Cary, David Frederick

• Court: Court of Appeals of Texas
• Decided: April 21, 2015
• Docket: PD-0445-15
• Status: Published

Opinion

PD-0445-15 PD-0445-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS No. PD-_______ Transmitted 4/21/2015 11:12:35 AM Accepted 4/21/2015 3:06:59 PM ______________________________ ABEL ACOSTA CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ______________________________

DAVID FREDERICK CARY, Appellant/Respondent, April 21, 2015 v.

THE STATE OF TEXAS, Appellee/Petitioner. ______________________________

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

STATE’S PETITION FOR DISCRETIONARY REVIEW ______________________________

KEN PAXTON *JOSEPH P. CORCORAN Attorney General of Texas Assistant Attorney General Supervising Attorney CHARLES E. ROY for Non-Capital Appeals First Assistant Attorney General Criminal Appeals Division State Bar No. 00793549 ADRIENNE McFARLAND Joseph.Corcoran@TexasAttorneyGeneral.gov Deputy Attorney General for Criminal Justice P. O. Box 12548, Capitol Station Austin, Texas 78711 EDWARD L. MARSHALL Telephone: (512) 936-1400 Chief, Criminal Appeals Division Facsimile: (512) 936-1280

*Lead Appellate Counsel _____________________________ ATTORNEYS FOR THE STATE IDENTITY OF PARTIES AND COUNSEL

To assist this Honorable Court in determining disqualification and

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

and their attorneys in accordance with Texas Rule of Appellate Procedure

68.4(a).

1. Counsel for the State JOSEPH P. CORCORAN (This proceeding) Assistant Attorney General Texas Bar Number 00793549

CARA HANNA (Dallas Court of Appeals) Assistant Attorney General Texas Bar Number 24055622

GRETCHEN MERENDA (Dallas Court of Appeals) Assistant Attorney General Texas Bar Number 24010233

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

CATHY E. CHOPIN (Trial court) Assistant Attorney General Texas Bar Number 24055307 HARRY WHITE (Trial court) (former) Assistant Attorney General Texas Bar Number 24013740

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

2. Appellant DAVID CARY

3. Counsel for Appellant on appeal JOHN M. HELMS Texas Bar Number 09401001 Law Offices of John M. Helms 2600 State Street Dallas, TX 75204

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

5. Trial Court Judge THE HONORABLE JOHN R. NELMS

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

TABLE OF CONTENTS ......................................................................... iv

INDEX OF AUTHORITIES ................................................................... vii

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

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

STATEMENT OF PROCEDURAL HISTORY ........................................ 2

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

I. Background ...................................................................................... 2

II. Legal Rational of the Court of Appeals ........................................... 4

GROUND FOR REVIEW ......................................................................... 6

Does an appellate court give proper deference to a jury’s finding that the State proved—beyond a reasonable doubt—that the predicate bribery payments were not intended to be “political contributions,” when that court focuses on only the evidence tending to negate the finding, and fails to consider the totality of the evidence in support of the finding, including the rational inferences therefrom?

ARGUMENT ............................................................................................. 6

I. The Court Of Appeals’ Decision Conflicts With Another Panel Decision From The Same Court, On The Same Legal Issue ........... 6

iv TABLE OF CONTENTS, Continued

II. The Court of Appeals Resolved an Important Question of Constitutional Law In a Way That Appears to Conflict With the Applicable Decisions of Both This Court and the Supreme Court of the United States ............................................................... 7

III. Fairness and Justice Support this PDR ........................................ 14

PRAYER FOR RELIEF .......................................................................... 15

CERTIFICATE OF SERVICE ................................................................ 16

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF APPELLATE PROCEDURE 9.4 ............................................................ 17

v INDEX OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ..................... 8, 9

Cary v. State, No. 05-12-01421-CR, 2014 WL 4261233 (Tex. App.—Dallas

Aug. 28, 2014) ............................................................................... passim

Cary v. State, No. 05-13-01010-CR, 2015 WL 1346126 (Tex. App.—Dallas

Mar. 25, 2015)............................................................................... passim

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ....................... 8

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) ......................... 9

Delay v. State, 443 S.W.3d 909 (Tex. Crim. App. 2014) ........................... 9

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011) ............................ 8

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) ........................... 8

Jackson v. Virginia, 443 U.S. 307 (1979) .............................................. 2, 8

Martinez v. State, 696 S.W.2d 930 (Tex. App.—Austin 1985) ............... 13

McCallum v. State, 686 S.W.2d 132 (Tex. Crim. App. 1985) ................. 13

Mustard v. State, 711 S.W.2d 71 (Tex. App.—Dallas 1986) ............ 10, 13

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007).................. 8, 9

vi Statutes

Tex. Penal Code § 2.02(b) .......................................................................... 4

Texas Penal Code § 36.02(d) ..................................................................... 4

Other Authorities

Model Penal Code § 240.1 ....................................................................... 12

vii STATEMENT REGARDING ORAL ARGUMENT

The State respectfully submits that the primary legal questions

raised in this appeal are sufficiently complicated that oral argument

would benefit the Court. Moreover, the Court recently granted a petition

for discretionary review (PDR)—and oral argument—in an appeal

involving Appellant’s spouse, who was effectively Appellant’s co-

conspirator, which is substantively identical to the present appeal. See

Stacy Stine Cary v. State, PD-1341-14.

STATEMENT OF THE CASE

This appeal arises from a criminal conviction in the 366th Judicial

District Court of Collin County, Texas. Following a jury trial, Appellant,

David Cary, was convicted of one count of engaging in organized criminal

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

under section 36.02 of the Penal Code, and one count of money laundering

under section 34.02 of the Penal Code. 2 CR 654–58, 681–96. 1 Appellant

1 “CR” refer to the Clerk’s Record of papers filed in the trial court, preceded by the volume number and followed by the page number(s). “RR” refers to the Reporter’s Record of the transcribed trial proceedings which occurred April 16, 2013 through April 26, 2013, preceded by the volume number and followed by the page number(s). 1 was sentenced by the jury in each count to fourteen years’ imprisonment,

all sentences to run concurrently. 10 RR 113–16; 1 CR 666–76.

STATEMENT OF PROCEDURAL HISTORY

On March 25, 2015, after finding the evidence to be legally

insufficient under the familiar standard set out in Jackson v. Virginia,2

the court of appeals reversed the trial court’s judgment of conviction and

sentence for all counts, and entered a judgment of acquittal. Cary v.

State, No. 05-13-01010-CR, 2015 WL 1346126 (Tex. App.—Dallas Mar.

25, 2015) (“David Cary”). The State did not seek rehearing.

STATEMENT OF FACTS

I. Background

The reporter’s record in this appeal is lengthy, and includes the

testimony of numerous witnesses at trial, as well as voluminous

documents admitted in evidence. The ultimate resolution of this appeal—

a challenge to the legal sufficiency of the evidence to support Appellant’s

conviction—will necessarily involve a discussion of the testimony and key

exhibits admitted at trial. Such a discussion is, however, far beyond the

2 443 U.S. 307 (1979). 2 limited scope and purpose of a PDR. Moreover, as the State will establish

below, the decision to grant PDR can be made without an in depth review

of the trial record.

In sum, 3 the evidence establishes that Appellant had ongoing

litigation before Judge Sandoval of the 380th District Court in Collin

County, and was dissatisfied by several adverse rulings in that litigation.

Appellant developed a scheme to identify and to bribe a judicial

candidate—Suzanne Wooten—who would then issue favorable rulings to

Appellant in the pending litigation. To do this, Appellant caused

approximately $150,000 to be paid to an intermediary—James Spencer—

to offer, confer, or agree to confer a benefit to Suzanne Wooten, as

consideration for Wooten’s act of proceeding or continuing to run for office

as a state district judge, or for presiding over and issuing favorable

rulings to Appellant in cases before her as judge. To disguise these

3 Unlike the Stacy Cary opinion, which devoted approximately twenty-six pages to describe the record evidence when performing its Jackson review, the opinion below devotes approximately two pages to describe the evidence at trial. Hence, the State is unable to properly describe the trial evidence with reference to the lower court’s opinion, at least within the scope of this PDR. For an in depth discussion of the record evidence, the State directs the Court to pages 2–48 of its brief filed in the Dallas Court of Appeals, attached as Appendix C to this PDR.

3 payments, Appellant’s spouse, Stacy Cary, created a fictitious consulting

agreement with Spencer. E.g., Cary v. State, No. 05-12-01421-CR, 2014

WL 4261233, at *31 (Tex. App.—Dallas Aug. 28, 2014) 4 (“Stacy Cary”)

(“From the evidence relating to Spencer’s consulting agreement with

Stacy, the jury could have reasonably inferred the agreement was a

subterfuge, fabricated several years after the purported effective date to

provide a false explanation for the transfers of money from Stacy to

Spencer that were used to finance Wooten’s campaign”).

The jury was charged that Appellant could be found guilty as either

a principal or party to the bribery offenses, acting in concert with his

spouse Stacy Cary (Stacy). For purposes of this appeal, Appellant’s

bribery convictions constituted a legal predicate for the remaining

counts, and hence, a finding of legal insufficiency as to the bribery counts

led the lower court to reverse and acquit all the remaining counts. David

Cary, 2015 WL 1346126, at *6–8.

4The State has attached a copy of the panel opinion in the Stacy appeal as Appendix B. 4 II. Legal Rationale of the Court of Appeals

The court of appeals held that the evidence at trial was legally

insufficient to sustain the conviction for all of the counts because, it

reasoned, the State’s proof at trial established that the only benefits to

the target of Appellant’s bribe, Wooten, were certain money transfers

from Stacy, Appellant’s wife, to Spencer, which the State argued at trial

were used to fund Wooten’s campaign. David Cary, 2015 WL 1346126, at

*6. As a result, the lower court reasoned that “the State did not meet its

burden to prove bribery beyond a reasonable doubt by something other

than a political contribution.” Id. In other words, the lower court

concluded that the State failed to prove the “exception” contained in

Texas Penal Code § 36.02(d)—that the payments were not a political

contribution as defined by Title 15 of the Election Code—beyond a

reasonable doubt, because the State’s evidence showed that most of the

bribery payments were eventually used in Wooten’s campaign for

political office. Id.; see Tex. Penal Code § 2.02(b) (“The prosecuting

attorney must negate the existence of an exception in the accusation

charging commission of the offense and prove beyond a reasonable doubt

5 that the defendant or defendant’s conduct does not fall within the

exception”).

And again, because bribery was the primary legal predicate for the

remaining counts, the court of appeals determined that the evidence was

legally insufficient to sustain Appellant’s conviction for those counts too.

GROUND FOR REVIEW

Does an appellate court give proper deference to a jury’s finding that the State proved—beyond a reasonable doubt—that the predicate bribery payments were not intended to be “political contributions,” when that court focuses on only the evidence tending to negate the finding, and fails to consider the totality of the evidence in support of the finding, including the rational inferences therefrom?

ARGUMENT

I. The Court Of Appeals’ Decision Conflicts With Another Panel Decision From The Same Court, On The Same Legal Issue.

The opinion below is inconsistent with the distinct, although

substantively identical, 5 panel decision in Stacy Cary. Although the

Stacy Cary opinion is unpublished, two justices on the Stacy Cary panel

resolved an identical question of legal sufficiency under Jackson against

5Without adopting the lower court’s analysis on this point, the State directs the Court to the lower court’s description of the nominal differences between the two prosecutions. See David Cary, 2015 WL 1346126, at *1, n.1. 6 Stacy, and affirmed her conviction—on a materially identical record. See

Stacy Cary, 2014 WL 4261233A, at *33–34. In other words two justices

on the Stacy Cary panel determined that a rational juror could have

found the State disproved the political contribution element beyond a

reasonable doubt, on substantially the same evidence. While the panel in

this proceeding was not technically bound by the Stacy Cary opinion

(because the Stacy Cary opinion is unpublished), the moral and logical

tension between the two outcomes is problematic, e.g., how can Stacy be

guilty while Appellant, her spouse, is acquitted of the same crimes, on

essentially the same evidence? Moreover, the “fact” that the Stacy Cary

panel found legally sufficient evidence to support the convictions in that

appeal is, by definition, considerable support for the State’s argument

that the panel in this appeal resolved the question incorrectly—at least

if the justices on the Stacy Cary panel are themselves rational.

II. The Court of Appeals Resolved an Important Question of Constitutional Law In a Way That Appears to Conflict With the Applicable Decisions of Both This Court and the Supreme Court of the United States.

The court of appeals appears to have misapplied the Jackson

standard for legal sufficiency. As a result, it failed to give proper 7 deference to the jury’s historic determination that Appellant did not

intend his predicate bribery payments to constitute political

contributions. This Court has mandated that the legal sufficiency

standard established in Jackson is the only standard to be used in a

criminal case. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010) (plurality op.). On review, all evidence—and any reasonable

inferences from that evidence—are framed and measured in the light

most favorable to the verdict; after which it is determined whether any

rational trier of fact could have found the elements of the offense beyond

a reasonable doubt. Jackson, 443 U.S. at 319; Gear v. State, 340 S.W.3d

743, 746 (Tex. Crim. App. 2011). The jury is the exclusive judge of witness

credibility and the weight of the evidence. Isassi v. State, 330 S.W.3d 633,

638 (Tex. Crim. App. 2010). An appellate court presumes that the

factfinder resolved any conflicting inferences in favor of the verdict and

defers to that resolution. See Jackson, 443 U.S. at 326; Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court also

defers to the factfinder’s evaluation of the credibility of the evidence and

weight to give the evidence. See Williams v. State, 235 S.W.3d 742, 750

8 (Tex. Crim. App. 2007). The appellate court may not sit as a thirteenth

juror and substitute its judgment for that of the fact finder by

reevaluating the weight and credibility of the evidence. Id.

Here, the court of appeals cited the Jackson standard obliquely,

with reference to Delay v. State, 443 S.W.3d 909, 912 (Tex. Crim. App.

2014). David Cary, 2015 WL 1346126, at *2. And while the lower court

correctly noted that, “sometimes 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,” in

doing so the court failed to properly frame the evidence at trial in favor

of the verdict. Id. at *4–6. Instead, the appellate court focused on only

evidence tending to negate the jury’s determination that the payments

were not intended to be a “political contribution.” See id. In essence, the

lower court appears to have applied the civil standard for such review,

9 i.e., whether the jury’s resolution was against the great weight of

competing evidence. 6 This was error.

The relevant legal question when properly framed, is whether—at

the moment Appellant directed the transfer of money to Spencer—

Appellant’s intent was that each payment constitute a political

contribution. E.g., Mustard v. State, 711 S.W.2d 71, 75 (Tex. App.—

Dallas 1986, pet. ref’d) (“The offense of bribery focuses on the mental

state of the actor, and is complete if a private citizen, by offering,

conferring, or agreeing to confer intends an agreement”). The question

then becomes whether the State proved that it was not Appellant’s intent

to make a political contribution at the instant each payment was made,

beyond a reasonable doubt. The court of appeals arguably recognized this

as the correct standard. See David Cary, 2015 WL 1346126, at *5 (“[I]f

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”).

6 So, too, the lower court’s rationale is much like the standard for factual sufficiency defined in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), a standard ultimately jettisoned by this Court in Brooks. See Brooks, 323 S.W.3d at 895. 10 When the legal question is properly framed with reference to only

the evidence supporting the jury’s verdict, however, it becomes apparent

that the Stacy Cary panel correctly resolved this question. See Stacy

Cary, 2014 WL 4261233A, at *33–34. A rational jury could have found

that Appellant did not intend for the predicate 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 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 spouse

Stacy. In other words, when the evidence supporting the jury verdict is

properly framed, a rational juror could have determined that Appellant

had no specific intent that his payments made by his spouse be used

specifically in connection with the campaign. Such a juror finding, if

rational, constitutes legally sufficient evidence of bribery.

In rejecting these arguments the lower court discarded the jury’s

inference in favor of the jury’s actual decision, supplanting it instead with

11 evidence and argument against that decision. E.g., David Cary, 2015 WL

1346126, at *5 (the jury could not have relied on Appellant’s deceptive

conduct in preventing the payments from being traced back to him

because “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”).

There are at least two problems with this approach. First, the

State’s “theory” of the case is not outcome determinative to the question

of legal sufficiency, which considers evidence and valid inferences in

relation to a jury charge—as they relate to the outcome the jury actually

achieved. Second, the lower court gave too much weight to the

consideration provided Wooten, and how those payments were ultimately

used in her campaign. See David Cary, 2015 WL 1346126, at *6 (showing

that the lower court focused almost exclusively on the manner in which

the “benefit” to Wooten was eventually used, and not on the evidence

12 supporting the jury’s inference that Appellant did not specifically intend

that benefit).

While the State did charge Appellant with “bribing Wooten,” it

alleged that Appellant offered, or conferred, or agreed to confer on

another that payment, and the jury was properly instructed that proof of

any one of the three alleged acts would warrant conviction, no proof of a

bilateral agreement is needed. E.g., Martinez v. State, 696 S.W.2d 930,

933 (Tex. App.—Austin 1985, pet. ref’d) (distinguishing from McCallum

v. State, 686 S.W.2d 132 (Tex. Crim. App. 1985) (proof of a bilateral

agreement required where indictment only alleged a single theory of

bribery)). Rather, in this instance, the offense of bribery is complete at

the moment the offer is made. Martinez, 696 S.W.2d at 933 and n.3

(noting the “McCallum court’s understanding of the ‘as consideration for’

language found in §36.02 and in Model Penal Code § 240.1 is not that of

the model code commentators”) (citing Model Penal Code § 240.1,

Comment 4(b), (c)); see Mustard, 711 S.W.2d at 75. Hence, the lower

court’s fixation with the manner in which the money was ultimately used

in the campaign, while probative, does not foreclose the possibility that

13 Appellant did not intend the money to be used as a political contribution

at the moment he made the payment. This was the only question that

mattered, and jury resolved it in favor of State.

III. Fairness and Justice Support this PDR

As discussed, above, this Court granted a PDR in the Stacy Cary

appeal to resolve the legal issue that the lower court resolved against the

State in this appeal. The Court should grant PDR in this appeal for the

same reason. Perhaps more important, PDR is necessary here to ensure

both fairness to all parties, and the even-handed administration of

justice. Finally, this appeal will assist the Court in providing guidance to

the lower courts regarding the application of the Jackson standard for

legal sufficiency under the bribery statute, and specifically the manner

in which to analyze the exception in Texas Penal Code § 36.02(d), beyond

a reasonable doubt.

14 PRAYER FOR RELIEF

For the foregoing reasons, the State respectfully requests that this

Court grant PDR, reverse the lower court, and affirm Appellant’s

convictions on all counts.

Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

ADRIENNE McFARLAND Deputy Attorney General for Criminal Justice

EDWARD L. MARSHALL Chief, Criminal Appeals Division

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

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

ATTORNEYS FOR THE STATE

15 CERTIFICATE OF SERVICE

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

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

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

correct copy of the foregoing notice was served electronically by that

electronic filing manager, on the following attorneys via electronic mail:

John Michael Helms Jr. Attorney for Appellant

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

designated attorneys are not on file with the electronic filing manager, a

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

addressed to:

John Michael Helms Jr. john@johnhelmslaw.com

Lisa McMinn State Prosecuting Attorney lisa.mcminn@spa.texas.gov

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

16 CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF APPELLATE PROCEDURE 9.4

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

contains 3,636 words, as calculated pursuant to Tex. R. App. Proc. 9.1(i),

in Microsoft Word 2013, Century, 14 points.

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

17 ______________________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ______________________________

DAVID FREDERICK CARY, Appellant/Respondent, v.

