25,000.92.

       Q.      And so that occurs on the 15th. And on the 20th, does he draw two
               checks?

       A.      Yes, he does.

       Q.      Okay. And what are those checks for?

       A.      Those are for radio ads for KVIL and KRLD.

       Q.      And absent this $25,000 that he receives from Stacy Cary, does he have
               the funds to pay for these advertisements?

       A.      No, he does not.

       Q.      Okay. And absent this $25,000 from Stacy Cary, does the Suzanne
               Wooten Campaign account have the funds to pay for these
               advertisements?

       A.      No.



                                               –8–
       Finally, during closing argument, the State told the jury that Stacy Cary’s money was not

a political contribution because it “never goes into [Wooten’s] account. It’s never reported.”

       The State argues on appeal that the payments to Spencer for Wooten’s benefit should not

be considered political contributions because the evidence demonstrates that appellant

“deliberately engaged in several deceptive practices to prevent the funds from being traced to

him.” We must confine our analysis, however, to the definitions found in the election code. And

under the definition of “political contribution” in the election code, no exception is made for

covert indirect transfers of money.

       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.

Instead, if Stacy Cary transferred money to Spencer with the intent that it be used in connection

with Wooten’s campaign, then, by definition, the money is a political contribution.

       The State also argues that a conclusion that the benefits to Wooten were political

contributions would lead to an absurd result because it would mean that anyone could covertly

and indirectly fund a judge’s campaign in exchange for the candidate’s agreement to rule in his

favor, as long as there is no evidence of an express agreement. We disagree. We are not

sanctioning the conduct in this case, nor are we concluding that it was lawful. Instead, we

conclude that the State did not satisfy its burden under the specific language in section 36.02 of

the penal code and Title 15 of the election code. See TEX. PENAL CODE ANN. § 36.02; TEX.

ELEC. CODE ANN. § 251.001(2)–(7).

       The State also argues that a rational jury could have found that appellant did not intend

for the transfers to Spencer to be used in connection with Wooten’s campaign, and instead

intended that the payments to Spencer “be used to obtain, by any means necessary, (1) a person

                                               –9–
who would challenge the incumbent judge of the 380th Judicial District Court, despite the odds

stacked against succeeding in such a challenge, and/or (2) a judge who would rule favorably in

Appellant’s custody and visitation proceedings, and/or rule in favor of his wife Stacy.” The

State contends that because of a difference between the amount Spencer spent on Wooten’s

campaign and the amount she reimbursed him, the jury could have inferred “that Appellant had

no specific intent that every payment made by his wife be used specifically in connection with

the campaign.” But the State charged appellant with bribing Wooten, the State’s theory was that

the Carys funded Wooten’s campaign, and the jury was asked whether the payments were made

to Wooten as consideration for various actions on her part, including issuing rulings favorable to

the Carys.

          We recognize that the majority did not reach this conclusion in Cary. See 2014 WL

4261233, at *33–34. In that appeal, however, Stacy Cary did not raise the same issues as those

presented here. For example, Stacy Cary did not raise the issue of whether the State failed to

prove that the transfers from her to Spencer were not political contributions. Instead, Stacy Cary

affirmatively argued in her appeal that the transfers to Spencer were compensation for services

rendered under a consulting agreement. And the majority’s discussion of unassigned error raised

by the dissent was obiter dictum and not material to the majority’s resolution of Stacy Cary’s

appeal.

          We conclude that the State’s evidence proved that the only benefits to Wooten were the

transfers from Stacy Cary to Spencer, which the State argued were payments made to fund her

campaign. As a result, the State did not meet its burden to prove bribery beyond a reasonable




                                               –10–
doubt by something other than a political contribution. 3 We resolve appellant’s first issue in his

favor, reverse the convictions for bribery, and render judgments of acquittal.

                                                        MONEY LAUNDERING

           A person commits the offense of money laundering if he “knowingly finances or invests

or intends to finance or invest funds that the person believes are intended to further the

commission of criminal activity.” TEX. PENAL CODE ANN. § 34.02(a)(4) (West 2011). In this

case the State alleged that appellant,

           on or about and between January 4, 2008 and March 14, 2008, . . . did then and
           there, pursuant to one scheme and continuing course of conduct, knowingly
           finance, invest, and intend to finance and invest funds that [appellant] believed
           were intended to further the commission of criminal activity, to-wit: Bribery, and
           the aggregate value of said proceeds was $100,000 or more but less than
           $200,000[.]