THE STATE OF TEXAS, Appellee/Petitioner. ______________________________

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

APPENDIX A STATE’S PETITION FOR DISCRETIONARY REVIEW Cary v. State, --- S.W.3d ---- (2015) 2015 WL 1346126

2015 WL 1346126 Only the Westlaw citation is currently available. BACKGROUND NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE Appellant’s convictions arise from the same evidence PERMANENT LAW REPORTS. UNTIL RELEASED, presented by the State in the previous trial of his wife, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Stacy Stine Cary. We described all of the evidence at great length in our opinion in Stacy Cary’s appeal. OPINION SeeCary v. State, No. 05–12–01421–CR, 2014 WL Court of Appeals of Texas, 4261233 (Tex.App.–Dallas Aug. 28, 2014, pet. granted) Dallas. (not designated for publication). Because the parties agree David Cary, Appellant that the records in both cases are nearly identical,1 we do v. not re-describe all of the evidence again here. Instead, we The State of Texas, Appellee discuss pertinent evidence below as it pertains to the issues we must decide in this appeal. No. 05–13–01010–CR | Opinion Filed March 25, 2015

On Appeal from the 366th Judicial District Court, ISSUES ON APPEAL Collin County, Texas, Trial Court Cause No. 366–81636–2011 Appellant raises six issues on appeal (several of which are different from the issues raised in Stacy Cary’s appeal). In Attorneys and Law Firms his first issue, appellant argues that the evidence is legally insufficient to support his bribery convictions because (1) John M. Helms, for David Cary. the State’s evidence proved an exception to the bribery statute, (2) there was no evidence of consideration, and Cara Blossom Hanna, Elizabeth A. Goettert, Gretchen B. (3) there was no evidence of intent. In his second issue, Merenda, Harry Eugene White, for the State of Texas. appellant argues that the evidence is legally insufficient to Before Justices Bridges, Lang–Miers, and Myers 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 OPINION laundering because there was insufficient evidence of the sole predicate offense of bribery. In his fourth issue, Opinion by Justice Lang–Miers appellant argues that he received ineffective assistance of counsel because his counsel admittedly failed to timely *1 Appellant David Cary was charged with eight amend appellant’s sentencing election so that punishment felonies—six counts of bribery, one count of money could be assessed by the trial court, which caused laundering, and one count of engaging in organized appellant to receive a longer sentence. In his fifth issue, criminal activity. After finding appellant guilty as appellant argues that the bribery statute is unconstitutional charged, the jury assessed concurrent sentences of as applied because it impermissibly burdened his First fourteen years in prison for each offense. On appeal Amendment right to exercise political speech. In his sixth appellant argues that (1) the evidence is legally issue, appellant argues that the bribery statute is facially insufficient to support his convictions, (2) he received unconstitutional because it is vague and overbroad. We ineffective assistance of counsel, and (3) the bribery only address appellant’s first three issues because our statute is unconstitutional. We conclude that the State’s resolution of those issues is dispositive of this appeal. evidence is legally insufficient to support appellant’s convictions. We reverse the trial court’s judgments and render judgments of acquittal.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Cary v. State, --- S.W.3d ---- (2015) 2015 WL 1346126

STANDARD OF REVIEW agreement shall be required in any prosecution under this subdivision. *2 In evaluating the legal sufficiency of the evidence to support a criminal conviction, “reviewing courts are (b) It is no defense to prosecution under this section obliged to view all of the evidence in the light most that a person whom the actor sought to influence was favorable to the jury’s verdict, in deference to the jury’s not qualified to act in the desired way whether because institutional prerogative to resolve all contested issues of he had not yet assumed office or he lacked jurisdiction fact and credibility.” Delay v. State, 443 S.W.3d 909, 912 or for any other reason. (Tex.Crim.App.2014). But sometimes, as in this case, “appellate review of legal sufficiency involves simply (c) It is no defense to prosecution under this section construing the reach of the applicable penal provision in that the benefit is not offered or conferred or that the order to decide whether the evidence, even when viewed benefit is not solicited or accepted until after: in the light most favorable to conviction, actually establishes a violation of the law.” Id. (1) the decision, opinion, recommendation, vote, or other exercise of discretion has occurred; or

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

BRIBERY (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 Applicable Law Code, or an expenditure made and reported in The bribery statute at issue in this case provides as accordance with Chapter 305, Government Code. follows: (e) An offense under this section is a felony of the (a) A person commits an offense if he intentionally or second degree. knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from TEX. PENAL CODE ANN. § 36.02 (West 2011) another: (internal footnote omitted).

(1) any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party The Indictment official, or voter; The indictment charged appellant with bribery in counts two through seven in connection with six separate (2) any benefit as consideration for the recipient’s payments from Stacy Cary to James Stephen Spencer, decision, vote, recommendation, or other exercise of Suzanne Wooten’s campaign manager. For example, official discretion in a judicial or administrative count two alleged that appellant, proceeding; on or about January 4, 2008, ... did (3) any benefit as consideration for a violation of a then and there intentionally and duty imposed by law on a public servant or party knowingly offer, confer, and agree official; or to confer a benefit, other than a political contribution as defined by (4) any benefit that is a political contribution as Title 15, Election Code, or an defined by Title 15, Election Code, or that is an expenditure made and reported in expenditure made and reported in accordance with accordance with Chapter 305 of the Chapter 305, Government Code, if the benefit was Government Code, to-wit: $50,000 offered, conferred, solicited, accepted, or agreed to to Suzanne H. Wooten, a public pursuant to an express agreement to take or withhold servant, to-wit: a candidate for the a specific exercise of official discretion if such office of Judge of the 380th exercise of official discretion would not have been Judicial District Court and taken or withheld but for the benefit; presiding Judge of the 380th notwithstanding any rule of evidence or jury Judicial District Court, as instruction allowing factual inferences in the absence consideration for Suzanne H. of certain evidence, direct evidence of the express © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Cary v. State, --- S.W.3d ---- (2015) 2015 WL 1346126

Wooten’s decision, opinion, (A) a loan made in the due course of business by a recommendation, vote, or other corporation that is legally engaged in the business of exercise of discretion as a public lending money and that has conducted the business servant, and as consideration for continuously for more than one year before the loan Suzanne H. Wooten’s decision, is made; or vote, recommendation, and other exercise of official discretion in a (B) an expenditure required to be reported under judicial proceeding, to wit: filing Section 305.006(b), Government Code. paperwork to run for Judge, proceeding and continuing with a (3) “Campaign contribution” means a contribution campaign to unseat the incumbent to a candidate or political committee that is offered or elected Judge of the 380th Judicial given with the intent that it be used in connection District Court, and as Judge of the with a campaign for elective office or on a measure. 380th Judicial District Court Whether a contribution is made before, during, or after presiding over and issuing an election does not affect its status as a campaign favorable rulings in cases in which contribution. [appellant] and Stacy Stine Cary are parties[.] (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 *3 The allegations in the other five bribery counts that: differed only with respect to the date and amount of the transfer. The payments totaled $150,000 and occurred (A) are incurred by the officeholder in performing a between January 4 and March 14, 2008. The jury charge duty or engaging in an activity in connection with tracked the indictment and instructed the jury that the office; and appellant could be found guilty as a principal or as a party to the offenses of bribery. (B) are not reimbursable with public money.

(5) “Political contribution” means a campaign contribution or an officeholder contribution. Analysis Appellant was charged with bribery under penal code (6) “Expenditure” means a payment of money or any sections 36.02(a)(1) and 36.02(a)(2). As a result, the other thing of value and includes an agreement made or exception for political contributions found in section other obligation incurred, whether legally enforceable 36.02(d) applies, and under section 2.02(b) of the penal or not, to make a payment. code,2 it was the State’s burden to prove beyond a reasonable doubt that the benefits to Wooten, in this case (7) “Campaign expenditure” means an expenditure the payments to Spencer, were something other than made by any person in connection with a campaign for political contributions. In his first issue, appellant argues an elective office or on a measure. Whether an that the evidence is legally insufficient to support his expenditure is made before, during, or after an election bribery convictions because the State failed to satisfy that does not affect its status as a campaign expenditure. burden. We agree. *4 TEX. ELEC. CODE ANN. § 251.001(2)–(7) (West We begin by looking to the relevant definitions in Title 15 2010) (emphasis added). of the Texas Election Code. Shown in context, the relevant provisions of the election code provide: Boiled down, the State’s theory in this case was that the Carys secretly funded Wooten’s campaign for elective (2) “Contribution” means a direct or indirect transfer office. And the only evidence of a benefit to Wooten in of money, goods, services, or any other thing of value this case was that Stacy Cary gave money to Spencer and and includes an agreement made or other obligation Spencer used it in connection with Wooten’s campaign. incurred, whether legally enforceable or not, to make a During opening statements, for example, the State told the transfer. The term includes a loan or extension of jury, credit, other than those expressly excluded by this subdivision, and a guarantee of a loan or extension of Without Stacy Cary’s money that credit, including a loan described by this subdivision. was given to Stephen Spencer, The term does not include: Suzanne Wooten does not win. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Cary v. State, --- S.W.3d ---- (2015) 2015 WL 1346126

Suzanne Wooten spends money on A. It would be the Plano Profile cashier’s check on signs. She spends money on radio February 5th. ads. She spends money on print ads. She spends money on direct Q. Okay. mailers. She hires a consultant. None of these things are possible A. The Cartwright Signs check on February 5th. without the money being given to Actually both of those together there for $3877 and her. $4036. And then the last Cartwright expenditure on February 8th of 2008. During its case in chief, the State proved its theory Q. All right. So, absent this $25,000 from Stacy through testimony and documentary evidence. During Cary, does Stephen Spencer have the funds to get Spencer’s direct examination by the State, for example, he these cashier’s checks? repeatedly acknowledged that he used the money he received from Stacy Cary to pay for Wooten’s campaign A. No, he does not. expenditures. Spencer’s testimony was consistent with State’s Exhibit 94, a compendium exhibit created by the Likewise, with respect to the transfer of $25,000 from State’s fraud examiner, Kyle Swihart. Exhibit 94 shows Stacy Cary to Spencer on February 15, Swihart testified the timing of the payments from Stacy Cary to Spencer, that it was used to pay campaign expenditures: and which campaign expenses were paid using the money. Swihart testified at length about the evidence Q. Okay. Now, the next thing I’d like to ask you summarized in State’s Exhibit 94. For example, with about is this next transfer from Stacy Cary. respect to the transfer of $50,000 from Stacy Cary to Spencer on January 4, Swihart explained that it was *5 A. The one on February 15th? immediately used to pay Wooten’s campaign consultant, Hank Clements: Q. Yes, sir. Can you tell me about that?

Q. All right. We’ve got these two payments to Hank A. That is another transfer that occurred. I believe Clements totaling $15,000, which happen to be just a that one may have been via check. And that occurred few days after this $50,000 comes in. Absent this on February 15th. money from Stacy Cary, does Stephen Spencer have the money to pay for Hank Clements? Q. Okay. And so his balance after that transfer of $25,000 is how much? A. No. A. It’s $25,000.92. Q. And absent this money from Stacy Cary, does Suzanne Wooten’s campaign have the money to pay Q. And so that occurs on the 15th. And on the 20th, for Hank Clements? does he draw two checks?

A. No. A. Yes, he does.

With respect to the transfer of $25,000 from Stacy Cary to Q. Okay. And what are those checks for? Spencer on February 4, Swihart testified that it was used A. Those are for radio ads for KVIL and KRLD. to pay for additional campaign expenditures: Q. And absent this $25,000 that he receives from Q. Okay. And then there’s another—appears to be Stacy Cary, does he have the funds to pay for these another transfer from Stacy Cary? advertisements? A. Yes, of $25,000 that posted to his account on A. No, he does not. February 4th of 2008. Q. Okay. And absent this $25,000 from Stacy Cary, Q. All right. Now, after that post[ed] to his account, does the Suzanne Wooten Campaign account have does he cut several more cashier’s checks? the funds to pay for these advertisements? A. Yes, he does. A. No. Q. Can you tell us what those cashier’s checks are? © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Cary v. State, --- S.W.3d ---- (2015) 2015 WL 1346126

Finally, during closing argument, the State told the jury bribing Wooten, the State’s theory was that the Carys that Stacy Cary’s money was not a political contribution funded Wooten’s campaign, and the jury was asked because it “never goes into [Wooten’s] account. It’s never whether the payments were made to Wooten as reported.” consideration for various actions on her part, including issuing rulings favorable to the Carys. The State argues on appeal that the payments to Spencer for Wooten’s benefit should not be considered political *6 We recognize that the majority did not reach this contributions because the evidence demonstrates that conclusion in Cary. See2014 WL 4261233, at *33–34. In appellant “deliberately engaged in several deceptive that appeal, however, Stacy Cary did not raise the same practices to prevent the funds from being traced to him.” issues as those presented here. For example, Stacy Cary We must confine our analysis, however, to the definitions did not raise the issue of whether the State failed to prove found in the election code. And under the definition of that the transfers from her to Spencer were not political “political contribution” in the election code, no exception contributions. Instead, Stacy Cary affirmatively argued in is made for covert indirect transfers of money. her appeal that the transfers to Spencer were compensation for services rendered under a consulting Additionally, under the applicable definitions in the agreement. And the majority’s discussion of unassigned election code, the money did not need to be transferred error raised by the dissent was obiter dictum and not directly to Wooten’s campaign account, nor did it need to material to the majority’s resolution of Stacy Cary’s be properly reported in Wooten’s campaign filings, in appeal. order for it to constitute a political contribution. Instead, if Stacy Cary transferred money to Spencer with the intent We conclude that the State’s evidence proved that the that it be used in connection with Wooten’s campaign, only benefits to Wooten were the transfers from Stacy then, by definition, the money is a political contribution. Cary to Spencer, which the State argued were payments made to fund her campaign. As a result, the State did not The State also argues that a conclusion that the benefits to meet its burden to prove bribery beyond a reasonable Wooten were political contributions would lead to an doubt by something other than a political contribution.3 absurd result because it would mean that anyone could We resolve appellant’s first issue in his favor, reverse the covertly and indirectly fund a judge’s campaign in convictions for bribery, and render judgments of acquittal. 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 MONEY LAUNDERING its burden under the specific language in section 36.02 of the penal code and Title 15 of the election code. SeeTEX. A person commits the offense of money laundering if he PENAL CODE ANN. § 36.02; TEX. ELEC. CODE “knowingly finances or invests or intends to finance or ANN. § 251.001(2)–(7). invest funds that the person believes are intended to further the commission of criminal activity.” TEX. The State also argues that a rational jury could have found PENAL CODE ANN. § 34.02(a)(4) (West 2011). In this that appellant did not intend for the transfers to Spencer to case the State alleged that appellant, be used in connection with Wooten’s campaign, and instead intended that the payments to Spencer “be used to on or about and between January 4, obtain, by any means necessary, (1) a person who would 2008 and March 14, 2008, ... did challenge the incumbent judge of the 380th Judicial then and there, pursuant to one District Court, despite the odds stacked against scheme and continuing course of succeeding in such a challenge, and/or (2) a judge who conduct, knowingly finance, invest, would rule favorably in Appellant’s custody and visitation and intend to finance and invest proceedings, and/or rule in favor of his wife Stacy.” The funds that [appellant] believed were State contends that because of a difference between the intended to further the commission amount Spencer spent on Wooten’s campaign and the of criminal activity, to-wit: Bribery, amount she reimbursed him, the jury could have inferred and the aggregate value of said “that Appellant had no specific intent that every payment proceeds was $100,000 or more but made by his wife be used specifically in connection with less than $200,000[.] the campaign.” But the State charged appellant with In his third issue, appellant argues that the evidence is © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Cary v. State, --- S.W.3d ---- (2015) 2015 WL 1346126

legally insufficient to support his conviction for money James Stephen Spencer, did commit and conspire to laundering because there is “insufficient evidence of the commit the following offenses: 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 Tampering with a Government Record, in that commission of bribery. But in this case, the State’s only Suzanne H. Wooten did then and there, with the intent evidence was that appellant believed Stacy Cary was to defraud and harm another, namely, the State of making what constitutes political contributions under the Texas, the Texas Ethics Commission, and the citizens election code. And the political contributions Stacy Cary of Texas, intentionally and knowingly make, present, made are subject to the exception under the bribery and use a governmental record with knowledge of its statute. As a result, there is no evidence that appellant falsity, to-wit: prepared, swore, and affirmed a Personal believed he was furthering the commission of bribery. We Financial Statement that was submitted to the Texas resolve appellant’s third issue in his favor, reverse the Ethics Commission and did not list and report all gifts conviction for money laundering, and render a judgment and loans, as required by Texas Government Code Sec. of acquittal. 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 and fact [Wooten] had received gifts and loans from [appellant], Stacy Stine Cary, and James ENGAGING IN ORGANIZED CRIMINAL Stephen Spencer during the calendar year 2008; ACTIVITY and in furtherance of the conspiracy to commit said A person commits the offense of engaging in organized offenses [appellant] performed one or more overt acts, criminal activity “if, with the intent to establish, maintain, to-wit: communicated with other members of the or participate in a combination or in the profits of a combination, and organized, planned, and supervised combination, ... the person commits or conspires to the other members of the combination.... commit one or more [enumerated offenses].” SeeTEX. PENAL CODE ANN. § 71.02(a) (West Supp.2014). In See id.§§ 37.10(a)(5), 71.02(a)(13). this case the State alleged that appellant engaged in organized criminal activity by committing or conspiring The governmental record at issue here is Wooten’s to commit three predicate offenses: bribery, money Personal Financial Statement for calendar year 2008 that laundering, and tampering with a governmental record. she filed with the Texas Ethics Commission as part of her See id. §§ (9) (bribery), (10) (money laundering), (13) judicial campaign. The State argued that appellant, (tampering with a governmental record). Wooten, and at least one other person committed and conspired to commit tampering with a governmental *7 We have concluded that the evidence is insufficient to record, specifically, falsifying Wooten’s Personal support the convictions for bribery and money laundering; Financial Statement by omitting loans and gifts she consequently, those predicate offenses will not support received from appellant, Stacy Cary, and Spencer. the conviction for engaging in organized criminal activity. The sole remaining alleged predicate offense is tampering with a governmental record. Applicable Law The government code requires a candidate or officeholder to file a Personal Financial Statement and, in that report, The Indictment to disclose personal loans over $1,000 and personal gifts In the indictment the State alleged that appellant engaged over $250 made or given to the reporting individual, the in organized criminal activity by tampering with a reporting individual’s spouse, or the reporting governmental record as follows: individual’s dependent child. TEX. GOV’T CODE ANN. § 572.023(a)(5), (7) (West 2012). As charged in this case, on or about and between September 19, 2007 and a person commits the offense of tampering with a October 20, 2009, ... with intent to establish, maintain, governmental record if the person makes, presents, or and participate in a combination and in the profits of a uses a Personal Financial Statement with knowledge of its combination of three or more persons, namely, falsity and with intent to defraud or harm another. [appellant], Suzanne H. Wooten, Stacy Stine Cary, and SeeTEX. PENAL CODE ANN. § 37.10(a)(5); State v.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Cary v. State, --- S.W.3d ---- (2015) 2015 WL 1346126

Vasilas, 198 S.W.3d 480, 484 (Tex.App.–Dallas 2006), Spencer delivered a gift of money to Wooten, or that aff’d,253 S.W.3d 268 (Tex.Crim.App.2008). Wooten accepted a gift of money from appellant, Stacy Cary, or Spencer. “Gift,” “personal loan,” and “personal note” are not defined in the statute. The ordinary meaning of “gift” is a We also conclude that the State did not offer any evidence voluntary transfer of property to another made that appellant, Stacy Cary, or Spencer loaned Wooten gratuitously and without consideration. Magness v. money. Wooten’s Personal Financial Statement disclosed Magness, 241 S.W.3d 910, 912 (Tex.App.–Dallas 2007, a loan to Wooten individually from Bank of America, and pet. denied). The elements of a gift are (1) the intent to Swihart testified that “[a]s far as [he knew]” that was the make a gift; (2) delivery of the property; and (3) only loan for Wooten’s campaign. The State offered no acceptance of the property. Id. The ordinary meaning of evidence that Wooten signed a personal note in favor of “loan” is “money lent at interest.” WEBSTER’S THIRD appellant, Stacy Cary, or Spencer. And Steusloff testified NEW INTERNATIONAL DICTIONARY 1326 (1981). that he believed to constitute a personal note “as a And “note” means “a written or printed paper minimum, there would need to be a document that said ‘I, acknowledging a debt and promising payment.” Id. at Suzanne Wooten, promise to pay.’ ” The State offered no 1544. The State’s campaign finance expert, Ian Steusloff, such document. We conclude that the State offered no testified that he understood “personal note” to include a evidence of a personal note or personal loan to Wooten “document that states that you agree to pay a specific individually. amount to another person[.]” 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 Analysis statement was required to include, or knew what Wooten *8 In his second issue, appellant argues that there is no disclosed when she filed it. The State concedes that there evidence of unreported loans or gifts to Wooten is “no direct evidence of [a]ppellant’s knowledge of individually; there is no evidence Wooten’s Personal Wooten’s campaign records or record filing Financial Statement was false; and there is no evidence requirements,” but it argues that the jury could have appellant knew about the existence or contents of inferred based on appellant’s “blatant disregard for Wooten’s Personal Financial Statement. We agree. complying with any [reporting] restrictions [that] [a]ppellant must have intended for Wooten to omit him, All of the State’s evidence, indeed its entire theory, was his wife, and/or Spencer from her Personal Financial that the money Stacy Cary transferred to Spencer was Statement as the bulk of her campaign resources.” Based used to benefit Wooten’s judicial campaign. But the on this record, any such inference amounts to mere State’s ethics expert testified that the Personal Financial surmise or suspicion. Statement applied only to loans and gifts to the candidate, not to the campaign. And the State did not present any We conclude that the State offered no evidence that evidence that appellant, Stacy Cary, or Spencer directly or Wooten’s Personal Financial Statement omitted alleged indirectly gave money to Wooten individually. In fact, loans and gifts from appellant, Stacy Cary, or Spencer Swihart, the State’s fraud expert who investigated this because there is no evidence of loans or gifts from them case for four years, agreed that “there’s not a single to Wooten individually. We further conclude that the payment that went from either Dave or Stacy Cary to State offered no evidence of appellant’s knowledge that Suzanne Wooten” and “there’s not even a situation where Wooten allegedly falsified her Personal Financial there’s been a payment from either [of] the Carys to a Statement. Because there is no evidence to support any of third party who then turned around and forwarded that the alleged predicate offenses, the conviction for engaging money to Judge Wooten[.]” Steusloff testified that he was in organized criminal activity cannot stand. We resolve sitting in the courtroom for a majority of the witnesses’ appellant’s second issue in his favor, reverse the testimony and he had “not heard of any gifts.” And he conviction for engaging in organized criminal activity, agreed that if there was no evidence Wooten received a and render a judgment of acquittal. gift, then checking “Not Applicable” under “Gifts” on the Personal Financial Statement would be correct.

Having reviewed the entire record, we conclude that the State did not offer any evidence that appellant, Stacy CONCLUSION Cary, or Spencer intended to make a gift of money to Wooten individually, that appellant, Stacy Cary, or *9 We conclude that the evidence is legally insufficient to © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Cary v. State, --- S.W.3d ---- (2015) 2015 WL 1346126

sustain appellant’s convictions for bribery, money appellant’s remaining arguments. 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

Footnotes

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, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (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 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).

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.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 ______________________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ______________________________

THE STATE OF TEXAS, Appellee/Petitioner. ______________________________

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

APPENDIX B STATE’S PETITION FOR DISCRETIONARY REVIEW Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

to support the bribery, engaging in organized criminal activity, and money laundering convictions, and the trial 2014 WL 4261233 Only the Westlaw citation is currently available. court erred by excluding evidence that Stacy’s husband did not need to bribe a judge to obtain favorable rulings in SEE TX R RAP RULE 47.2 FOR DESIGNATION his child custody case. We affirm the trial court’s AND SIGNING OF OPINIONS. judgments.

OPINION Do Not Publish Tex.R.App. P. 4 Court of Appeals of Texas, Dallas. Background

Stacy Stine CARY, Appellant v. Indictment The STATE of Texas, Appellee. With regard to six transfers of money ($50,000 on No. 05–12–01421–CR. | Aug. 28, 2014. | January 4, 2008, $25,000 on January 30, 2008, $25,000 Discretionary Review Refused March 25, 2015 on February 14, 2008, $25,000 on February 26, 2008, $10,000 on March 7, 2008, and $15,000 on March 14, On Appeal from the 366th Judicial District Court, Collin 2008), Stacy was charged with six counts of bribery for County, Texas, Trial Court Cause No. 366–81637–2011. intentionally and knowingly offering, conferring, and James Fallon, Judge. agreeing to confer a benefit, other than a political contribution as defined by Title 15 of the election code, or Attorneys and Law Firms an expenditure made and reported in accordance with Chapter 305 of the government code, to Suzanne H. John M. Helms, Robert R. Smith, Dallas, TX, for Wooten as a public servant: appellants. to-wit: a candidate for the office of Cara Blossom Hanna, David Glickler, Harry Eugene Judge of the 380th Judicial District White, Greg Abbott, Austin, TX, for appellees. Court and presiding Judge of the 380th Judicial District Court, as Before Justices FITZGERALD, LANG, and FILLMORE. consideration for Suzanne H. Wooten’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant or as consideration for OPINION Suzanne H. Wooten’s decision, vote, recommendation, or other exercise of official discretion in a Opinion by Justice FILLMORE. judicial proceeding, to-wit: filing paperwork to run for Judge, *1 A jury found appellant Stacy Stine Cary (Stacy) guilty proceeding or continuing with a of one count of engaging in organized criminal activity, campaign to unseat the incumbent six counts of bribery, and one count of money laundering. elected judge of the 380th Judicial The trial court assessed punishment of ten years’ District Court, and as Judge of the confinement and a fine of $10,000 for each count, those 380th Judicial District Court sentences to run concurrently. The trial court suspended presiding over and issuing imposition of the sentences, and placed Stacy on favorable rulings in cases in which community supervision for a period of ten years. The trial [Stacy] and David Cary are court required her to serve thirty days in county jail as a parties[.] condition of her community supervision.1 Stacy was charged with money laundering as follows: In four issues, Stacy contends the evidence is insufficient

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

[Stacy] on or about and between October 20, 2009, ... with intent to establish, maintain, January 4, 2008 and March 14, and participate in a combination and in the profits of a 2008, ... did then and there, combination of three or more persons, namely, [Stacy], pursuant to one scheme and Suzanne H. Wooten, David Cary, and James Stephen continuing course of conduct, Spencer, did commit and conspire to commit the knowingly finance, invest, and following offenses: intend to finance and invest funds that [Stacy] believed were intended *2 Bribery, in that [Stacy] did then and there to further the commission of intentionally and knowingly offer, confer, and agree to criminal activity, to-wit: Bribery, confer a benefit, other than a political contribution as and the aggregate value of said defined by Title 15, Election Code, or an expenditure proceeds was $100,000 or more but made and reported in accordance with Chapter 305 of less than $200,000[.] the Government Code, to-wit: one or more of the following transactions: Stacy was also charged with engaging in organized criminal activity as follows:

[O]n or about and between September 19, 2007 and Date of Transfer Date of Deposit Amount

January 4, 2008 January 4, 2008 $50,000

January 30, 2008 February 4, 2008 $25,000

February 14, 2008 February 15, 2008 $25,000

February 26, 2008 February 26, 2008 $25,000

March 7, 2008 March 7, 2008 $10,000

March 14, 2008 March 14, 2008 $15,000

in a judicial proceeding, to-wit: filing paperwork to run to Suzanne H. Wooten, a public servant, to-wit: a for Judge, proceeding and continuing with a campaign candidate for the office of Judge of the 380th Judicial to unseat the incumbent elected Judge of the 380th District Court and presiding Judge of the 380th Judicial Judicial District Court, or as Judge of the 380th Judicial District Court, as consideration for Suzanne H. District Court presiding over and issuing favorable Wooten’s decision, opinion, recommendation, vote, or rulings in cases in which [Stacy] or David Cary are other exercise of discretion as a public servant or as parties; OR consideration for Suzanne H. Wooten’s decision, vote, recommendation, or other exercise of official discretion Money Laundering, in that [Stacy] did then and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

there, pursuant to one scheme and continuing course represented Jennifer throughout the divorce proceeding. of conduct, knowingly finance, invest, intend to Robertson testified at trial regarding the divorce and a finance and invest funds that [Stacy] believed were subsequent suit affecting the parent-child relationship intended to further the commission of criminal (SAPCR). David was represented by four different activity, to-wit: Bribery, and the aggregate value of lawyers during the divorce proceeding, and in the divorce said proceeds was $100,000 or more but less than proceeding and subsequent SAPCR many depositions $200,000; OR were taken and hearings conducted.

Tampering with a Government Record, in that In the divorce proceeding, David and Jennifer reached an Suzanne H. Wooten did then and there, with intent to agreement regarding the terms of possession of their twin defraud and harm another, namely, the State of daughters, the amount of child support, and a fund to be Texas, the Texas Ethics Commission, or the citizens established by David for the children’s education of the State of Texas, intentionally and knowingly expenses. Sandoval signed the final divorce decree on make, present, and use a governmental record with October 5, 2004.2In April 2005, Jennifer filed a SAPCR in knowledge of its falsity, to-wit: prepared, swore, or the 380th Judicial District Court. The parties mediated affirmed a Personal Financial Statement that was Jennifer’s SAPCR, and a partial mediated settlement submitted to the Texas Ethics Commission and did agreement was signed in June 2005 and filed in not list and report all gifts and loans, as required by Sandoval’s court in July 2005. Texas Government Code Sec. 572.023, omitting [Stacy], David Cary, and James Stephen Spencer In the summer or fall of 2005, a hearing in the SAPCR under the heading “Gifts,” and the heading “Personal proceeding was conducted on Jennifer’s motion for Note and Lease Agreements,” when in truth and fact temporary orders. David filed a motion to transfer the said Suzanne H. Wooten had received gifts and loans proceeding to Dallas County, Texas, which Jennifer from [Stacy], David Cary, and James Stephen opposed. Sandoval denied David’s motion to transfer the Spencer during the calendar year 2008; case.3In April 2006, David filed a motion to recuse Sandoval. On May 8, 2006, the judge appointed to hear and in furtherance of the conspiracy to commit said the motion to recuse denied that motion. In October 2006, offenses [Stacy] performed one or more overt acts, a trial was conducted before Sandoval concerning a to-wit: initiated, authorized, and executed six number of issues in the SAPCR. Among Sandoval’s monetary transactions composed of wire transfers rulings following the trial was an order that David pay and checks totaling $150,000 to James Stephen Jennifer’s attorney’s fees in the amount of $416,543.16.4A Spencer[.] final order of modification was signed by Sandoval on December 1, 2006. Robertson testified that David appealed almost every order signed by Sandoval, and Robertson found it unusual that neither David nor Jennifer Evidence at Trial appealed Sandoval’s final order of modification. In *3 The reporter’s record in this appeal includes the January 2007, David filed a motion to modify the prior testimony of the numerous witnesses at trial, as well as order in the SAPCR. Robertson testified that in moving to voluminous documents admitted in evidence. Because modify a SAPCR order, one typically must allege some this appeal involves a challenge to the sufficiency of the change in circumstances occurring since the last order. evidence to support Stacy’s convictions, a rather lengthy Robertson was surprised by David’s motion to modify, discussion of the testimony and key exhibits admitted at because it was filed the month after Sandoval’s December trial is necessary. 2006 final order of modification. In his motion to modify, David asserted he had secured full-time employment at a higher salary than attributed to him at the entry of prior modification orders, he had married Stacy on December 3, 2006 resulting in a decrease in his monthly expenses, Rick Robertson and he had a court-ordered duty to support a teenage daughter from a marriage prior to his marriage to Jennifer. David Cary (David) filed for divorce from Jennifer Cary David also moved again for transfer of the proceeding to (Jennifer) in December 2003. The divorce petition was Dallas County.5Jennifer answered the January 2007 filed in the 380th Judicial District Court of Collin County, motion to modify and sought an order that David pay her Texas. Judge Charles Sandoval (Sandoval) was the attorney’s fees and sanctions for filing frivolous presiding judge of that court. Rick Robertson, a board pleadings. Sandoval denied David’s motion to modify the certified family law attorney practicing in Collin County, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

December 1, 2006 order. On June 25, 2007, Sandoval behalf of David at Tolleson Private Bank. signed an order sanctioning David in the amount of $50,000. Suster filed a motion to hold David in contempt for failure to pay the $50,000 sanction and for failure to provide Sandoval was opposed by Suzanne Wooten (Wooten) in information and documents as ordered by Sandoval on the 2008 Republican primary for judge of the 380th January 31, 2007. Shortly after Sandoval signed the Judicial District Court. There was no candidate in the requested turnover order, Stacy filed a petition in 2008 Democrat primary for judge of the 380th Judicial intervention and motion to dissolve the turnover order, District Court, so the winner of the Republican primary and objections to subpoenas seeking information from would be elected judge of that court in the 2008 general third parties pursuant to the turnover order. Stacy sought election. Sandoval was defeated by Wooten in the 2008 sanctions against Suster. David filed a motion to set aside Republican primary, and his last day in office was the turnover order and the orders imposing sanctions and December 31, 2008. Wooten became the judge of the awarding attorney’s fees. At the January 3, 2008 hearing 380th Judicial District Court in January 2009. of David’s motions, Stacy testified she intervened in the lawsuit because Suster and Jennifer were trying to seize *4 Robertson testified that in January 2009, David filed Stacy’s funds, claiming the funds were owned by David. another motion to modify in the SAPCR. Robertson At the hearing, Stacy testified she purchased the cashier’s understood Jennifer retained attorney Kyle Basinger to check from Tolleson Private Bank used by David to represent her in David’s motion to modify. Before establish the educational fund ordered by Sandoval in Wooten announced her candidacy for judge of the 380th order to keep David from being held in contempt for Judicial District Court, she was affiliated with Basinger’s failure to make the payment. Stacy also testified at the law firm and practiced in the Collin County office of that hearing regarding payments she made to attorneys who firm. represented David. Sandoval quashed the prior turnover order and denied Stacy’s motion for sanctions against Suster.

On January 3, 2008, Suster was served with a December Israel Suster 2007 lawsuit filed by Stacy against him in County Court at Law No. 4, Collin County, Texas. Stacy alleged Suster Jennifer retained attorney Israel Suster to assist her in the had committed fraud by filing a lien in the 380th Judicial collection of $416,543.16 in attorney fees and the $50,000 District Court in conjunction with the application for a sanction Sandoval had previously ordered David to pay. turnover order. On May 28, 2008, Judge Wheless signed Suster testified that to facilitate collection of these sums, an order transferring Stacy’s lawsuit against Suster from he filed a Motion for Turnover Order in Sandoval’s court. County Court at Law No. 4 to the 380th Judicial District In the application, Jennifer sought to require the turnover Court to be consolidated with the SAPCR involving to a previously appointed receiver of funds held by David and Jennifer over which Sandoval was presiding. David’s legal counsel that allegedly constituted an unused Stacy objected to Wheless transferring her lawsuit against retainer paid by David, and funds held by Tolleson Suster to the 380th Judicial District Court and filed a Private Bank that allegedly were owned by or for the motion to reconsider the transfer. After Stacy’s lawsuit benefit of David and which he had the authority to against Suster was transferred to the 380th Judicial withdraw. In support of Jennifer’s Motion for Turnover District Court, Stacy did not press for the discovery she Order, Suster filed his affidavit and supporting exhibits had sought while the case was pending in the County which, among other things, stated that documents Court at Law. However, after Wooten became judge of produced by David’s legal counsel in response to a the 380th Judicial District Court in January 2009, Stacy subpoena duces tecum indicate the counsel was in pursued her motions for additional discovery and possession of $12,798.50 being held on behalf of David depositions. When Wooten allowed only a limited amount for the purpose of payment of future legal services, and of the discovery Stacy requested, Stacy dismissed her that upon Suster’s information and belief, David was the lawsuit against Suster. owner and/or beneficiary of funds held at Tolleson Private Bank. Attached as Exhibit 2 to Suster’s affidavit is a copy of a $30,000 cashier’s check issued by Tolleson Private Bank, representing payment by David to Jennifer of educational funds for their children that had been ordered Michael Puhl by Sandoval. Suster therefore assumed the educational fund payment originated from an account held by or on *5 Michael Puhl is a board certified family law attorney © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

practicing in Collin County, Texas. In 2006, the judge of of a lack of funds. Dodd advised Wooten that if she had the 366th Judicial District Court in Collin County was not signs, the Democratic Party would make sure they were seeking reelection, and Puhl ran as a candidate for distributed. election to that bench. Puhl’s campaign expenses totaled $20,000 to $25,000, and $5,000 to $8,000 of that amount After Dodd met with Wooten, he received a telephone call was funded from Puhl’s personal resources. Puhl testified from an individual in Austin, Texas. Dodd could not that his opponent spent over $100,000 on the campaign. remember the name of the caller, but the man told Dodd Puhl was not successful in that election. that “a bunch of lawyers ... did not like” Sandoval and they would “like to get him out.” The man told Dodd that In the fall of 2007, Puhl received a telephone call from Wooten looked like a good candidate to defeat Sandoval, James Spencer. Puhl had not previously met Spencer. and “they” wanted to help her. The man told Dodd that he Spencer told Puhl that he was interested in speaking to thought it would probably cost about $100,000 to run a Puhl about the possibility of Puhl running for election successful campaign, and he could get the money. The against Sandoval as the sitting judge of the 380th Judicial man was requesting permission to contact Wooten. Dodd District Court. Puhl’s best recollection was that he met told the man that Wooten was considering whether she with Spencer in mid or late summer of 2007. Spencer’s would run as a Democrat or a Republican. Dodd testified phone records show a phone call with Puhl on December that an individual had better odds of being elected in 5, 2007, but Puhl testified his initial phone conversation Collin County running as a Republican. Dodd gave the with Spencer took place much earlier than that date. man Wooten’s contact information. Sometime after that, Either in the phone conversation or in the subsequent Dodd contacted Wooten and inquired whether she was meeting, Spencer told Puhl that he was involved with the going to run for election as a Democrat or a Republican. Texas Home School Coalition (THSC), and there were Wooten informed Dodd she was going to run for election several people he knew who were dissatisfied with as a Republican. decisions rendered by Sandoval and were seeking an opponent for Sandoval in the 2008 Republican primary. Spencer indicated to Puhl that he could provide financial support for Puhl’s campaign as well as volunteer support for walking neighborhoods to distribute campaign James Stephen Spencer materials. With regard to financial support, Spencer’s representations to Puhl were very general in nature; Spencer testified that he was charged with the same Puhl’s impression was that Spencer could marshal offenses as Stacy: engaging in organized criminal activity, supporters who would provide financial assistance to the bribery, and money laundering. He confirmed that he was campaign. Puhl also testified that most attorneys are not being compelled to testify under a grant of testimonial inclined to contribute to a campaign against an incumbent immunity. judge, because contributions are listed on the candidate’s State campaign finance disclosure forms. Puhl testified Spencer had an employment background in health care that the maximum campaign contribution that could be administration, but for the past fifteen years has done made to a candidate for a Collin County bench in 2006 independent consulting work in areas ranging from was $2,500 per household. Puhl declined to run as a marketing to finance, with some work involving political, candidate in the election. regulatory, and legislative matters. Spencer had some limited experience in the area of oil and gas, principally involving oil field services and removal of salt water from oil wells. He has no engineering background or college degrees. He lives in Dripping Springs, Texas, which is a Daniel Dodd four and one-half hour drive from Collin County, Texas.

*6 Daniel Dodd, chair of the Democratic Party in Collin Beginning in 1997 or 1998, Spencer became engaged in a County in 2007, testified that in early November 2007, he contentious legal fight with his wife’s parents over rights learned Wooten wanted to run for election as a Collin of visitation with his child and stepchild. Spencer “went County judge. At a meeting with Dodd, Wooten indicated to the legislature” beginning in 2005 to try to amend laws she was considering running for judge of the 380th regarding parental rights that he believes are Judicial District Court against Sandoval, but Wooten had unconstitutional. Spencer is not a registered lobbyist in not decided whether to run as a Democrat or a Texas; his legislative advocacy was in advancement of his Republican. Dodd informed Wooten that if she ran as a personal interests. According to Spencer, he had a Democrat, he could not give her money for signs because conversation in 2007 with Tim Lambert of the THSC, and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

Lambert thought “we’re going to have to unseat some During the meeting, David and Stacy shared with Spencer judges to get their attention around the state, especially on their experience in meeting with legislators and this issue of parental rights.”Spencer indicated the THSC advocating for change in laws relating to parental rights. has between 50,000 and 70,000 dues-paying members and Spencer testified that the “greatest substance” of their he thought he could possibly raise money from THSC conversation was about the issue of parental rights, and members if he ran a candidate against a “bad judge.” The Spencer wanted to do research on David and Stacy’s THSC was the only organization that “got involved” in legislative agenda, which involved shared-custody Wooten’s campaign for election to the 380th Judicial concepts. At the meeting, David and Stacy told Spencer District Court. they had been through a significant, lengthy, and expensive family law battle that was continuing. Spencer In 2007, Spencer met Hank Clements, a registered also testified that during the meeting, he discussed “in lobbyist, who also had political campaign experience. general terms” with Stacy his interest in providing her Clements was very knowledgeable about political consulting services in the following areas: advertising, including purchasing radio broadcasting time and preparation of mail, flier, and sign advertising. 1. Assessment of possible investment in new Spencer talked to Clements about working together on pumping technology; political campaigns, however Spencer knew Clements would not work as a political campaign consultant 2. Analysis of the U.S. electric marketplace, and without compensation. Spencer thought working with potential investment in SmartGrid-related ventures; Clements would be an opportunity to learn from Clements, develop relationships with Clements’s 3. Assistance in assessing and securing counsel in connections, and “make some money,” although Spencer anticipation of and for contemplated litigation; and testified he did not make a lot of money working on the *8 4. Assessment and proposal for family-centered Wooten campaign. Clements’s original quote to Spencer advocacy, with an emphasis on parental rights. for working on a district court judicial campaign was $50,000. Spencer told Clements that there were only According to Spencer, this discussion culminated in an sixty-three days until the primary election and there was Acknowledgment of Engagement letter dated October 1, “no way” compensation of that magnitude “was going to 2007 (the consulting agreement) between Spencer and happen.” Wooten eventually spoke to Clements in the Stacy, which was admitted in evidence. Stacy agreed to latter half of December 2007. Ultimately, Clements pay Spencer $250,000 based on the “overall project,” and worked on the Wooten campaign and was paid $25,000 $150 per hour pursuant to a fee schedule. The term of the for his services. agreement was October 1, 2007 to December 31, 2009. Spencer testified the consulting agreement was drafted *7 Royce Poinsett, general counsel for the Speaker of the sometime in the first half of October 2007 and back-dated Texas House of Representatives, put Spencer in touch to October 1, 2007. He testified he hand-delivered the with David and Stacy in September 2007.6 On September consulting agreement to Stacy in October or early 19, 2007, Spencer emailed David and Stacy. The first November 2007. time Spencer met David and Stacy was at their home in Dallas, Texas on October 2, 2007. That meeting lasted As a result of their meeting, in October or November approximately two to two and one-half hours. Spencer 2007, Spencer reviewed David’s divorce and SAPCR case learned that Stacy had an interest in a family-owned oil file in the 380th Judicial District Court. It was Spencer’s and gas company and also had some independent “determination” after reviewing the case file that investments in the oil and gas industry. There was to be Sandoval was not applying the law correctly, and it was some liquidation of an investment Stacy or her family Spencer’s impression that the SAPCR was being “handled had, and she was going to have “significant proceeds from poorly.” One of Sandoval’s rulings that Spencer found that sale” that she would either have to reinvest or incur “problematic” was a ruling in which Sandoval sanctioned some “pretty hefty capital gains taxes.” In short, Stacy David’s attorney $50,000 to be paid to David’s ex-wife, “had a significant gain that she had to turn around and put Jennifer. to work.”David was an executive in the software industry, and Spencer told David he had clients involved in internet Spencer testified that in the first half of November 2007, technology, including cyber security. Spencer felt that he he decided he wanted to find a candidate to unseat and David “had some common ground on that area of Sandoval as judge of the 380th Judicial District Court, business.” and he acknowledged that David’s divorce and SAPCR were factors in that decision. There were other factors as