           In his third issue, appellant argues that the evidence is legally insufficient to support his

conviction for money laundering because there is “insufficient evidence of the only predicate

offense—bribery.” The State was not required to prove bribery in order to convict appellant of

money laundering. Instead, the State was only required to prove that appellant believed he was

furthering the commission of bribery. But in this case, the State’s only evidence was that

appellant believed Stacy Cary was making what constitutes political contributions under the

election code. And the political contributions Stacy Cary made are subject to the exception

under the bribery statute. As a result, there is no evidence that appellant believed he was

furthering the commission of bribery. We resolve appellant’s third issue in his favor, reverse the

conviction for money laundering, and render a judgment of acquittal.




     3
        Because we conclude that the exception to the bribery statute was not negated, we do not need to address appellant’s alternative arguments
that the evidence is legally insufficient to support his bribery convictions because there is no evidence of consideration or intent.



                                                                     –11–
                        ENGAGING IN ORGANIZED CRIMINAL ACTIVITY

       A person commits the offense of engaging in organized criminal activity “if, with the

intent to establish, maintain, or participate in a combination or in the profits of a combination,

. . . the person commits or conspires to commit one or more [enumerated offenses].” See TEX.

PENAL CODE ANN. § 71.02(a) (West Supp. 2014). In this case the State alleged that appellant

engaged in organized criminal activity by committing or conspiring to commit three predicate

offenses: bribery, money laundering, and tampering with a governmental record. See id. §§ (9)

(bribery), (10) (money laundering), (13) (tampering with a governmental record).

       We have concluded that the evidence is insufficient to support the convictions for bribery

and money laundering; consequently, those predicate offenses will not support the conviction for

engaging in organized criminal activity.      The sole remaining alleged predicate offense is

tampering with a governmental record.

       The Indictment

       In the indictment the State alleged that appellant engaged in organized criminal activity

by tampering with a governmental record as follows:

       on or about and between September 19, 2007 and October 20, 2009, . . . with
       intent to establish, maintain, and participate in a combination and in the profits of
       a combination of three or more persons, namely, [appellant], Suzanne H. Wooten,
       Stacy Stine Cary, and James Stephen Spencer, did commit and conspire to
       commit the following offenses:

                                               ...

       Tampering with a Government Record, in that Suzanne H. Wooten did then
       and there, with the intent to defraud and harm another, namely, the State of Texas,
       the Texas Ethics Commission, and the citizens of Texas, intentionally and
       knowingly make, present, and use a governmental record with knowledge of its
       falsity, to-wit: prepared, swore, and affirmed a Personal Financial Statement that
       was submitted to the Texas Ethics Commission and did not list and report all gifts
       and loans, as required by Texas Government Code Sec. 572.023, omitting
       [appellant], Stacy Stine Cary, and James Stephen Spencer under the heading
       “Gifts,” and the heading “Personal Notes and Lease Agreements,” when in truth


                                              –12–
       and fact [Wooten] had received gifts and loans from [appellant], Stacy Stine Cary,
       and James Stephen Spencer during the calendar year 2008;

       and in furtherance of the conspiracy to commit said offenses [appellant]
       performed one or more overt acts, to-wit: communicated with other members of
       the combination, and organized, planned, and supervised the other members of the
       combination . . . .

See id. §§ 37.10(a)(5), 71.02(a)(13).

       The governmental record at issue here is Wooten’s Personal Financial Statement for

calendar year 2008 that she filed with the Texas Ethics Commission as part of her judicial

campaign. The State argued that appellant, Wooten, and at least one other person committed and

conspired to commit tampering with a governmental record, specifically, falsifying Wooten’s

Personal Financial Statement by omitting loans and gifts she received from appellant, Stacy

Cary, and Spencer.

       Applicable Law

       The government code requires a candidate or officeholder to file a Personal Financial

Statement and, in that report, to disclose personal loans over $1,000 and personal gifts over $250

made or given to the reporting individual, the reporting individual’s spouse, or the reporting

individual’s dependent child. TEX. GOV’T CODE ANN. § 572.023(a)(5), (7) (West 2012). As

charged in this case, a person commits the offense of tampering with a governmental record if

the person makes, presents, or uses a Personal Financial Statement with knowledge of its falsity

and with intent to defraud or harm another. See TEX. PENAL CODE ANN. § 37.10(a)(5); State v.

Vasilas, 198 S.W.3d 480, 484 (Tex. App.—Dallas 2006), aff’d, 253 S.W.3d 268 (Tex. Crim.

App. 2008).

       “Gift,” “personal loan,” and “personal note” are not defined in the statute. The ordinary

meaning of “gift” is a voluntary transfer of property to another made gratuitously and without

consideration.   Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007, pet.


                                              –13–
denied). The elements of a gift are (1) the intent to make a gift; (2) delivery of the property; and

(3) acceptance of the property. Id. The ordinary meaning of “loan” is “money lent at interest.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1326 (1981).                   And “note” means “a

written or printed paper acknowledging a debt and promising payment.” Id. at 1544. The State’s

campaign finance expert, Ian Steusloff, testified that he understood “personal note” to include a

“document that states that you agree to pay a specific amount to another person[.]”