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

well: an informal internet poll regarding Sandoval’s candidate to run in the Republican primary against performance, comments of THSC members in Collin Sandoval, and he thought Sandoval was a good target for County, Sandoval’s clearance rate for cases on his docket, a challenger. Spencer had heard the Democratic Party was and Sandoval’s “appellate record.” It appeared to Spencer recruiting Wooten to run for office and, as a courtesy, that Sandoval was a “good target” for a challenger. Spencer wanted to inform Dodd that he was going to try Spencer believed Collin County was a “high profile place to recruit Wooten to run as a Republican. Spencer learned to make a stand on the issue of parental rights,” and a Wooten had declined to run as a Democrat. competitive judicial race in Collin County seemed a good way to make a statement that would “resonate throughout Spencer testified he telephoned Wooten in mid-December the judiciary.” Spencer learned that in the history of 2007, in advance of the January 2, 2008 deadline to file as Collin County, there had never been a challenger to a a candidate for the March 4, 2008 Republican primary. sitting district judge, so Spencer believed he and THSC Spencer told Wooten that he had a “contact” in the area could send a powerful message by unseating a judge they who could get her name out, but Spencer did not mention perceived to be unfriendly concerning parental rights Clements at that point. Spencer told Wooten the campaign issues. would cost $100,000 to $150,000, and Wooten thought that was a reasonable estimate. Spencer told Wooten With regard to identifying potential candidates to run about the support he thought her campaign could garner, against Sandoval, Spencer believed he telephoned several such as endorsements, grassroots support, and volunteers people for recommendations, including Stacy. Spencer walking in neighborhoods and handing out campaign testified that he contacted attorney Puhl regarding running materials. Spencer does not recall if he mentioned the against Sandoval. Spencer told Puhl he could provide THSC. Spencer told Wooten he would do everything he operational support, grassroots support, and could to be supportive of her campaign. Spencer testified organizational support, and Spencer may have generally that most of the estimated $100,000 to $150,000 mentioned the THSC. Spencer told Puhl that he would campaign expense would have to come from Wooten. help him raise money for the race if he committed to run. Spencer told Puhl he thought it would require between On January 2, 2008, Wooten filed as a candidate for the $100,000 and $150,000 to run a “serious challenge.” 380th Judicial District Court and appointed attorney Alma Spencer acknowledged that very few lawyers would want Benavides as her campaign treasurer. Sometime prior to to contribute to a campaign in opposition to Sandoval. January 2, 2008, Wooten called Spencer and asked him to Spencer knew that anyone running against Sandoval serve as her campaign manager. At the time Wooten hired would not raise much money from attorneys before Spencer as her campaign manager, she had not met him in election day and that most contributions to judicial person. Spencer hired an assistant to help him with campaigns are made by lawyers. Spencer thought “other campaign management “after we had a candidate and had people,” like grassroots activists, might contribute money a campaign up and running.” to a campaign against Sandoval, although Spencer did not know any “grassroots activists” in Collin County that he Spencer acknowledged that at the time he was recruiting could rely on for campaign contributions. Puhl declined to Wooten as a candidate for the 380th Judicial District run against Sandoval, and he did not think Sandoval could Court, and when she agreed to run for election, Spencer be defeated. was receiving money from Stacy. He also acknowledged there were probably times when he placed telephone calls Spencer called Puhl’s former law partner, Brian to Stacy and Wooten in close proximity. According to Loughmiller, about running against Sandoval. Spencer Spencer, when he contacted David and Stacy, he did not told Loughmiller that he would help Loughmiller raise reveal details about his relationship with Wooten. Spencer money for the campaign, and Spencer thought he talked to testified he did not provide information to David and Loughmiller about the amount of money required to win Stacy about Wooten’s campaign, and he did not discuss the race. Loughmiller declined to run against Sandoval, his “business” with David and Stacy. He did mention to and he did not think Sandoval was going to be defeated in David and Stacy that he was involved in a judicial the next election cycle. campaign in Collin County and that they would not be involved in it. He also testified Stacy knew he was *9 Spencer testified that Wooten’s name, as a potential working on a campaign, but he did not know if he candidate to run against Sandoval, came from a “couple identified it as the Wooten campaign. He told Stacy it was of directions.” Loughmiller may have mentioned Wooten. a contested judicial primary in Collin County, but he In mid-November or mid-December 2007, Spencer testified that it would not be difficult to figure out which contacted Dodd. Spencer told Dodd he was looking for a campaign because there were not many contested races.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

David knew Wooten was running for judge. David asked available to the campaign are being used. In a February 5, Spencer about the campaign, but Spencer told David that 2008 email from Spencer to Wooten and Clements, he could not discuss it with him because David had a case Spencer stated that Sandoval “raised some money, but I pending in the 380th Judicial District Court. When David don’t think he’s in a position to match our inquired further about why he could not be involved in resources.”Spencer testified that in that email, he was Wooten’s campaign, Spencer told him it was because speaking not only of Wooten’s campaign account, but Spencer was working with Stacy, Spencer and David also Wooten’s line of credit. However, Spencer testified were friends, and Wooten was Spencer’s client. David that without Stacy’s transfers of money to him before picked up Wooten campaign signs and placed them in his February 5, 2008, Spencer might not have been able to yard, and Spencer went to David’s office at some point pay Clements or the other expenses of Wooten’s during Wooten’s campaign and saw a Wooten campaign campaign incurred by that date or “we might have had a sign there. line of credit early.”

Spencer testified that the only thing he spoke to Wooten The first transfer of money from Stacy to Spencer about that would be closely related to his business with occurred on January 4, 2008, in the amount of $50,000. David and Stacy was the issue of parental rights. When The payment, which was made without Spencer providing asked whether Wooten knew anything about David and Stacy an invoice for consulting services, occurred with Stacy, Spencer testified that he did not believe so. While only two months remaining until the Republican primary. Spencer indicated he spoke with Wooten at length about Before receipt of that wire transfer, Spencer had $2.39 in campaign strategy, he testified he did not talk to her about his bank account. Spencer paid Clements $7,500 on the money he was receiving from Stacy because one had January 7, 2008 and $7,500 on January 8, 2008. Spencer nothing to do with the other. Spencer did not think he was testified that without the wire transfer from Stacy, he placing Wooten in a difficult position; he thought he was would not have had the money to pay Clements’s $15,000 protecting her by “partitioning off” his business fee, and Wooten would have had to pay Clements’s fee relationship with David and Stacy from Wooten’s directly. political campaign. Spencer denied stating that he “owned” Wooten or that Wooten was going to “fix” The second transfer of money from Stacy to Spencer David’s divorce. occurred on January 30, 2008, in the amount of $25,000. The third transfer of money from Stacy to Spencer *10 Between January 1, 2008 and March 15, 2008, Stacy occurred on February 14, 2008, in the amount of $25,000. paid Spencer $150,000 in the form of checks and wire The fourth transfer of money from Stacy to Spencer transfers.7Spencer testified this compensation related to occurred on February 26, 2008, in the amount of $25,000. his consulting agreement with Stacy, however he indicated the compensation was for services that were not *11 After the March 4, 2008 Republican primary, Spencer yet performed but were “in progress.” According to and Clements were in contact on March 7, 2008 regarding Spencer, he received these payments for his services at Clements’s $10,000 bonus payable as a result of the same time he was serving as campaign manager for Wooten’s success in the primary election. On March 7, Wooten. 2008, the fifth transfer of money from Stacy to Spencer occurred in the amount of $10,000. On March 6, 2008, Spencer testified that his “champagne” budget for a Spencer’s bank balance was $2,407.69. After the transfer successful Wooten election campaign was $149,200. of $10,000, Spencer’s bank balance was $11,707. Within Spencer acknowledged at trial that without Stacy’s an hour of Stacy’s March 7, 2008 wire transfer of $10,000 money, he probably would not have been able to pay for to Spencer’s account, Spencer’s wife purchased a all of Wooten’s campaign expenses. According to cashier’s check for payment of Clements’s $10,000 Spencer, Stacy’s $150,000 was “put to work to run” victory bonus. Spencer testified he did not recall if he was Wooten’s campaign; however, at that point, he was in contact with David regarding the March 7, 2008 wire spending “his money” on Wooten’s campaign. Spencer transfer. The sixth transfer of money from Stacy to testified he believed Wooten would pay him back and she Spencer occurred on March 14, 2008, in the amount of did. Spencer testified that Wooten told him she had $15,000. opened a line of credit to “back” all of her campaign expenses. Spencer wanted to avoid using that line of When Wooten announced her candidacy, Spencer and credit because, when reports of campaign expenditures Clements advised her that it would cost a minimum of are filed with the Texas Ethics Commission (Ethics $100,000 to be competitive in the race. Spencer testified Commission), it apprises the opponent of how funds that he billed Wooten about $111,000 for campaign

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

expenses. Copies of Spencer’s invoices and his “working before the date of the engagement letter. Spencer’s copy” of bills to Wooten’s campaign were admitted in consulting agreement with Stacy and the TDI engagement evidence. Spencer testified that at the time Wooten was letter each indicate the term of the agreement ended on raising money after her successful political campaign, she December 31, 2009. Spencer believed Stacy paid him no still owed Spencer $80,000. Spencer invoiced Wooten’s money in connection with the consulting agreement after campaign $4,536.75 on February 20, 2008, $2,409.25 on March 15, 2008. March 4, 2008, $10,009.25 on March 23, 2008, $12,000 on April 16, 2008, $15,000 on April 25, 2008, and $5,000 Spencer testified that he made mistakes in preparing on May 26, 2008. On May 29, 2008, Spencer invoiced Stacy’s consulting agreement. The consulting agreement Wooten’s campaign $84,368.75, with credits and dated October 1, 2007, and the TDI Engagement Letter adjustments of $51,929.82 for payments between for Outsourced Marketing Services dated October 15, February 13, 2008 and April 28, 2008, leaving a balance 2009, both contain an identical phrase relating only to due of $37,438.93. Spencer invoiced Wooten’s campaign TDI: “[a]ny additional time spent on TDI’s behalf is part $9,241.50 on June 3, 2008. By invoice dated July 1, 2008, and parcel to, and inclusive of this engagement.”Spencer Spencer’s cumulative bill to Wooten showed she still initially testified that in October 2007, he did not know owed Spencer $33,369.91. the TDI company name, but he later changed his testimony and indicated that David gave him a business In the cover letter forwarding Spencer’s May 29, 2008 card at their October 2, 2007 meeting. Spencer denied that invoice to Wooten, he advised that “we recognize your the reason Stacy’s consulting agreement and the TDI July filing deadline with the Ethics Commission, and will engagement letter contain the same language concerning render a supplemental Invoice to your office in “additional time spent on TDI’s behalf” was that when he June.”Spencer testified he knew Wooten needed received a subpoena and produced documents to the State information regarding amounts spent or incurred for the in November 2009, he fabricated Stacy’s consulting benefit of her campaign in order to report these items agreement to “paper” the $150,000 Spencer received from properly on her campaign finance report filed with the Stacy. Spencer denied that some of the work the Ethics Commission. Spencer believed a candidate is consulting agreement indicates he was to perform for required to report not only campaign contributions and Stacy was actually work he was to perform pursuant to his expenses on campaign finance reports, but also must list Engagement Letter for Outsourced Marketing Services funds the candidate holds in a campaign account on a with TDI; he testified that he thought Stacy was interested given date. Spencer testified he did not prepare Wooten’s in the same subject matter because she and David had an campaign finance reports, but when asked, he provided equity interest in TDI. the information she needed to prepare the reports. Spencer also testified that he made mistakes in the Wooten did not have to draw down on her line of credit paperwork supporting invoices to Stacy. For example, until sometime after the March 4, 2008 Republican Spencer testified that, according to the schedule of primary. While Spencer testified he did not know whether payments due under the consulting agreement with Stacy, Wooten drew on her line of credit for the first time on she was to pay him $25,000 “per project,” and Stacy August 19, 2008 when she paid Spencer $33,369, “roughly” paid $100,000 according to the schedule. An documents admitted in evidence indicate Wooten’s line of August 1, 2008 “summary” invoice from Spencer to Stacy credit was opened on August 13, 2008. was admitted in evidence. That summary shows that for the “balance” of $100,000, credits were applied for the *12 Spencer’s consulting agreement with Stacy, dated following transfers of money to Spencer: $25,000 on October 1, 2007, was admitted in evidence. Also admitted February 5, 2008; $25,000 on February 14, 2008; $15,000 in evidence was Spencer’s October 15, 2009 on March 4, 2008; and $10,000 on March 7, 2008. “Engagement Letter for Outsourced Marketing Services” Spencer did not include the $25,000 transfer on February relating to consulting services to be provided by Spencer 26, 2008, however that transfer is handwritten on Stacy’s to TDI, David’s employer. Spencer testified regarding copy of the “summary” invoice. The “summary” invoice certain aspects of those two documents. The consulting did not include the January 4, 2008 wire transfer of agreement was not signed by Stacy and was dated prior to $50,000 from Stacy. the date Spencer testified he first met Stacy on October 2, 2007. The TDI Engagement Letter for Outsourced One of the “projects” for which Spencer testified he was Marketing Services was signed by William Johnson, paid $25,000 or more by Stacy involved possible equity Chief Executive Officer of TDI, on October 14, 2009, investment by Stacy in Down Hole Injections (DHI). however the date of Johnson’s signature was the day Spencer provided information to Stacy concerning DHI

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

which included eighteen pages of DHI financial Benavides, and Spencer then called David. At 11:03 a.m., statements contained in a private offering memorandum Spencer phoned David. David then called Spencer and given to Spencer in mid–2007 by an individual living in spoke to him for several minutes. Benavides returned Dripping Springs, Texas. By letter dated April 7, 2008, Spencer’s telephone call. Spencer then called David. Spencer advised Stacy he did not believe DHI was a good investment for her. Another “project” for which Spencer Spencer acknowledged at trial that David contacted him testified he was paid $25,000 by Stacy involved analysis to advise him that an answer had been filed for Jennifer in of the rural electricity marketplace. By letter dated July the SAPCR by Benavides. Spencer testified that he “may 10, 2008, Spencer sent Stacy a summary analysis of the have known” that for a period of time, Wooten would not “U.S. Electric Co–Op Market and Potential Venture to preside over cases in which Benavides was counsel. Acquire Broadband Service Delivery Rights.”Spencer Spencer stated that he contacted Benavides regarding her acknowledged that the contents of that letter were taken in appearance on behalf of Jennifer. Spencer indicated that large part from an article published in the Harvard Journal he cautioned Benavides about involvement in the of Legislation. Spencer testified he also provided SAPCR; specifically, he warned her “not to go in” the information to Stacy in July 2008 concerning new case. Spencer said he was giving Benavides “a read on the pumping technology, the U.S. electric marketplace, and case [he] thought she was getting into” and that he ventures related to Smart–Grid technology, based upon thought the case was a “real mess.”9Benavides asked materials he had previously received.8With regard to the Spencer if she could call him back with the law firm’s “project” concerning parental rights for which Stacy was managing partner, Basinger, on the line. Benavides and to pay Spencer $25,000, a power point presentation was Basinger called Spencer, and Spencer told them they did introduced in evidence that described creation of a not want to be on this case. for-profit internet service provider that could “sustain advocacy of parental rights,” and, according to the *14 Spencer and David spoke on the phone on February presentation, would gross $46,000,000 in revenue during 28, 2009. Spencer testified he did not speak with Wooten a one year period, although Spencer testified he did not on February 26, 27, 28, or March 1, 2009. A hearing was have experience creating an internet service provider. scheduled in the SAPCR before Wooten on March 2, 2009. There were a number of text messages between *13 Spencer testified that in early 2008, he began doing Spencer and David on March 2, 2009. A transcript of the work with TDI, which he then would have known was March 2, 2009 hearing was admitted in evidence. As she David’s employer. The first time Spencer was paid by began the hearing, Wooten stated: TDI was in July or August 2008. He was initially asked to obtain a release of a lien on an account. Later, he was I had a chat with Judge Oldner, our asked to retain a lobbyist on behalf of TDI and to obtain administrative judge, about whether sales contracts. An August 26, 2008 letter from Spencer or not it was appropriate for me to to TDI regarding “Proposed Legislative/Regulatory hear this, especially in light of Ms. Strategic Plan” contains identical language to a July 10, Benavides appearing on the case. 2008 communication from Spencer to Stacy regarding Not to blame Ms. Benavides, but I “Analysis of the U.S. Electric Co–Op Market and was with her firm up until right Potential Venture to Acquire Broadband Service Delivery about the end of last year. So, for Rights.” various reasons, I have to recuse myself off this case. Spencer testified regarding the events surrounding Wooten’s recusal in March 2009 from David’s SAPCR. Wooten signed a recusal in the SAPCR on March 4, 2009. Benavides, Wooten’s campaign treasurer and an associate with the law firm with which Wooten practiced before her Spencer testified he did contact Wooten in early March election, filed an answer on behalf of Jennifer on 2009 prior to her recusal. He told Wooten he was going to February 27, 2009 at 9:59 a.m., in advance of a March 2, be in the area on a trip and wanted to take her to lunch. 2009 hearing before Wooten. According to the phone Records introduced in evidence established Spencer also records admitted in evidence, David phoned Spencer at called the office of Judge Oldner during this period of 1:35 p.m. and 8:30 p.m. on February 26, 2009. On time, and Spencer testified he did not dispute calling February 27, 2009 at 8:56 a.m., Spencer received a text Oldner’s office. He testified that at some point he tried to message from David. At 9:07 a.m., Spencer sent a text recruit Oldner to run for an appellate bench, although he message to Benavides. At 9:46 a.m., Spencer and David did not know whether that was the subject of this exchanged text messages. Thereafter, Spencer telephoned particular phone call. Spencer testified that he did not

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

think it was accurate that Oldner would have control over TO MY STEP CHILDREN’S “where David’s case [was] going” after Wooten’s recusal. LITIGIOUS/ABUSIVE/NARCISSIsTC[sic]/GOLD After Wooten recused herself in the SAPCR, Spencer DIGGING MOTHER” and inquired why legal fees understood there was a case involving Stacy and Suster “defending my home and family” could not be deducted that remained pending in Wooten’s court, and Spencer from taxable income on her 2007 income tax return. acknowledged that he discussed that case with David. Kedzie testified that none of Stacy’s legal fees relating to divorce and child custody issues were actually deducted A June 9, 2009 email exchange between David and from taxable income on her income tax returns. Spencer was admitted in evidence regarding a June 8, 2009 decision of the United States Supreme Court in Kedzie testified she was unaware that Stacy had hired Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 Spencer to perform consulting services. None of the S.Ct. 2252, 173 L.Ed.2d 1208 (2009), a case involving backup documentation for calendar years 2007 and 2008 judge recusal. Spencer’s email to David included the income and expense that Stacy provided to Kedzie for following text from an article about the decision: purposes of income tax return preparation contained any indication Stacy paid Spencer for consulting work during Today’s decision by the U.S. that period. According to Kedzie, if Stacy was unsure Supreme Court that judges who about how to address the tax aspects of an expenditure or receive campaign contributions deduction, Stacy would typically contact Kedzie for large enough to create the advice; and if Stacy had needed any advice on how to appearance of bias should recuse address the tax aspects of a $150,000 consulting themselves.... In Caperton v. agreement, Stacy would most likely have contacted Massey, the nation’s high court Kedzie because Kedzie prepared Stacy’s personal and ruled 5–4 that because a West business tax returns. Stacy did not seek advice from Virginia Supreme Court justice Kedzie concerning the consulting agreement with received $3 million in campaign Spencer. contributions from an energy company executive, the judge should not have taken part in a decision affecting the executive’s company. Kyle Basinger

Attorney Kyle Basinger testified that Wooten previously Spencer emailed David that “I think you’ll understand had operated a Collin County office for Basinger’s law why I’m interested in this subject matter.”David then firm. Basinger’s law firm formalized separation from emailed “the entire story” to Spencer. Spencer denied that Wooten’s Collin County office on September 1, 2008, the reason he and David were interested in the news after Wooten won the Republican primary for judge of the article was because Stacy’s money was used to finance 380th Judicial District Court. Wooten’s campaign. Before the 2008 election, Basinger spoke with Wooten several times about her interest in running for judge in Collin County. Initially Wooten talked to Basinger about Deanna Kedzie running as an Independent. Basinger told her he saw very little chance of her winning a Collin County judicial *15 Deanna Kedzie, a certified public accountant, election as an Independent. Basinger learned of Wooten’s testified that her practice focuses upon tax accounting and decision to run for judicial office just before the filing Stacy was her client. Kedzie testified about a 2008 deadline in January 2008. Basinger was concerned that it income and expense report dated March 16, 2009 that was seemed a last minute decision by Wooten. Basinger talked prepared by Stacy. According to Kedzie, the report to Wooten about the difficulty of raising campaign funds indicates legal fees of $226,602.96 were incurred in 2008 to oppose an incumbent judge in Collin County, and told relating to divorce and child custody issues. Kedzie her that it was extremely difficult to defeat an incumbent testified that Stacy wanted to deduct from 2008 taxable judge in Collin County. income a total of $226,773 for legal and professional fees. Kedzie also testified about a March 31, 2008 email to her Benavides, an associate in Basinger’s law firm, served as from Stacy, relating to Stacy’s 2007 tax return, in which Wooten’s campaign treasurer. After her election, Wooten Stacy wrote that her legal expenses were high “THANKS requested that members of Basinger’s law firm not appear © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

in her court for a period of nine months in order to avoid the appearance of impropriety. With respect to a Basinger Basinger and Benavides are listed as counsel on an April firm case pending in Sandoval’s court at the time Wooten 23, 2009 pleading filed on behalf of Jennifer in the assumed office, Basinger testified that his office would lawsuit filed by Stacy against Jennifer and Suster that was contact Wooten’s court coordinator to advise her of the pending before Wooten. Basinger filed a motion for pending case, and the case would be ministerially protection regarding Stacy’s attempt to depose Jennifer. transferred to another Collin County judge. Wooten denied Jennifer’s motion for protection. On May 8, 2009, Basinger filed a motion to recuse Wooten in *16 Basinger represented Jennifer with regard to a motion Stacy’s lawsuit against Jennifer and Suster. Basinger to modify filed in the SAPCR involving David and anticipated the motion to recuse would be granted because Jennifer that was pending in Wooten’s court. On February Wooten had recused herself previously with regard to the 27, 2009, at 9:59 a.m., Basinger’s law firm filed pleadings motion to modify filed in the SAPCR involving David on behalf of Jennifer concerning the motion to modify. and Jennifer, and there were overlapping facts in Stacy’s Basinger received a telephone call from Spencer at lawsuit against Jennifer and Suster. approximately 10:30 a.m. on February 27, 2009. Basinger was aware Spencer had served as Wooten’s campaign Unlike the prior motion to recuse, however, Wooten did manager. Basinger testified this was the only time he had not voluntarily recuse herself from Stacy’s lawsuit against received a telephone call from Spencer, and he was Jennifer and Suster. Judge G. Calhoun, Jr. was appointed surprised Spencer was calling him and that Spencer had to hear the motion to recuse Wooten in that matter. On his telephone number. Basinger had only met Spencer one June 29, 2009, Basinger forwarded correspondence to time prior to this telephone call. Spencer asked that Wooten withdrawing Jennifer’s motion to recuse. Basinger consider withdrawing from the SAPCR Basinger testified that his law partner had met with involving David and Jennifer. Spencer’s position was that Jennifer, and the decision had been made to withdraw the Basinger needed “to get off this case.” Basinger told motion to recuse Wooten. Basinger testified that he Spencer he could not “just tell me I need to get off the wanted Wooten to continue as the judge presiding over case.”Spencer told Basinger that he did not want to be a this case, and he thought she would be a “great judge” on part of this case and that Basinger had “to trust [him] on the case. However, Basinger testified that, at that time, he that.” Basinger told Spencer that he had to give Basinger had no idea of any allegation that Spencer helped finance “more than that.” Spencer said there was an ongoing Wooten’s campaign, and had he known of and believed investigation of Sandoval in Austin, but Basinger told such an allegation, it would have affected his view of Spencer that Sandoval was not hearing the SAPCR. Wooten. Basinger testified that after the motion to recuse Basinger told Spencer that he had given Basinger no Wooten was filed in Stacy’s lawsuit against Jennifer and reason to get off the case, and that was “pretty much the Suster, Stacy nonsuited her case. way we left it.”Basinger continued to represent Jennifer after the phone call from Spencer.

On March 3, 2009, Basinger’s law firm filed a motion to recuse Wooten in connection with the pending motion to Hank Clements modify the SAPCR. Basinger’s and Benavides’s names were listed as counsel on that motion. On March 4, 2009, *17 Hank Clements, an attorney and registered lobbyist in Wooten granted the motion to recuse. Texas, testified that his firm provides political and legislative consulting services, including lobbying. Jennifer approached Basinger regarding his firm Clements also provides services to candidates for public representing her in two additional civil litigation matters, office, including campaign management, direct mail one pending in Collin County and the other pending in advertisement, media strategies, and speech preparation. Dallas County. The civil litigation in Collin County was Prior to 2008, Clements had worked on approximately six related to the SAPCR between David and Jennifer; the judicial campaigns. case was filed by Stacy against Jennifer and Suster, who was attempting to collect attorney’s fees Sandoval had In the spring of 2007, Clements met Spencer in the office ordered David to pay Jennifer in the SAPCR. That lawsuit of a legislator. Clements believes Spencer was there with was originally filed in the County Court at Law No. 4 of regard to a family law issue. Spencer told Clements he Collin County. Because it was related to the SAPCR was interested in managing political campaigns, involving David and Jennifer, the case was transferred to advocating for parental rights legislation, and getting “bad Wooten’s court in which the SAPCR case was pending. judges” off the bench. It was Clements’s understanding from speaking with Spencer in the fall of 2007 that © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

Spencer wanted to field a candidate in a judicial race. Clements indicated that Spencer provided turnkey Spencer specifically asked if Clements had ever managed management of Wooten’s election campaign. a campaign in Collin County, and Clements advised Spencer that he had. Spencer told Clements there were a *18 In other campaigns, Clements assisted the candidate number of judges that had been targeted by a group he in preparing campaign finance reports to be filed with the belonged to because the judges were opposed to the Ethics Commission. He was not asked to review family law agenda the group was trying to advocate at the Wooten’s campaign finance reports. According to legislature. Clements recalled specifically that Spencer Clements, campaign finance reports generally itemize the wanted to “go after” and defeat Sandoval. Clements amount of campaign contributions and expenditures. understood Spencer had been unable to find a candidate to Campaign finance reports filed with the Ethics run against Sandoval, but Spencer identified Wooten as a Commission are public records, and the public can view potential candidate who was considering entering the the reports to see how candidates raised and spent their race. Spencer wanted Clements to talk to Wooten campaign funds. regarding the magnitude of such a campaign. Clements spoke on the telephone with Wooten toward the end of The bank records for the “Suzanne H. Wooten for Judge 2007, and he met with her on a Saturday in December Campaign” were admitted in evidence. Those records 2007. Clements gave Wooten an idea of the time indicate that on February 4, 2008, the balance in the commitment and cost required for an effective political campaign account was $2,366, and on February 5, 2008, campaign. Clements also told Wooten it would require a the balance in the account was $1,933. Clements substantial commitment on Wooten’s part to defeat an recollects he received a telephone call from Spencer incumbent judge, and that the campaign would cost regarding how much money Sandoval had raised in his $60,000 to $70,000 or more. campaign and that Spencer was “not impressed” with the amount. Sandoval’s Campaign Finance Report filed with By late December 2007 or early January 2008, Clements the Ethics Commission on February 4, 2008 was admitted knew Wooten was going to run against Sandoval in the in evidence. That report reflected Sandoval had raised Republican primary for judge of the 380th Judicial $12,575 in campaign contributions, had expended District Court. The primary election was scheduled for $8,997.08, and on February 4, 2008, his campaign early March 2008, and Clements testified that was a short account had a balance of $4,231.37. Spencer sent an email time in which to execute the campaign. Although Spencer to Wooten and Clements regarding Sandoval’s February had never managed a political campaign, Clements 4, 2008 Campaign Finance Report. In that email, Spencer testified Spencer wanted to run Wooten’s campaign and said Sandoval had “raised some money,” but Spencer did Wooten hired Spencer as her campaign manager. Spencer not think Sandoval was “in a position to match our hired Clements as a subcontractor to handle media, resources.”Clements did not know what Spencer meant by prepare a campaign plan, develop overall strategies, and his reference to “resources” in that email. Spencer did not design a direct mail plan. Clements was to be paid tell Clements that there were contributors Spencer could $15,000 for the scope of work and a $10,000 victory go to for money, but that was Clements’s interpretation of bonus if Wooten won the race. Clements received the email. It sounded to Clements like there were some cashier’s checks for payment of his fees as follows: contributors who could be “tapped” in order to raise more $7,500 on January 7, 2008, $7,500 on January 8, 2008, campaign funds than Sandoval. Clements testified he had and $10,000 on March 7, 2008 after Wooten defeated no role in raising money for Wooten’s campaign or in Sandoval in the March 4, 2008 Republican primary. managing the finances of the campaign.

Clements did not send his bills directly to Wooten. Records regarding paid political advertisements for the Clements did not discuss individual campaign Wooten campaign on local radio stations were admitted in expenditures with Wooten; that would have been done by evidence. For example, a $6,000 cashier’s check from Spencer and the campaign treasurer. Clements testified Spencer for payment for radio advertisements airing on a that it is important for a campaign manager to obtain the radio station from February 25 through February 28, and candidate’s “buy off” on individual campaign on March 3, 2008, was admitted in evidence. The invoice expenditures because the expenditures must be reported to for the radio advertisements was dated March 10, 2008. A the Ethics Commission. According to Clements, $4,000 cashier’s check from Spencer for payment for management of a campaign is characterized as “turnkey” radio advertisements airing on another radio station from when the candidate pays a fee to a campaign manager or February 25 through February 28, and on March 3, 2008 political consultant, and the manager or consultant is then was also admitted in evidence. The contract confirmation responsible for paying vendors and service providers. for that radio advertising was dated February 22, 2008,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

and the invoice for that radio advertising was dated March campaign finance reports filed by a judicial candidate are 10, 2008. An invoice from Spencer to Wooten’s campaign public records, and the Ethics Commission posts those for the $6,000 and $4,000 radio advertisement expenses reports on its internet website. was dated March 23, 2008. A cashier’s check dated February 26, 2008 from Spencer in the amount of Steusloff testified that contributions to a judicial $14,454.25 was presented as payment for radio campaign must be individually itemized on the campaign advertisements for Wooten’s campaign that aired on three finance report if the contribution, whether money or other radio stations from February 24 through March 3, in-kind, exceeds $50. A candidate must also disclose on 2008, pursuant to contracts entered into at the end of the campaign finance report outstanding loans to a February 2008. A February 4, 2008 cashier’s check from judicial campaign. Steusloff explained that campaign Spencer to Cartwright Signs and T–Shirt Printing in the expenditures of over $50 must be itemized on the amount of $4,036.75 was admitted in evidence. campaign finance report. For disclosure purposes, an Documents on which Wooten gave approval for campaign expenditure is deemed made when the amount of the expenditures and edited or approved campaign expenditure is readily determinable. Steusloff testified advertisements and media materials were admitted in that, in 2008, when an individual or entity made an evidence. Clements testified with regard to this evidence expenditure of more than $100 that benefitted, but was that there is nothing improper with Spencer paying a independent from, a campaign, such as paying for campaign expense and billing the candidate later for that advertising that benefitted a candidate, the individual or expense. Although not holding himself out as an expert on entity was required to file a report with the Ethics campaign finance reports, Clements testified that a Commission disclosing the expenditure and send a report campaign manager could bill the candidate later for an of the expenditure to the candidate. According to invoice paid by the campaign manager, but he believed Steusloff, if an employee of a candidate makes an the law required that the expense incurred be posted on expenditure for the campaign, the expenditure would be the candidate’s campaign finance report. Clements further itemized on the campaign finance report as if the testified that even if a consultant decided not to send a expenditure had been made by the candidate. If, however, candidate a bill, the candidate nevertheless would be the candidate hired an independent consultant and required to itemize campaign expenses on the campaign delegated authority to the consultant to make decisions finance report covering the time period the expenses were concerning campaign expenditures without the incurred. candidate’s approval, Steusloff testified the candidate would disclose on the campaign finance report payments made to the consultant for consulting services but not itemize the individual expenditures made by the consultant to specific vendors. Ian Steusloff Steusloff testified that in judicial races, there are limits on *19 Ian Steusloff, an assistant general counsel for the campaign contributions. The limit depends on the Ethics Commission, testified that the Ethics Commission population of the judicial district. If the population in the is an agency that, among other things, administers laws judicial district is between 250,000 and one million, as in relating to campaign finance, ethics disclosure, and Collin County in 2008, the contribution limit is $2,500. regulation of lobbyists. It also serves as an enforcement According to Steusloff, if an individual lends money to a agency. candidate specifically to support the candidate’s campaign, the loan counts against the campaign Steusloff testified regarding filings with the Ethics contribution limit for that individual; however, that is not Commission that candidates and officeholders are the case when the candidate obtains a campaign loan from required to make. Candidates for election to a judicial a bank. Additionally, there are limits on a candidate’s office are required to file campaign finance reports. Those campaign expenditures, which apply whether the reports show campaign contributions, campaign candidate is using campaign contributions or personal expenditures made from a campaign account, campaign funds. When a candidate pays campaign expenditures expenditures made from personal funds, and loans to a from personal funds, there is a limit on reimbursement of campaign. Typically candidates must file campaign those expenditures from campaign contributions; the limit finance reports on January 15th and July 15th. If opposed is five times the maximum permissible campaign in an election, candidates must also file campaign finance contribution. Therefore, where the campaign contribution reports thirty days and eight days before the election.10 limit for a judicial race is $2,500, the total amount of Candidates are required to swear the information provided reimbursement from campaign contributions of a in a campaign finance report is true and correct. The © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

candidate’s out-of-pocket campaign expenditures is auditor employed by the office of the Texas Attorney $12,500. General, testified that he investigates allegations and complaints of white-collar crime relating to public Wooten’s campaign finance reports were admitted in integrity and money laundering. His investigation of evidence. Wooten’s Campaign Finance Report for the Stacy included review of bank records; phone records; period January 25, 2008 through February 23, 2008 campaign finance reports; credit card statements and indicated she had received a total of $10,425 in campaign documents establishing a credit card account; invoices; contributions, with total political expenditures of payments made by Wooten to Spencer; and records of $11,734.41. Wooten’s Campaign Finance Report for the emails and other forms of communication. period February 24, 2008 through June 30, 2008 indicates she received $59,755. 19 in campaign contributions and A chart created by Swihart containing a summary of the expended $65,515.91. Wooten’s January 11, 2009 evidence he relied upon was admitted in evidence. That Campaign Finance Report filed for the period July 1, chart contained a summary of bank records, invoices for 2008 to December 31, 2008 indicates she received services or products provided to Wooten’s campaign, campaign contributions of $5,150 and expended transfers of money from Stacy to Spencer, the dates when $42,419.91. products or services benefitting the Wooten campaign were purchased or rendered, and the dates Spencer *20 Wooten’s January 11, 2009 Campaign Finance invoiced Wooten’s campaign. The summary of the Report indicates payments to Spencer in the amounts of evidence spans the period of January 1, 2008, the day $1,500 and $7,550 for “turnkey mgmt svcs fees and before Wooten filed her candidacy for judge of the 380th costs-per invoice[s].” Earlier campaign finance reports Judicial District Court, and August 29, 2008, when and amended campaign finance reports filed by Wooten Wooten wrote a check in the amount of $33,369.91 from in 2009 disclose the following payments to Spencer: an her line of credit to Spencer. The records Swihart August 28, 2008 payment in the amount of $33,369, 91 reviewed establish Spencer made six deposits to his bank for “turnkey mgmt svcs fees and costs—per invoice”; a account of funds transferred to him by Stacy in the form February 13, 2008 payment in the amount of $4,002.32 of wire transfer or check. for signs and fees; a February 22, 2008 payment in the amount of $4,527.50 for campaign material and fees; a On January 3, 2008, Spencer had $2.39 in his bank March 7, 2008 payment in the amount of $2,400 for a account and Wooten had $25 in her campaign account. direct mailer; a May 29, 2008 payment in the amount of On January 4, 2008, $50,000 was deposited in Spencer’s $5,000 for “turnkey management svcs fee and costs—per bank account from Stacy’s first transfer of money to him. invoice[s]”; June 24, 2008 payments of $5,241.50 and Without the money transferred by Stacy to Spencer on $2,700 for “turnkey mgmt svcs fees and costs—per January 4, 2008, Spencer did not have funds in his bank invoice”; a June 30, 2008 payment in the amount of account, and Wooten did not have funds in her campaign $7,550 for “turnkey management services fees and account, for Spencer to make payment by cashier’s check costs—per invoice”; and a June 30, 2008 payment of to Clements on January 7, 2008 in the amount of $7,500 $1,500 for “turnkey management services fees and and on January 8, 2008 in the amount of $7,500. On costs—per invoice.”The campaign finance reports also January 23, 2008, Spencer had a balance of $7,656.31 in include campaign expenditures for “CBS radio buy—per his bank account remaining from the January 4, 2008 invoice” on March 31, 2008 in the amount of $10,000, transfer of money from Stacy, $16,856.37 having been “WBAP radio buy fee” on April 17, 2008 in the amount spent by Spencer on Wooten’s campaign. of $12,000, and “radio buy and direct mail—per invoice” on April 28, 2008 in the amount of $14,000. A campaign *21 On February 4, 2008, a payment from Stacy to finance report reflects a “personal loan” from Wooten to Spencer in the amount of $25,000 was posted to the campaign on August 28, 2008 in the amount of Spencer’s bank account. Before this deposit, Spencer had $33,369.91, matching the August 28, 2008 payment of an account balance of $5,545.51, and Wooten had a $33,369.91 to Spencer for “turnkey mgmt svcs fees and balance of less than $3,000 in her campaign account. costs—per invoice.” After that deposit, the balance in Spencer’s bank account was $25,692.30. The records show that on February 5, 2008, Spencer began using the $25,000 for Wooten’s campaign, including an expenditure of $2,345 for an advertisement in the Plano Profile magazine, and Kyle Swihart payments of $4,036.75 and $3,877.32 to Cartwright Signs. Without Stacy’s February 4, 2008 payment of Kyle Swihart, a certified fraud examiner and a forensic © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

$25,000 to Spencer, these campaign expenses could not after Wooten became judge of that court. have been paid from either Spencer’s bank account or Wooten’s campaign account. *22 At 3:40 p.m. on January 2, 2008, Wooten filed as a candidate for the 380th Judicial District Court. Moments On February 13, 2008, Spencer had $1,180.97 in his bank before that filing, Wooten spoke to Spencer by telephone. account and Wooten had $5,885.06 in her campaign After Wooten filed as a candidate, Spencer communicated account. On February 15, 2008, another $25,000 check with David. Between 6:49 p.m. and 9:45 p.m. that night, from Stacy was posted to Spencer’s bank account. After Spencer communicated with David on David’s cell phone, deposit of that check, Spencer’s bank balance was with Wooten on her cell phone, and with David, Stacy, or $25,000.92. Spencer used the money in his account after both, on the telephone at the Cary home. that deposit to purchase cashier’s checks on February 20, 2008 totaling $10,000 to pay invoices for radio At 10:17 a.m. on January 3, 2008, Paladini Financial advertisements. Absent the $25,000 from Stacy, neither requested a third-party wire transfer from one of Stacy’s Spencer’s bank account nor Wooten’s campaign account accounts to Spencer in the amount of $50,000.11 There had sufficient funds for payment of the radio stations’ were two attempts by Spencer to reach David and Stacy’s advertising invoices. home phone during that day, and David spoke to Spencer from 1:13 p.m. to 1:23 p.m. At 4:49 p.m., Stacy was sent On February 26, 2008, a $25,000 wire transfer from Stacy new wiring instructions because the earlier wire transfer posted to Spencer’s bank account. Prior to that deposit, could not be completed. On January 4, 2008, the date of Spencer had $5,565.18 in his bank account and Wooten the first wire transfer to Spencer from Stacy, Spencer had had $5,166.58 in her campaign account. The day Stacy’s three telephone communications with someone on David wire transfer was made, Spencer made additional radio and Stacy’s home phone. Swihart assumed those advertisement purchases in the amount of $14,454.25, as conversations were with Stacy as they occurred during the well as payments to the THSC Political Action work day; David worked outside the home and Stacy had Committee for a mailer and to an assistant. Without the an office in her home from which she worked. After the $25,000 payment from Stacy, Spencer did not have wire transfer of $50,000 was posted to Spencer’s account sufficient funds in his bank account, and Wooten did not at 4:34 p.m., Spencer telephoned Wooten’s office. have sufficient funds in her campaign account, to pay Thereafter, there was a brief telephone call to Spencer those campaign expenses. from David.