       Analysis

       In his second issue, appellant argues that there is no evidence of unreported loans or gifts

to Wooten individually; there is no evidence Wooten’s Personal Financial Statement was false;

and there is no evidence appellant knew about the existence or contents of Wooten’s Personal

Financial Statement. We agree.

       All of the State’s evidence, indeed its entire theory, was that the money Stacy Cary

transferred to Spencer was used to benefit Wooten’s judicial campaign. But the State’s ethics

expert testified that the Personal Financial Statement applied only to loans and gifts to the

candidate, not to the campaign. And the State did not present any evidence that appellant, Stacy

Cary, or Spencer directly or indirectly gave money to Wooten individually. In fact, Swihart, the

State’s fraud expert who investigated this case for four years, agreed that “there’s not a single

payment that went from either Dave or Stacy Cary to Suzanne Wooten” and “there’s not even a

situation where there’s been a payment from either [of] the Carys to a third party who then

turned around and forwarded that money to Judge Wooten[.]” Steusloff testified that he was

sitting in the courtroom for a majority of the witnesses’ testimony and he had “not heard of any

gifts.” And he agreed that if there was no evidence Wooten received a gift, then checking “Not

Applicable” under “Gifts” on the Personal Financial Statement would be correct.




                                               –14–
       Having reviewed the entire record, we conclude that the State did not offer any evidence

that appellant, Stacy Cary, or Spencer intended to make a gift of money to Wooten individually,

that appellant, Stacy Cary, or Spencer delivered a gift of money to Wooten, or that Wooten

accepted a gift of money from appellant, Stacy Cary, or Spencer.

       We also conclude that the State did not offer any evidence that appellant, Stacy Cary, or

Spencer loaned Wooten money. Wooten’s Personal Financial Statement disclosed a loan to

Wooten individually from Bank of America, and Swihart testified that “[a]s far as [he knew]”

that was the only loan for Wooten’s campaign. The State offered no evidence that Wooten

signed a personal note in favor of appellant, Stacy Cary, or Spencer. And Steusloff testified that

he believed to constitute a personal note “as a minimum, there would need to be a document that

said ‘I, Suzanne Wooten, promise to pay.’” The State offered no such document. We conclude

that the State offered no evidence of a personal note or personal loan to Wooten individually.

       Additionally, the State did not offer any evidence that appellant knew about the Personal

Financial Statement, knew Wooten had to file such a statement, knew what the statement was

required to include, or knew what Wooten disclosed when she filed it. The State concedes that

there is “no direct evidence of [a]ppellant’s knowledge of Wooten’s campaign records or record

filing requirements,” but it argues that the jury could have inferred based on appellant’s “blatant

disregard for complying with any [reporting] restrictions [that] [a]ppellant must have intended

for Wooten to omit him, his wife, and/or Spencer from her Personal Financial Statement as the

bulk of her campaign resources.” Based on this record, any such inference amounts to mere

surmise or suspicion.

       We conclude that the State offered no evidence that Wooten’s Personal Financial

Statement omitted alleged loans and gifts from appellant, Stacy Cary, or Spencer because there is

no evidence of loans or gifts from them to Wooten individually. We further conclude that the

                                              –15–
State offered no evidence of appellant’s knowledge that Wooten allegedly falsified her Personal

Financial Statement. Because there is no evidence to support any of the alleged predicate

offenses, the conviction for engaging in organized criminal activity cannot stand. We resolve

appellant’s second issue in his favor, reverse the conviction for engaging in organized criminal

activity, and render a judgment of acquittal.

                                           CONCLUSION

       We conclude that the evidence is legally insufficient to sustain appellant’s convictions for

bribery, money laundering, and engaging in organized criminal activity. We reverse appellant’s

convictions and render judgments of acquittal. As a result, we do not need to address appellant’s

remaining arguments.




                                                  /Elizabeth Lang-Miers/
                                                  ELIZABETH LANG-MIERS
                                                  JUSTICE



Publish
TEX. R. APP. P. 47.2(b)

131010F.P05




                                                –16–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DAVID CARY, Appellant                               On Appeal from the 366th Judicial District
                                                    Court, Collin County, Texas
No. 05-13-01010-CR         V.                       Trial Court Cause No. 366-81636-2011.
                                                    Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee                        Justices Bridges and Myers participating.

    Based on the Court’s opinion of this date, the judgments of the trial court are
REVERSED and the appellant is hereby ACQUITTED.


Judgment entered this 25th day of March, 2015.




                                             –17–