On March 7, 2008, after the March 4, 2008 Republican On January 29, 2008, the night before the second payment primary, Stacy wire-transferred a fifth payment to by Stacy to Spencer, Spencer telephoned David’s cell Spencer in the amount of $10,000. At the time of that phone. Immediately thereafter, either David or Stacy transfer, Spencer had $11,707 in his bank account, and telephoned Spencer from David and Stacy’s home phone. Wooten had $2,710.08 in her campaign account. Spencer then telephoned Wooten. After the telephone call Approximately one hour after the $10,000 wire transfer, to Wooten, Spencer telephoned David and Stacy’s home. Spencer purchased a cashier’s check in the amount of Stacy made a second payment to Spencer on January 30, $10,000 made payable to Clements. A sixth payment by 2008, and Spencer deposited that payment on February 1, wire transfer in the amount of $15,000 was made by Stacy 2008. That payment posted to Spencer’s bank account on to Spencer on March 13, 2008. On March 14, 2008, that February 4, 2008. On February 5, 2008, Spencer sent an payment was posted to Spencer’s bank account. email to Wooten that Sandoval “cannot match our resources,” even though Wooten had raised only $3,620 Swihart reviewed phone and email records of Stacy, from campaign contributions at that time. David, Clements, Spencer, and Wooten. Swihart testified regarding the dates and times of communications among On February 14, 2008, Stacy made her third payment to those individuals and others. The first communication Spencer. On that day, Spencer exchanged text messages Swihart was able to document between Spencer and by phone with David between 5:12 p.m. and 5:23 p.m. David and Stacy was September 21, 2007. Swihart was Between 5:34 p.m. and 5:46 p.m., Spencer then able to document a telephone call from Wooten to communicated in succession with Wooten, Clements, and Spencer on December 20, 2007. Swihart testified David. Stacy’s third payment to Spencer posted to his regarding communications occurring around the dates of account on February 15, 2008. payments from Stacy to Spencer. Swihart also testified regarding communications occurring around the dates of On February 26, 2008, Stacy made her fourth payment to events in matters before the 380th Judicial District Court Spencer. At 4:41 a.m., Spencer’s assistant confirmed to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

Spencer by email that radio advertising time had been two-minute telephone call from Spencer to Benavides’s purchased for Wooten’s campaign. At 5:24 a.m. and 6:59 cell phone. At 11:06 a.m., Spencer attempted to call a.m., David received text messages from Spencer. At 9:17 David. Between 11:08 a.m. and 11:13 a.m., there was a a.m., Stacy sent instructions to Tolleson Private Bank to telephone call from David to Spencer. Between 11:14 wire $25,000 to Spencer. At 2:14 p.m., the wire transfer a.m. and 11:17 a.m., there was a telephone call from was posted to Spencer’s account. At 2:37 p.m. and 2:53 Spencer to Benavides. From 11:18 a.m. to 11:21 a.m., p.m., Spencer’s wife, Kipling Spencer, purchased there was a telephone call from Spencer to David. cashier’s checks for payment of Wooten campaign expenses from the funds wired to Spencer’s account by Swihart testified regarding events of March 2, 2009. On Stacy. that date, Wooten was still presiding over the SAPCR involving David and Jennifer. Wooten and Spencer were *23 Swihart testified regarding telephone calls from TDI, communicating by text message. In the midst of their text David’s place of employment, to Wooten’s law office messages, Spencer telephoned Judge Oldner’s office. A prior to her election as judge. There were a total of four transcript of the March 2, 2009 hearing before Wooten in telephone calls, with the longest being two minutes and the SAPCR case was admitted in evidence. At the fifty-four seconds. The first telephone call occurred on hearing, Wooten stated she learned Benavides was January 21, 2008 and the last call occurred on February appearing in the family law matter between David and 25, 2008. Swihart testified there were also telephone calls Jennifer on Friday, February 27, 2009. Wooten stated she between David’s cell phone and Wooten’s law office, had spoken with Judge Oldner, the administrative judge, totaling twelve to fifteen minutes. on February 27, 2009, about whether it was appropriate for her to hear the matter, “especially in light of [Alma] On March 4, 2008, Wooten won the Republican primary. Benavides appearing on the case.”Wooten indicated she On March 7, 2008, Stacy made the fifth payment to had worked with Benavides through September 2008 and Spencer. On March 7, 2008, between 7:07 a.m. and 8:29 Benavides was her campaign treasurer. Wooten stated that a.m., Spencer text-messaged four times with David. “[F]or various reasons, I have to recuse myself off this Clements text-messaged Spencer at 8:17 a.m. David and case.”At that hearing, David’s counsel stated that David Stacy had three phone conversations between 8:45 a.m. waived any conflict and asked Wooten to reconsider and 9:10 a.m. Between 9:23 a.m. and 10:02 a.m., Spencer recusing herself from hearing the SAPCR. Wooten noted and David exchanged thirteen text messages. At 10:47 that during her election campaign, David “picked up a.m., Stacy attempted to reach David by telephone. At some” of her campaign signs, but she stated she had not 10:58 a.m., Stacy sent instructions to Tolleson Private met him and would not know what he looked like. On Bank to wire $10,000 to Spencer. At 11:40 a.m., David March 2, 2009, Spencer and David exchanged thirty-one text-messaged Spencer. At 2:51 p.m., the wire transfer of text messages. On March 3, 2009, there were eight text $10,000 posted to Spencer’s bank account. Between 3:21 messages between Spencer and David. On March 4, 2009, p.m. and 3:52 p.m., Spencer and David exchanged eleven Wooten recused herself from the SAPCR involving David text messages. At 3:59 p.m., Kipling Spencer purchased a and Jennifer. There was one phone call between Spencer cashier’s check made payable to Clements in the amount and David that day. of $10,000. *24 Swihart testified regarding Wooten’s campaign Between 6:24 p.m. and 6:31 p.m. on March 13, 2008, the expenditures and Spencer’s invoices to the Wooten day of the sixth payment from Stacy to Spencer, Spencer campaign for the period January 7, 2008 through August text messaged David six times. At 9:41 p.m., Stacy sent 29, 2008. Swihart compiled a summary of those expenses instructions by email to Tolleson Private Bank to wire and invoices from forty-two exhibits and testimony from Spencer $15,000. On March 14, 2008, the sixth payment a previous hearing.12 Swihart testified that pre-election from Stacy to Spencer in the amount of $15,000 was expenditures on behalf of the Wooten campaign for the posted to Spencer’s bank account. period January 1, 2008 through the Republican primary on March 4, 2008 totaled $81,215.26. The total amount of On January 2, 2009, Wooten was sworn in as judge of the contributions deposited in Wooten’s campaign account 380th Judicial District Court. At 9:59 a.m. on February for that period was $12,370. Swihart testified that Spencer 27, 2009, Benavides’s pleading regarding her appearance spent about $118,000 on Wooten’s campaign, and on behalf of Jennifer in the SAPCR case pending in Wooten actually paid back only about $102,000 of that Wooten’s court was file-stamped. At 11:03 a.m., there amount. was a one-minute phone call between Spencer and David’s cell phone. At 11:04 a.m., there was a Swihart testified David had a motive to bribe Wooten.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

Swihart explained there was a connection between the times. Valentine testified that Spencer also made money Stacy paid to Spencer and the money Spencer comments to him about Spencer’s role in the judicial spent on behalf of the Wooten campaign, and there was a campaign. Spencer told Valentine that he was able to get connection among Stacy, David, Spencer, and Wooten. Wooten elected and that “he owned her.” According to Swihart testified bribery could occur without Stacy or Valentine, Spencer said two or three times that he David ever speaking directly to Wooten about the “owned” Wooten and “used that as a reason for why he collusive plan. Based on the evidence he reviewed, was able to get things done” and an example of “the kind Swihart testified David used Spencer as a barrier between of stuff I can do.” Wooten and himself and Stacy. Swihart gave the example of the March 7, 2008 wire transfer of $10,000 from Stacy David was pushing Valentine to hire Spencer as a to Spencer. On March 7, 2008, Spencer and David were consultant who would facilitate meetings with executives in communication, followed by David and Stacy of various corporations and help sell TDI’s product. communicating with one another. Stacy then provided Valentine objected to hiring Spencer because he did not instructions to her bank to wire money to Spencer’s bank think it made sense for the company to hire a “lobbyist,” account. One hour and eight minutes after the $10,000 and the only people Spencer knew were politicians. wire transfer was posted to Spencer’s account, the money Valentine told David, “Look, if I need to bribe a judge, was converted into a cashier’s check for payment of [Spencer’s] my guy,” but Spencer cannot add value with Clements’s $10,000 bonus following Wooten’s victory in regard to sales of the company’s product. Although other the Republican primary. Swihart also testified that if sales and marketing employees also opposed TDI hiring David was screening Stacy from contact with Wooten by Spencer, David insisted, and Spencer was hired as a TDI utilizing Spencer as a barrier, Stacy would have been consultant. involved in the collusive enterprise. In March 2009, Valentine complained about Spencer to the TDI Board of Directors and demanded an outside investigation of Spencer by the Board based on an incident Valentine thought was a basis for TDI severing Jay Valentine its relationship with Spencer. Valentine’s complaints about Spencer related to Spencer’s interaction with a *25 Jay Valentine testified that in late 2006 or early 2007, female marketing director while on a business trip. In an David contacted him regarding Valentine becoming a email and memorandum setting forth his complaints about sales vice president at TDI. In early 2007, David spoke to Spencer, Valentine also included information about the Valentine about being involved in a “nasty divorce” and a claims David and Spencer had made about getting series of family law issues. Valentine thought that one of Wooten elected and what Wooten was going to do in the people “causing [David] some trouble” was a local connection with David’s family law matters. David came judge. David indicated to Valentine that he was doing to Spencer’s defense, and Valentine testified he knew his some “advocacy work.” Valentine began working at TDI complaint about Spencer was not going to be taken in November 2007. In February or March of 2008, seriously. TDI fired Valentine in April 2009. In June Valentine had further conversations with David about his 2009, Valentine filed an employment discrimination family law matters. David had Wooten campaign signs in claim against TDI. In the employment discrimination his office, and he told Valentine that he was working to complaint, Valentine asserted that David and Spencer had get Wooten elected. David told Valentine there was a told him about their role in getting Wooten elected and judge by the name of Sandoval who had made an adverse bragged about bribing a judge. Valentine testified that the ruling against David. According to Valentine, David said reason he included those claims in his employment Wooten was going to change “the rulings” made in discrimination complaint was to show David’s conflict of David’s family law matter. interest with regard to Spencer. Valentine testified that his employment discrimination claim against TDI was David wanted to hire Spencer to work at TDI. David said arbitrated, resulting in an arbitration award in his favor. several times that the reason he wanted to hire Spencer was because he was “able to fix problems.” David told Valentine that he had “hired Spencer to get a candidate to run against this judge” and that Spencer was the person who had “fixed his situation with the judge, and was William Johnson going to get his situation reversed.”According to Valentine, David made those statements to Valentine and *26 William Johnson testified that he was CEO and other employees of the TDI sales department several owner of sixty-five to seventy percent of TDI. David © 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

worked at TDI, but left the company in March or April evidence to support her bribery convictions. In connection 2012. At the suggestion of David, TDI hired Spencer to with each of the six bribery counts, the jury found Stacy resolve an issue related to TDI credit card debt, for which offered, conferred, or agreed to confer a benefit to he was paid $5,000 by TDI. Later, David suggested to Wooten as consideration for Wooten’s filing to run for Johnson that Spencer could provide access to legislators election, proceeding or continuing with a campaign for and officials at the Texas Department of Information election as judge, or presiding over and issuing favorable Resources that would facilitate marketing TDI’s products rulings to Stacy or David in cases before her as judge. to the State. Johnson and David traveled to Austin, Texas to discuss the initiative with Spencer. As a result of this initiative, Spencer was paid $80,000 by TDI for work in obtaining a rider on a State budget that would facilitate acquisition by the State of data security technology. Standard of Review David then proposed that TDI set up a conference with Spencer in Washington, D.C. to speak to Spencer’s We review the sufficiency of the evidence under the contacts in the federal sector. standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).Matlock v. State, 392 Johnson testified that Jay Valentine was hired as the head S.W.3d 662, 667 (Tex.Crim.App.2013). We examine all of sales and marketing of TDI in 2007. Valentine had the evidence in the light most favorable to the verdict and been well-recommended by David and two of the determine whether any rational trier of fact could have members of the TDI Board of Directors. In March 2009, found the essential elements of the offense beyond a Johnson received an email from Valentine detailing a reasonable doubt. Jackson, 443 U.S. at 319; Matlock, 392 complaint that Spencer had allegedly sexually harassed a S.W.3d at 667; see also Hooper v. State, 214 S.W.3d 9, female marketing director.13The email further described 12 (Tex.Crim.App.2007) (in assessing legal sufficiency of what Valentine believed was a conflict of interest the evidence, we consider all the evidence in the light involving David and Spencer, because TDI’s hiring of most favorable to the verdict and determine whether, Spencer could be viewed as payback for Spencer’s “based on that evidence and reasonable inferences valuable work for David personally. In a “memorandum” therefrom, a rational juror could have found the essential to TDI, Valentine said Spencer and David had been elements of the crime beyond a reasonable doubt”). This bragging about unseating a judge who had ruled against standard recognizes “the responsibility of the trier of fact David. Johnson testified that if Spencer said he saw fairly to resolve conflicts in the testimony, to weigh the Wooten campaign signs in David’s office, Johnson would evidence, and to draw reasonable inferences from basic not dispute that testimony. facts to ultimate facts.”Jackson, 443 U.S. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex.Crim.App.2011). The standard is the same for both direct and circumstantial evidence cases; under this standard, circumstantial evidence is as probative as direct Verdict evidence and, alone, can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13; Kutzner v. State, 994 S.W.2d The jury found Stacy guilty of engaging in organized 180, 184 (Tex.Crim.App.1999). criminal activity, six counts of bribery, and money laundering. The trial court assessed punishment of ten The jury, as the fact finder, is entitled to judge the years’ confinement and a fine of $10,000 as to each count, credibility of the witnesses, and can choose to believe all, those sentences to run concurrently. The trial court some, or none of the testimony presented by the parties. suspended imposition of the sentences, and placed Stacy Chambers v. State, 805 S.W.2d 459, 461 on community supervision for a period of ten years. The (Tex.Crim.App.1991). We defer to the jury’s trial court required her to serve thirty days in county jail determinations of credibility, and may not substitute our as a condition of her community supervision. Stacy filed judgment for that of the fact finder. Jackson, 443 U.S. at this appeal of those convictions. 318–19; Brooks v. State, 323 S.W.3d 893, 899–900 (Tex.Crim.App.2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000) (in conducting legal sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our judgment for that Bribery of the jury”). Evidence is not rendered insufficient simply because conflicting evidence is introduced. Matchett v. In her first issue, Stacy asserts there is insufficient State, 941 S.W.2d 922, 936 (Tex.Crim.App.1996).“An © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

appellate court determines whether the necessary mental state of the actor, and is complete if a private inferences are reasonable based upon the combined and citizen, by offering, conferring, or agreeing to confer cumulative force of all the evidence when viewed in the intends an agreement.”Mustard v. State, 711 S.W.2d 71, light most favorable to the verdict.”Ervin v. State, 331 75 (Tex.App.-Dallas 1986, pet. ref’d); see also Hubbard S.W.3d 49, 55 (Tex.App.-Houston [1st Dist.] 2010, pet. v. State, 668 S.W.2d 419, 420–21 (Tex.App.-Dallas 1984) ref’d). “[I]t is not necessary that every fact point directly (bribery focuses on the mental state of the actor, and is and independently to the defendant’s guilt; it is enough if complete if a private citizen, by offering, conferring, or the conclusion is warranted by the combined and agreeing to confer, or a public servant or party official, by cumulative force of all the incriminating circumstances.” soliciting, accepting, or agreeing to accept, intends an Johnson v. State, 871 S.W.2d 183, 186 agreement), pet. granted and remanded on other (Tex.Crim.App.1993). Any inconsistencies in the grounds,739 S.W.2d 341 (Tex.Crim.App.1987). Intent evidence are resolved in favor of the verdict. Matson v. may be inferred from circumstantial evidence such as State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). acts, words, and conduct of the accused. Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App.2004); Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002) (intent may be inferred from accused’s acts, words, and conduct); see also Conner v. State, 67 S.W.3d 192, 197 Analysis (Tex.Crim.App.2001). Whether the person possessed the requisite intent to commit an offense is most often proven *27 Section 36.02 of the penal code provides, in pertinent through the circumstantial evidence surrounding the part, that a person commits bribery if: crime.Sholars v. State, 312 S.W.3d 694, 703 (Tex.App.-Houston [1st Dist.] 2009, pet. ref’d). he intentionally or knowingly offers, confers, or agrees to confer on another ...: In this case, the jury was charged that Stacy could be (1) any benefit as consideration for the recipient’s found guilty as a principal or as a party to the offenses of decision, opinion, recommendation, vote, or other bribery. Under the law of parties, each party to an offense exercise of discretion as a public servant, party may be charged with the commission of the offense.TEX. official, or voter; PENAL CODE ANN. § 7.01(b) (West 2011). A person is responsible for the criminal conduct of another person if (2) any benefit as consideration for the recipient’s “acting with intent to promote or assist the commission of decision, vote, recommendation, or other exercise of the offense, he solicits, encourages, directs, aids, or official discretion in a judicial or administrative attempts to aid the other person to commit the offense.”Id. proceeding.... § 7.02(a)(2) (West 2011). When a party is not the “primary actor,” the State must prove conduct constituting TEX. PENAL CODE ANN. § 36.02(a)(1) & (2) (West an offense plus an act by the defendant alone with the 2011).14 It is no defense to prosecution that a person intent to promote or assist such conduct. Beier v. State, whom the actor sought to influence was not qualified to 687 S.W.2d 2, 3 (Tex.Crim.App.1985). The jury may act in the desired way, whether because she had not yet consider “events occurring before, during and after the assumed office, she lacked jurisdiction, or for any other commission of the offense, and may rely on actions of the reason. Id. § 36.02(b). The offense of bribery is complete defendant which show an understanding and common when the offer or solicitation is made.Martinez v. State, design to do the prohibited act.”Ransom v. State, 920 696 S.W.2d 930, 933 (Tex.App.-Austin 1985, pet. ref’d). S.W.2d 288, 302 (Tex.Crim.App.1996). Circumstantial evidence may suffice to show the defendant is a party to A person acts intentionally with respect to the nature of the offense. Id.; Miller v. State, 83 S.W.3d 308, 313 her conduct or to the result of her conduct when it is her (Tex.App.-Austin 2002, pet. ref’d).“Since an agreement conscious objective or desire to engage in the conduct or between parties to act together in a common design can cause the result. TEX. PENAL CODE ANN. § 6.03(a) seldom be proved by words, the State must rely on the (West 2011). A person acts knowingly with respect to the actions of the parties, shown by direct or circumstantial nature of her conduct or to circumstances surrounding her evidence, to establish an understanding or common design conduct when she is aware of the nature of her conduct or to commit the offense .”Miller, 83 S.W.3d at 314. that the circumstances exist. Id. § 6.03(b). A person acts Because the charge authorized the jury to convict Stacy as knowingly with respect to a result of her conduct when a principal or a party, the verdict will be upheld if the she is aware that her conduct is reasonably certain to evidence was sufficient on either of those theories. See cause the result. Id.“The offense of bribery focuses on the Sorto v. State, 173 S.W.3d 469, 472

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 20 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

(Tex.Crim.App.2005). Allegation Evidence is Insufficient to Support Conviction

*29 Stacy argues that while she was charged under the bribery statute with offering, conferring, or agreeing to Allegation Bribery Statute Does Not Support Conviction confer a benefit to Wooten in consideration for Wooten proceeding or continuing with a campaign for judge, the *28 Stacy contends the bribery statute does not support a evidence does not support that charge because the conviction for offering, conferring, or agreeing to confer a evidence does not show Stacy had the requisite intent or benefit to Wooten as consideration for Wooten’s decision that Wooten “even considered, at any time, getting out of to become a judicial candidate, because a potential the race after she made the decision” to become a candidate or someone who has yet to become a candidate candidate.15 Additionally, Stacy argues that while she was is not a “public servant” as referenced in the bribery charged under the bribery statute with offering, statute. “Public servant” means: conferring, or agreeing to confer a benefit to Wooten in consideration for Wooten’s favorable rulings in cases a person elected, selected, involving Stacy or David, the evidence does not support appointed, employed, or otherwise that charge because the evidence does not show Stacy had designated as one of the following, the requisite intent or that Stacy knew that any benefit to even if he has not yet qualified for Wooten was supposed to constitute a bilateral agreement office or assumed his duties: (A) an for favorable rulings.16 We are unpersuaded by these officer, employee, or agent of arguments. government; ... (C) an arbitrator, referee, or other person who is Stacy acknowledged in her appellate briefing that there authorized by law or private written “was certainly evidence that David believed that Judge agreement to hear or determine a Sandoval was a bad judge and was unfairly biased against cause or controversy; ... (E) a him” and there “was also evidence that [David] wanted candidate for nomination or Judge Sandoval to be defeated.”From this evidence, a election to public office.... rational jury could have reasonably concluded that David wanted Sandoval unseated in the March 2008 Republican TEX. PENAL CODE ANN. § 1.07(41) (West primary. Supp.2013). Assuming, without deciding, that Stacy could not be guilty of bribery for offering, conferring, or The evidence showed Spencer traveled from his home agreeing to confer a benefit on Wooten as consideration near Austin, Texas to meet with David and Stacy on for Wooten’s decision to become a judicial candidate, the October 1, 2007. Shortly after that meeting, Spencer assumption would not be dispositive with respect to the reviewed the court file in David’s divorce case and legal sufficiency of the evidence to support the bribery SAPCR and began contacting individuals in Collin convictions if the jury could have found Stacy guilty of County to find a candidate to run against Sandoval for the bribery for offering, conferring, or agreeing to confer a office of judge of the 380th Judicial District Court. The benefit to Wooten as consideration for Wooten deadline for filing as a candidate in that race was January proceeding or continuing with a campaign for election as 2, 2008. Therefore, there was a limited amount of time to judge or for favorable rulings in cases involving Stacy or locate a candidate. Because there was no Democrat David. “[W]hen the trial court’s charge authorizes the candidate in that judicial race, the winner of the jury to convict on more than one theory, as it did in this Republican primary would be the elected judge following case, the verdict of guilty will be upheld if the evidence is the general election in the fall of 2008. sufficient on any one of the theories.”See Guevara, 152 S.W.3d at 49; see alsoTEX. ELEC.CODE ANN. § In his discussions with Wooten, Spencer expressed his 251.001(1) (West 2010) (“candidate” means a “person belief that a successful campaign to unseat Sandoval who knowingly and willingly takes affirmative action for would require $100,000 to $150,000, and Wooten purpose of gaining nomination or election to public office believed that was a reasonable estimate. The primary or for the purpose of satisfying financial obligations election was to be held only two months after Wooten incurred by the person in connection with the campaign declared her candidacy, and the evidence indicated it was for nomination or election”). not likely Wooten could solicit significant campaign contributions in that limited period of time, particularly since the majority of campaign contributions in judicial races are made by lawyers and lawyers are not readily © 2015 Thomson Reuters. No claim to original U.S. Government Works. 21 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

inclined to make contributions to a candidate seeking to February 5, 2008, Spencer sent an email to Wooten unseat an incumbent judge. Despite this fundraising indicating that Sandoval “cannot match our resources,” challenge, Wooten agreed to run for election, and she even though Wooten had raised only $3,620 for her appointed Spencer, who had never before managed a campaign at that time. On February 14, 2008, Stacy made political campaign, to serve as her campaign manager. her third payment to Spencer. On that day, Spencer exchanged text messages by phone with David between In her appellate briefing, Stacy acknowledged that “the 5:12 p.m. and 5:23 p.m. Between 5:34 p.m. and 5:46 p.m., evidence shows that [Stacy] made payments to [Spencer] Spencer then communicated in succession with Wooten, and that [Spencer] used a large portion of those payments Clements, and David. Stacy’s third payment to Spencer to make campaign expenditures for the Wooten campaign posted to his account on February 15, 2008. On February at times when the campaign had not raised enough money 26, 2008, Stacy made her fourth payment to Spencer. At to cover them.”17For example, the day following 4:41 a.m. on that day, Spencer’s assistant confirmed to Wooten’s January 2, 2008 declaration of her candidacy, Spencer by email that radio advertising time had been Stacy attempted to wire transfer $50,000 to Spencer. purchased for Wooten’s campaign. At 5:24 a.m. and 6:59 When that wire transfer was unsuccessful, Stacy wire a.m ., David received text messages from Spencer. At transferred $50,000 the following day, January 4, 2008. 9:17 a.m., Stacy sent instructions to Tolleson Private Before that wire transfer, Spencer had $2.39 in his bank Bank to wire $25,000 to Spencer. At 2:14 p.m., the wire account. The evidence establishes Spencer immediately transfer was posted to Spencer’s account. Swihart testified began utilizing money transferred by Stacy to pay those funds from Stacy were immediately used for campaign consultant Clements and other campaign payment of Wooten campaign expenses. At 2:37 p.m. and expenses. Spencer testified that without the money wire 2:53 p.m., Spencer’s wife purchased cashier’s checks for transferred by Stacy, he would not have been able to pay payment of Wooten campaign expenses from the funds Clements $7,500 on January 7, 2008, and $7,500 on wired to Spencer’s account by Stacy. January 8, 2008. On March 4, 2008, Wooten won the Republican primary. Sandoval’s February 4, 2008 Campaign Finance Report On March 7, 2008, Stacy made the fifth payment to indicated Sandoval had raised $12,575 in campaign Spencer. Between 7:07 a.m. and 8:29 a.m. on that day, contributions, had expended $8,997.08, and had a balance Spencer text-messaged four times with David. Clements of $4,231.37 in his campaign account. The bank records text-messaged Spencer at 8:17 a.m. David and Stacy had for Wooten’s campaign account show that on February 4, three phone conversations between 8:45 a.m. and 9:10 2008, the account had a balance of $2,366, and on a.m. Between 9:23 a.m. and 10:02 a.m., Spencer and February 5, 2008, the account had a balance of $1,933. David exchanged thirteen text messages. At 10:47 a.m., Despite the fact Sandoval had received significantly Stacy attempted to reach David by telephone. At 10:58 greater campaign contributions than Wooten, Spencer told a.m., Stacy sent instructions to Tolleson Private Bank to Clements he was not impressed with the amount Sandoval wire $10,000 to Spencer. At 11:40 a.m., David had raised. Spencer also communicated to Wooten and text-messaged Spencer. At 2:51 p.m., the wire transfer of Clements that Sandoval was not “in a position to match $10,000 posted to Spencer’s bank account. Between 3:21 our resources.”Clements interpreted Spencer’s email to p.m. and 3:52 p.m., Spencer and David exchanged eleven mean that there were people Spencer could go to for text messages. At 3:59 p.m., Spencer’s wife purchased a money. cashier’s check made payable to Clements in the amount of $10,000. Between 6:24 p.m. and 6:31 p.m. on March *30 The evidence showed numerous communications 13, 2008, the day of the sixth payment from Stacy to between Spencer, David, and Stacy at or about the time of Spencer, Spencer text messaged David six times. At 9:41 transfers of funds from Stacy to Spencer. For example, on p.m., Stacy sent instructions by email to Tolleson Private January 29, 2008, the night before the second payment by Bank to wire Spencer $15,000. On March 14, 2008, the Stacy to Spencer, Spencer telephoned David’s cell phone. sixth payment from Stacy to Spencer in the amount of Immediately thereafter, either David or Stacy telephoned $15,000 was posted to Spencer’s bank account. Spencer from David and Stacy’s home phone. Spencer then telephoned Wooten. After the telephone call to Spencer testified he kept Stacy removed from his work on Wooten, Spencer telephoned David and Stacy’s home. Wooten’s campaign. However, evidence of the consulting Stacy made the second payment to Spencer on January agreement between Spencer and Stacy and a summary of 30, 2008, and Spencer deposited that payment to his invoices purportedly related to the agreement were account on February 1, 2008. That payment posted to introduced in evidence. The consulting agreement is dated Spencer’s bank account on February 4, 2008. On prior to Spencer’s meeting with David and Stacy where

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 22 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

his consulting services were first purportedly discussed. situation with the judge, and was going to get his situation The consulting agreement, dated October 1, 2007, was reversed.”The jury heard Johnson’s testimony regarding strikingly similar to Spencer’s October 15, 2009 Valentine’s “memorandum” in which he said Spencer and engagement letter with TDI. Both agreements include an David had been bragging about unseating a judge who identical phrase relating solely to TDI: “[a]ny additional had ruled against David and Valentine’s email to Johnson time spent on TDI’s behalf is part and parcel to, and in which he expressed his concern that TDI’s hiring inclusive of this engagement.”Spencer admitted when Spencer could be seen as a conflict of interest, that is, as testifying at trial that when he left the October 2, 2007 payback for Spencer’s role in unseating the judge meeting with David and Stacy, he did not know the name presiding over David’s divorce and SAPCR. of David’s employer.18The August 1, 2008 “summary” invoice for purported consulting services rendered by The jury also heard evidence concerning a June 2009 Spencer did not apply a credit for the $50,000 wire email exchange between Spencer and David regarding an transfer from Stacy to Spencer on January 4, 2008, and opinion of the United States Supreme Court concerning the $25,000 transfer on February 26, 2008 from Stacy to judge recusal. See Caperton, 556 U.S. 868, 129 S.Ct. Spencer did not appear as a credit on the invoice, but was 2252, 173 L.Ed.2d 1208. The email included a statement handwritten on Stacy’s copy of the invoice. The work from an article discussing Caperton, stating that “judges product purportedly produced by Spencer pursuant to the who receive campaign contributions large enough to consulting agreement was insubstantial, especially in light create the appearance of bias should recuse of the generous compensation of $25,000 for each of the themselves....” In the email, Spencer stated to David that four “projects” outlined in the consulting agreement. he thought David would understand why he was Further, the evidence indicated that Stacy purportedly interested in the subject matter of that case, although paid Spencer for “projects” at times when she had not Spencer denied that he and David were interested in been invoiced for the work and Spencer had not provided Caperton because Stacy’s money was used to finance any work product. Stacy transferred $150,000 to Spencer Wooten’s campaign. between January 4, 2008 and March 14, 2008, although Spencer testified he was to be paid $25,000 for each of *32 After Wooten became the judge presiding over four “projects,” which would total only $100,000 under David’s SAPCR, David’s motion to modify was set to be the consulting agreement. heard by Wooten. However, shortly before the hearing on the SAPCR, Benavides appeared in the case on behalf of *31 From the evidence relating to Spencer’s consulting Jennifer. This appearance as counsel would result in agreement with Stacy, the jury could have reasonably Wooten’s recusal because Wooten had indicated an intent inferred the agreement was a subterfuge, fabricated to recuse herself for a period of nine months after January several years after the purported effective date to provide 2009 from cases in which Benavides appeared. The a false explanation for the transfers of money from Stacy evidence showed David contacted Spencer regarding to Spencer that were used to finance Wooten’s campaign. Benavides appearing in the SAPCR, and Spencer, in turn, On this record, including the evidence concerning the six contacted Benavides and Basinger and told them to “get transfers of funds from Stacy to Spencer and the off this case,” despite not being able to provide a communications among Spencer, David, and Stacy at or satisfactory reason. The evidence showed numerous other about the time of the transfers, a rational jury could have contacts between Spencer and David shortly after reasonably inferred that Stacy intentionally or knowingly, Benavides’s appearance in the SAPCR. Further, the either as the primary actor or a party, offered, conferred, evidence showed that shortly after Benavides appeared in or agreed to confer a benefit, as to each of her transfers of the SAPCR, Spencer contacted the office of Judge funds to Spencer, as consideration for Wooten’s decision Oldner, the administrative judge. On this record, to proceed or continue with a campaign to unseat including evidence of the efforts of Spencer and David to Sandoval through the Republican primary. avoid Wooten’s recusal in the SAPCR, the effort of Spencer to make contact with the administrative judge Although Spencer denied stating that he “owned” Wooten that had advised Wooten to recuse herself, and Stacy’s six or that Wooten was going to “fix” David’s divorce, transfers of funds to Spencer and the communications Valentine testified Spencer said two or three times that he among Spencer, David, and Stacy at or about the time of “owned” Wooten, and “used that as a reason for why he the transfers, a rational jury could have reasonably was able to get things done” and an example of “the kind inferred that Stacy, intentionally or knowingly, either as of stuff [he could] do.”Valentine testified David told him the primary actor or a party, offered, conferred, or agreed that he had “hired Spencer to get a candidate to run to confer a benefit, as to each of her transfers of funds to against this judge” and that Spencer had “fixed [David’s] Spencer, as consideration for favorable rulings by Wooten

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 23 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

in cases in which David was a party. Further, the evidence *33 Reaching unassigned error, the dissent argues the showed that despite Benavides and Basinger appearing in State failed to prove the transfers from Stacy were not the suit brought by Stacy against Jennifer and Suster that political contributions subject to section 36.02(d) of the had been transferred to Wooten’s court, Wooten did not penal code. Stacy did not raise as error a contention that voluntarily recuse herself in that lawsuit. On this record, the political contribution exception requires the reversal including evidence of Wooten’s failure to recuse herself of her convictions. The dissent recognizes that there must from Stacy’s lawsuit and Stacy’s six transfers of funds to be an exceptional reason for entertaining unassigned error Spencer and the communications among Spencer, David, but concludes it is appropriate in this case. We disagree and Stacy at or about the time of the transfers, a rational that this case presents an appropriate circumstance for jury could have reasonably inferred that Stacy, exercising our discretion to address, in the interest of intentionally or knowingly, either as the primary actor or justice, the argument made by the dissent. See Pfeiffer v. a party, offered, conferred, or agreed to confer a benefit to State, 363 S.W.3d 594, 599 (Tex.Crim.App.2012) Wooten in consideration for favorable rulings by Wooten (“[A]ppellate courts may review unassigned error-a claim in cases in which Stacy was a party. that was preserved in the trial court but was not raised by either party on appeal.”) (emphasis added). While an Stacy argues that the evidence does not show Stacy knew appellate court may in its discretion address unassigned that any benefit to Wooten was supposed to constitute a error, it is rarely required to do so, and the dissent does bilateral agreement for favorable rulings by Wooten in not argue this is a case involving fundamental unassigned cases in which David and Stacy were parties. Stacy cites error that an appellate court must recognize on its own. McCallum v. State, 686 S.W.2d 132 Nevertheless, because the dissent raises the unassigned (Tex.Crim.App.1985), for the proposition that the phrase error, we will address the merits of the dissent’s “as consideration for,” as contained in the bribery statute, argument. “requir[es] a bilateral agreement—in effect an illegal contract to exchange a benefit as consideration for the Under section 36.02(d), “[i]t is an exception to the performance of an official function.”Id. at 136. However, application of Subdivisions (1), (2), and (3) of Subsection McCallum is distinguishable from the instant case. “In (a) that the benefit is a political contribution as defined by McCallum, the indictment alleged only that the defendant Title 15, Election Code, or an expenditure made and conferred the benefit on the recipient. Under that reported in accordance with Chapter 305, Government indictment, proof that the defendant offered the alleged Code.”TEX. PENAL CODE ANN. § 36.02(d). As the benefit was not sufficient to convict.”Martinez, 696 dissent acknowledges, the bribery counts specifically S.W.2d at 932. Here, Stacy was indicted for offering, alleged that the benefits Stacy offered to, conferred on, or conferring, and agreeing to confer a benefit to Wooten as agreed to confer on Wooten were benefits “other than consideration for Wooten’s running for election, political contribution[s] as defined by Title 15, Election proceeding or continuing with a campaign for election, Code, or ... expenditures[s] made and reported in and issuing favorable rulings in cases in which Stacy or accordance with Chapter 305 of the Government Code.”In David are parties. The jury was charged that they could accordance with the bribery counts, the jury charge find Stacy guilty of each count of bribery if they found instructed the jury that it could find Stacy guilty of she either offered, conferred, or agreed to confer a benefit bribery only if the transfers were “other than ... political to Wooten as consideration for Wooten’s running for contribution[s] as defined by Title 15, Election Code, or election, proceeding or continuing with a campaign for ... expenditure[s] made and reported in accordance with election, and issuing favorable rulings in cases in which Chapter 305 of the Government Code.”The jury charge Stacy or David are parties. See id. at 932–33 (“Common also instructed the jury about the following definitions of sense dictates that when it is alleged and proved that the “contribution,” “political contribution,” “campaign defendant offered or solicited a proscribed benefit, it is contribution,” and “expenditure”: not necessary to further prove that the offer or solicitation resulted in a bilateral agreement or unlawful contract with *34 “Contribution” means a direct or indirect transfer the other party.”); see also Valencia v. State, No. of money, goods, services, or any other thing of value 13–02–020–CR, 2004 WL 1416239, at *2 and includes an agreement made or other obligation (Tex.App.-Corpus Christi June 24, 2004, pet. ref’d) incurred, whether legally enforceable or not, to make a (mem. op., not designated for publication). transfer. The term includes a loan or extension of credit, other than those expressly excluded by law, and a guarantee of a loan or extension of credit, including a loan described by law. The term does not include a loan made in the due course of business by a corporation Political Contribution Exception that is legally engaged in the business of lending © 2015 Thomson Reuters. No claim to original U.S. Government Works. 24 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

money and that has conducted the business Conclusion continuously for more than one year before the loan is made or an expenditure required by law to be reported. *35 The jury was entitled to judge the weight of the evidence, resolve conflicts in the testimony, and draw “Political contribution” means a campaign contribution reasonable inferences from basic facts to ultimate facts. or an officeholder contribution. See Jackson, 443 U.S. at 319. Based on our review of the record and viewing the evidence in the light most “Campaign contribution” means a contribution to a favorable to the jury’s findings of guilt, we conclude that candidate or political committee that is offered or given as to each conviction for bribery, the evidence is with the intent that it be used in connection with a sufficient to allow a rational jury to find beyond a campaign for elective office or on a measure. Whether reasonable doubt that Stacy intentionally or knowingly a contribution is made before, during, or after an offered, conferred, or agreed to confer on Wooten a election does not affect its status as a campaign benefit as consideration for Wooten proceeding or contribution. continuing with a campaign for election to the 380th Judicial District Court or for favorable rulings in cases in “Expenditure” means a payment, distribution, loan, which Stacy or David were parties. See id. at 318–19; see advance, reimbursement, deposit, or gift of money or also Hooper, 214 S.W.3d at 13; see alsoTEX. PENAL any thing of value and includes a contract, promise, or CODE ANN. § 36.02(a)(1), (2). Further, viewing the agreement, whether or not legally enforceable, to make evidence in the light most favorable to the jury’s findings an expenditure. of guilt, we conclude the evidence is sufficient to allow a rational jury to find beyond a reasonable doubt that, as to Each of those definitions essentially tracks the language each conviction for bribery, Stacy acted with intent to of the applicable statute, seeTEX. ELEC.CODE ANN. § promote or assist in the bribery, and solicited, 251.001, and therefore properly instructed the jury.19As to encouraged, directed, aided, or attempted to aid Spencer each of the six bribery counts, the jury found Stacy guilty or David in offering, conferring, or agreeing to confer on as alleged in the indictment. Wooten a benefit as consideration for Wooten proceeding or continuing with a campaign for election to the 380th The evidence showed Stacy did not transfer funds directly Judicial District Court or for favorable rulings in cases in to Wooten’s campaign; Stacy’s contention was that she which Stacy or David were parties. SeeTEX. PENAL transferred funds to Spencer to compensate him for his CODE ANN. § 7.02(a)(2); see also Hooper, 214 S.W.3d work under the purported consulting agreement. Steusloff at 14, n3; Hart, 89 S.W.3d 61, 64 (Tex.Crim.App.2002) testified as to what constitutes a lawful political (direct evidence of intent may be inferred from any facts contribution under the election code in a race for a Collin which tend to prove its existence, including acts, words, County district court bench in 2008. According to and conduct of the accused, and jury may infer knowledge Steusloff, a political contribution to a candidate for a from such evidence) (quoting Manrique v. State, 994 Collin County bench could not exceed $2,500 for the S.W.2d 640, 649 (Tex.Crim.App.1999)). We resolve election cycle. Each of the six transfers of funds from Stacy’s first issue against her. Stacy to Spencer that were funneled to the Wooten campaign vastly exceeded the amount of an allowable political contribution to a judicial candidate, and the transfers of funds were not reported by Wooten as political contributions under the election code on any Engaging in Organized Criminal Activity and Money campaign finance report or amended campaign finance Laundering report filed with the Ethics Commission or as loans under the election code on any personal financial statement filed In her second issue, Stacy contends the evidence is with the Ethics Commission. SeeTEX. ELEC.CODE insufficient to support her conviction of engaging in ANN. § 253.155(b) (West 2010). organized criminal activity because there is insufficient evidence of the predicate offenses of bribery, money Based on the applicable standard of review, a rational jury laundering,20 or tampering with a government record21 could have reasonably found that Stacy’s payments were with which she was charged. In her third issue, Stacy not political contributions as defined by the statute. Stacy argues that, because there was insufficient evidence of the does not argue otherwise on appeal. predicate offense of bribery, there is insufficient evidence to support her conviction of money laundering.

We concluded with regard to Stacy’s first issue that there

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 25 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

was sufficient evidence to support the jury finding Stacy principles. Lyles v. State, 850 S.W.2d 497, 502 guilty of the offenses of bribery. Accordingly, having (Tex.Crim.App.1993). The trial court does not abuse its concluded there was sufficient evidence of the predicate discretion unless its determination lies outside the zone of offense of bribery, we necessarily reject Stacy’s reasonable disagreement. Martinez, 327 S.W.3d at 736. contentions that there was insufficient evidence to support her convictions for engaging in organized criminal Stacy’s argument on appeal does not comport with her activity and money laundering because there was argument for admission of the evidence at trial. At trial, insufficient evidence of the predicate offense of bribery. she did not argue that the evidence should be admitted to We resolve Stacy’s second and third issues against her. undercut the charge that David had to bribe a judge to obtain favorable rulings, as she now argues on appeal. Instead, the argument advanced at trial for admission of the evidence was to show Jennifer was the “stubbornly litigious” individual in the SAPCR. Exclusion of Evidence An appellate issue involving a proffer of evidence, in *36 In her fourth issue, Stacy contends the trial court contrast to an issue involving an objection to evidence, reversibly erred by excluding from evidence the findings must nevertheless satisfy the preservation-of-error of fact and conclusions of law signed by the judge hearing requirements. Reyna v. State, 168 S.W.3d 173, 179 the SAPCR case involving David and Jennifer after (Tex.Crim.App.2005). To preserve an issue for appellate Wooten recused herself. On appeal, she argues that the review, rule 33.1 of the rules of appellate procedure excluded evidence “completely vindicated David” and requires the appellant to have made “a timely request, “undercut the charge that [David] had to bribe a judge to objection, or motion that stated the grounds for the ruling obtain favorable rulings.”According to Stacy, Judge that the complaining party sought from the trial court with McCraw’s findings “undo much of what Sandoval had sufficient specificity to make the trial court aware of the done,” and “undercut[ ] any alleged evidence that [David] complaint, unless the specific grounds were apparent from attempted to bribe, or intended to bribe” Wooten, because the context.”TEX.R.APP. P. 33.1(a)(1)(A). Arguments on the evidence shows David did not need to do so. appeal must comport with the arguments made at trial and must bring to the trial court’s attention the very complaint Before trial, the State objected to any evidence being that is now made on appeal. See Reyna, 168 S.W.3d at admitted concerning rulings made by judges in the civil 177. “[I]t is not enough to tell the judge that evidence is cases involving David, Stacy, and Jennifer, subsequent to admissible. The proponent, if he is the losing party on Wooten recusing herself in the SAPCR case, as irrelevant appeal, must have told the judge why the evidence was to the allegations against Stacy that she “offered a bribe to admissible.”Id. Stacy may not, for the first time on Suzanne Wooten to encourage her to run for Judge, to appeal, urge error not raised at trial. The explanation continue to run for Judge once she filed to run, unseat given at trial for admissibility must match the one urged Judge Sandoval from the bench and/or issue favorable on appeal. See Martinez v. State, 91 S.W.3d 331, 336 rulings for Stacy and David.”The trial court granted the (Tex.Crim.App.2002) (under rule of appellate procedure State’s motion in limine concerning reference to court 33.1, issue is whether complaining party on appeal rulings after Wooten ceased serving as the presiding judge brought to trial court’s attention the very complaint that on the cases. party is making on appeal).22 Stacy filed a bill of exception containing Judge John L. Stacy did not articulate to the trial court her assertion that McCraw, Jr.’s findings of fact and conclusions of law the findings of fact and conclusions of law signed after signed after Wooten recused herself from the SAPCR Wooten recused herself was evidence David did not involving David and Jennifer. Stacy argued to the trial attempt or intend to bribe Wooten because the evidence court that the findings of fact should be admitted in showed David did not need to bribe Wooten.23Therefore, evidence to show Jennifer was the “one being stubbornly the trial court never had the opportunity to rule upon that litigious.” The trial court ruled that the proffered evidence specific rationale for admissibility. Because Stacy did not was not relevant. raise in the trial court the argument she now makes on appeal, she forfeited this appellate challenge to the trial We review the trial court’s decision to admit or exclude court’s refusal to admit that evidence. See id.We resolve evidence under an abuse of discretion standard. Martinez Stacy’s fourth issue against her. v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010). The trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or © 2015 Thomson Reuters. No claim to original U.S. Government Works. 26 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

Conclusion decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party *37 Having resolved Stacy’s four issues against her, we official, or voter; affirm the trial court’s judgments. (2) any benefit as consideration for the recipient’s decision, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding; FITZGERALD, J., dissenting. (3) any benefit as consideration for a violation of a duty imposed by law on a public servant or party official; or DISSENTING OPINION (4) any benefit that is a political contribution as defined by Title 15, Election Code, or that is an Dissenting Opinion by Justice FITZGERALD. expenditure made and reported in accordance with *37 I dissent from the majority’s opinion and judgment Chapter 305, Government Code, if the benefit was because the evidence is insufficient to support appellant’s offered, conferred, solicited, accepted, or agreed to convictions. pursuant to an express agreement to take or withhold a specific exercise of official discretion if such With respect to the bribery charges at the heart of this exercise of official discretion would not have been case, this case is most unusual because the State’s taken or withheld but for the benefit; evidence is not merely insufficient—it affirmatively notwithstanding any rule of evidence or jury negates an essential element of the bribery charges and instruction allowing factual inferences in the absence proves appellant not guilty. To convict appellant under of certain evidence, direct evidence of the express the penal-code sections relied on by the State, sections agreement shall be required in any prosecution under 36.02(a)(1) and (a)(2), the State had to prove that certain this subdivision. transfers of funds by appellant were not political contributions. But the State’s own theory of the case was (b) It is no defense to prosecution under this section that the transfers were political contributions-monies that a person whom the actor sought to influence was intended to be spent on a particular judicial candidate’s not qualified to act in the desired way whether because campaign for office. Accordingly, the State could not he had not yet assumed office or he lacked jurisdiction properly charge appellant under sections 36.02(a)(1) and or for any other reason. (a)(2), yet it did. Only section 36.02(a)(4) deals with *38 (c) It is no defense to prosecution under this political contributions of the sort involved in this case, section that the benefit is not offered or conferred or and that section carries considerably more onerous that the benefit is not solicited or accepted until after: requirements than the State was required to prove under sections 36.02(a)(1) and (a)(2) in this case. (1) the decision, opinion, recommendation, vote, or other exercise of discretion has occurred; or

(2) the public servant ceases to be a public servant. I. BRIBERY (d) It is an exception to the application of Subdivisions (1), (2), and (3) of Subsection (a) that the benefit is a A. Applicable law political contribution as defined by Title 15, Election Code, or an expenditure made and reported in Appellant was convicted of six counts of bribery. The accordance with Chapter 305, Government Code. bribery statute provides as follows: (e) An offense under this section is a felony of the second degree.1 (a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on The court of criminal appeals has explained that the another, or solicits, accepts, or agrees to accept from phrase “as consideration for” means that the accused another: offered or conferred the benefit “as an inducement to an illegal contract, that of bribery.”2When the allegation is (1) any benefit as consideration for the recipient’s that the accused actually conferred the benefit, the statute © 2015 Thomson Reuters. No claim to original U.S. Government Works. 27 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

requires “a bilateral arrangement—in effect an illegal of parties, a person is guilty of an offense if the offense is contract to exchange a benefit as consideration for the committed by another and the person is criminally performance of an official function.”3The McCallum court responsible for the other person’s conduct.6As relevant to favorably quoted commentary from the Model Penal this case, a person is criminally responsible for another’s Code in which the drafters opined on the significance of conduct if, acting with intent to promote or assist the the “consideration” requirement in modern bribery commission of the offense, the person solicits, statutes: “This is the more conventional formula in encourages, directs, aids, or attempts to aid the other bribery legislation, and prevents application of the person to commit the offense.7To convict appellant of bribery sanction to situations where gifts are given in bribery as a party, the State had to prove (1) that someone mere hope of influencing, without any agreement by the else committed bribery, and (2) that appellant committed donee.”4Even when the conduct made the basis of a a listed act with the intent to promote or assist the charge is an offer instead of a completed transfer of a commission of bribery.8 benefit, the statute requires purposeful conduct aimed at an illegal contract-that is, an offer of a benefit with the *39 Under the appropriate standard of review, we purpose of accomplishing an exchange of the benefit for consider all of the evidence in the light most favorable to an official action.5 the jury’s verdict and determine whether a rational fact finder could have found the essential elements of the The superseding indictment charged appellant with crime beyond a reasonable doubt, based on the evidence bribery in counts two through seven. Count two is and the reasonable inferences therefrom.9We must defer illustrative of all six of those counts, and in that count the to the jury’s credibility and weight determinations State alleged as follows: because the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.10It is not necessary for every fact to point directly and independently to appellant’s guilt for us to uphold the conviction; the evidence is sufficient if the finding of guilt COUNT TWO is warranted by the cumulative force of all the incriminating evidence.11

STACY STINE CARY B. Summary of the evidence hereinafter styled Defendant, on or about January 4, 2008, and before presentment of this indictment, in the In 2003, appellant’s future husband David Cary filed for County and State aforesaid, did then and there divorce from his previous wife Jennifer Cary in the 380th intentionally and knowingly offer, confer, and agree to Judicial District Court of Collin County. Charles confer a benefit, other than a political contribution as Sandoval was the presiding judge of that court. The defined by Title 15, Election Code, or an expenditure parties were divorced in October 2004, but contentious made and reported in accordance with Chapter 305 of child-custody issues arose repeatedly after the divorce the Government Code, to wit: $50,000, to Suzanne H. decree was signed. Appellant concedes the evidence Wooten, a public servant, to-wit: a candidate for the supports the propositions that her husband thought Judge office of Judge of the 380th Judicial District Court, and Sandoval was a bad and unfair judge, and that her presiding Judge of the 380th Judicial District Court, as husband wanted Judge Sandoval to be defeated in 2008. consideration for Suzanne H. Wooten’s decision, opinion, recommendation, vote, and other exercise of There was evidence that James Spencer met with the discretion as a public servant and as consideration for Carys in October 2007, and that they discussed several Suzanne H. Wooten’s decision, vote recommendation, topics, including promotion of “family-centered and other exercise of official discretion in a judicial advocacy, with an emphasis on parental rights.”The State proceeding, to wit: filing paperwork to run for Judge of introduced into evidence a purported engagement letter the 380th Judicial District Court, and as Judge of the from Spencer to appellant dated October 1, 2007, in 380th Judicial District Court presiding over and issuing which Spencer stated that he would provide consulting favorable ruling cases in which the Defendant and services in four areas for $150 per hour up to a maximum David Cary are parties; budget of $250,000. The majority concludes that the jury The jury was charged that appellant could be guilty of could have inferred that Spencer actually created this bribery either as a principal or as a party. Under the law document much later, perhaps as late as 2009, to create an explanation for appellant’s large transfers of funds to © 2015 Thomson Reuters. No claim to original U.S. Government Works. 28 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

Spencer in early 2008. The evidence of the services campaign manager. Wooten filed as a candidate in the Spencer allegedly performed for appellant under the Republican primary on January 2, 2008, and appointed agreement was such that the jury could have concluded attorney Alma Benavides as her campaign treasurer. Soon that Spencer’s services were not worth the $150,000 that thereafter, appellant transferred sums of money to appellant paid Spencer in the first three months of 2008. Spencer as follows:

There was evidence that in December 2007, Spencer recruited Suzanne Wooten to run against Judge Sandoval in the 2008 Republican primary, which was to be held on March 4, 2008. Wooten asked Spencer to be her January 4 $50,000

January 30 $25,000

February 14 $25,000

February 26 $25,000

March 7 $10,000

March 14 $15,000

did not show that Spencer ever made his requests for money directly to appellant; the evidence showed only *40 Each of those transfers was the basis of one of the that, around the times of the payments, Spencer had six bribery counts against appellant. Spencer testified that communications involving either David Cary’s cell phone he used the money from appellant to pay for Wooten’s or the Carys’ home telephone. campaign, but he also testified that it was his money to The State adduced other circumstantial evidence. David spend, that he thought Wooten would pay him back, and Cary’s co-worker Jay Valentine testified that he had heard that Wooten did pay him back. As is chronicled in the David Cary say Wooten was going to change rulings majority opinion, appellant’s payments to Spencer made in David Cary’s family-law matter and that Spencer generally correlated with (1) the timing of certain had “fixed his situation with the judge, and was going to telephone calls involving Spencer, the Carys’ home get his situation reversed.”Valentine also testified that telephone, David Cary’s cell phone, Wooten, and Spencer said he “owned” Wooten. But there was no campaign consultant Hank Clements, and (2) the timing evidence that appellant was present when any of these of certain financial needs of the Wooten campaign. Given statements were made. There was also evidence that the evidence, the jury could reasonably infer that Spencer and David Cary were particularly interested in appellant made the payments when Spencer requested the United States Supreme Court’s Caperton12 decision them, and that Spencer’s requests were related to the about the ramifications of campaign contributions to financial needs of the Wooten campaign rather than any judges. There was evidence that David Cary told Spencer particular work he had done for appellant under the when David Cary’s ex-wife hired Wooten’s campaign alleged October 2007 consulting agreement. The evidence treasurer Benavides to represent her in their family-law

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 29 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

case, that Spencer told Benavides and her law partner that proved appellant was not guilty of the crime charged. By they did not want to be involved in the case, and that disproving an element, that is, by proving the funds were Wooten recused herself after Benavides appeared in the political contributions, the State proved appellant did not case. And there was evidence that Wooten did not commit and could not have committed the offenses voluntarily recuse herself from appellant’s lawsuit against charged and thus could not legally be convicted of a Jennifer Cary and Israel Suster even though Benavides criminal offense under sections 36.02(a)(1) and (a)(2). A and her law partner appeared on Jennifer Cary’s behalf in conviction for conduct that does not constitute an offense that matter. 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.

C. Application of the law to the facts The State, in seeking a conviction under sections 36.02(a)(1) and (a)(2), sidestepped the obligation imposed *41 The question presented is whether a rational jury, by section 36.02(a)(4) to produce direct evidence of an assessing all the evidence adduced at trial, could have express agreement and ignored the clear application of found beyond a reasonable doubt that appellant herself section 36.02(a)(4). An affirmance gives the seal of committed bribery or that she encouraged or helped her approval to a completely misdirected and unsupported husband or Spencer commit bribery with the intent to prosecution and conviction that are not supported by law. promote or assist the commission of the evidence. In my For the more detailed reasons that follow, this case view, the answer is no, for several reasons. demands unassigned-error review.

At the outset, let us closely examine the provisions of the bribery statute.Sections 36.02(a)(1) and (a)(2) basically 1. The “political contribution” exception proscribe conferring a benefit on a public servant as consideration for an exercise of discretion as a public The following analysis falls in the category of unassigned servant, or official discretion in a judicial proceeding. error. In my judgment, there must be an exceptional reason for entertaining unassigned error. This is such a Section 36.02(d) creates an exception to sections case. 36.02(a)(1), (a)(2), and (a)(3) for certain political contributions and political expenditures. In other words, if The State’s theory of its bribery case was that appellant the exception applies, a person may not be prosecuted paid Spencer the $150,000 to spend on Wooten’s judicial under either provision because, as to the particular campaign. Although sections 36.02(a)(1) and (a)(2) of the circumstances described, political contributions, the bribery statute required, among other things, that the person has not committed a criminal offense. The State is money not be a political contribution, and the indictment obliged to “negate the existence of an exception in the so alleged, the State’s evidence showed the money was a accusation charging commission of the offense and prove political contribution. Thus, in offering evidence to prove beyond a reasonable doubt that the defendant or bribery under sections 36.02(a)(1) and (a)(2), the State defendant’s conduct does not fall within the exception.”14 simultaneously negated an essential element of its case—that the payments were not political contributions. *42 Accordingly, the superseding indictment specifically In addition, such evidence demonstrated that the alleged that the benefits appellant offered to or conferred prosecution could properly be brought under section on Wooten were benefits “other than a political 36.02(a)(4), with its attendant requirement of direct contribution as defined by Title 15, Election Code, or an evidence of an express agreement. expenditure made and reported in accordance with Chapter 305 of the Government Code.”15The relevant We raise error sua sponte under the unassigned-error provisions of the election code provide: doctrine if the record discloses an error that should be addressed in the interest of justice.13 A serious concern is that the bench and bar will construe the majority opinion (2) “Contribution” means a direct or indirect transfer of as approval of a prosecution brought under sections money, goods, services, or any other thing of value and 36.02(a)(1) and (a)(2), notwithstanding that the includes an agreement made or other obligation foundation of the case is built upon political incurred, whether legally enforceable or not, to make a contributions. Another concern is that the State failed to transfer. The term includes a loan or extension of prove a substantial and critical element of the offense. Not credit, other than those expressly excluded by this only did the State fail to prove an element, the State also subdivision, and a guarantee of a loan or extension of © 2015 Thomson Reuters. No claim to original U.S. Government Works. 30 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

credit, including a loan described by this subdivision. showed the opposite, that the monies were political The term does not include: contributions used to pay political expenditures.

(A) a loan made in the due course of business by a If appellant had been prosecuted under the proper corporation that is legally engaged in the business provision, section 36.02(a)(4), the State would have had of lending money and that has conducted the to allege and prove “an express agreement.” This business continuously for more than one year provision also emphasized that “notwithstanding any rule before the loan is made; or of evidence or jury instruction allowing factual inferences in the absence of certain evidence, direct evidence of the (B) an expenditure required to be reported under express agreement shall be required in any prosecution Section 305.006(b), Government Code. under this subdivision.”17The record is bare of such evidence. (3) “Campaign contribution” means a contribution to a candidate or political committee that is offered or *43 If these convictions for bribery were permitted to given with the intent that it be used in connection stand, the distinction between a straightforward bribery with a campaign for elective office or on a measure. scheme involving the improper payment of money for an Whether a contribution is made before, during, or exercise of discretion or the inappropriate extension of after an election does not affect its status as a special treatment in a non-election context and the unique campaign contribution. circumstances present in an election context—circumstances that are inherently sensitive (4) “Officeholder contribution” means a contribution because of the nature of the political campaign to an officeholder or political committee that is process—with its additional elements of proof necessary offered or given with the intent that it be used to to secure a conviction, would be erased by judicial fiat. defray expenses that:

(A) are incurred by the officeholder in performing The majority concludes that the jury was entitled to find a duty or engaging in an activity in connection that appellant’s payments to Spencer were not political with the office; and contributions because there was evidence that those payments exceeded the legal contribution limits and there (B) are not reimbursable with public money. was evidence that Wooten did not report them in compliance with the election code. But the definitions of (5) “Political contribution” means a campaign “contribution,” “campaign contribution,” and “political contribution or an officeholder contribution. contribution” do not incorporate these other legal requirements. In other words, an illegal political (6) “Expenditure” means a payment of money or any contribution is still a political contribution. other thing of value and includes an agreement made or other obligation incurred, whether legally The State adduced no evidence that appellant conferred enforceable or not, to make a payment. any benefits on Wooten that were not political (7) “Campaign expenditure” means an expenditure contributions as defined by Title 15 of the election code. made by any person in connection with a campaign Further, the State adduced evidence appellant was not for an elective office or on a measure. Whether an guilty of the offense charged. Accordingly, the State expenditure is made before, during, or after an failed to prove an essential element of its case under election does not affect its status as a campaign sections 36.02(a)(1), (a)(2), and (d); accordingly, we expenditure.16 should reverse all six convictions for bribery and render The State contended and the State’s evidence showed that judgments of acquittal. the monies transferred in this case were political contributions—monies used to defray political expenditures incurred by Wooten during her election campaign. Indeed, that was the heart of the State’s theory 2. Lack of consideration of the case. Thus, section 36.02(d) comes into play, making the provisions of the bribery statute under which The matter does not end there. Sections 36.02(a)(1), appellant was prosecuted inapplicable. In other words, (a)(2), and (a)(4) all require a benefit to be conferred on under the facts in this case, in order to prosecute appellant someone (in this case, Wooten) in consideration for the under subsections (a)(1) and (a)(2), the State had to allege recipient’s decision, opinion, recommendation, vote or and prove the monies were not political contributions. other exercise of discretion as a public servant. The first The State properly alleged this, but the State’s proof two methods delineated in the indictment, and the State’s © 2015 Thomson Reuters. No claim to original U.S. Government Works. 31 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

evidence related thereto, involved Wooten’s “filing make rulings favorable to appellant’s husband in that paperwork to run for Judge and proceeding and litigation. But, in my view, there is insufficient evidence continuing with a campaign to unseat the incumbent to permit a reasonable jury to conclude beyond a elected Judge.”Neither act is inherently criminal. Neither reasonable doubt that appellant conferred monetary act constituted consideration. And neither constituted a benefits on Wooten as consideration for Wooten’s joining decision or act of discretion by Wooten as a public the race, for her staying in the race, or for favorable servant. These acts constituted only steps in the process of judicial rulings in cases. Nor is there sufficient evidence Wooten’s attaining public office, that is, attaining the to permit a reasonable jury to conclude beyond a position of judge. Encouraging a person to run for office, reasonable doubt (1) that appellant’s husband or Spencer any office, in and of itself, is a lawful and acceptable civic conferred monetary benefits on Wooten as consideration act, as is becoming a candidate for public office. for Wooten’s joining or staying in the race, or for Encouraging a person to proceed and continue with a favorable rulings in cases or (2) that appellant campaign to unseat an incumbent judge is likewise a intentionally promoted or assisted them in committing lawful and acceptable civic act. It is common for citizens that offense. to engage in such acts on a regular basis, and both acts are considered public spirited.18The bribery statute and the Before delving into the evidence, I point out that the State traditional idea of bribery involve the quid pro quo of makes no argument that appellant was guilty under the paying a public servant so that the recipient will make “offers” or the “agrees to confer” prongs of the bribery decisions desired by the payor once the recipient assumes statute. Although the State alludes to these theories and office.19In other words, bribery addresses graft and cites general but inapplicable authority, it does not set corruption. If acts such as encouraging a person to file or forth any facts which would establish either theory, and I encouraging a person to keep running for office can be have found no such facts in the record evidence. The construed as the consideration to establish bribery, the majority recites evidence at length, notes the allegations statute will condemn legitimate civil and political activity in the indictment of offer, agree to confer, and confer and and it will be left only to the State’s imagination what an distinguishes the McCallum decision on the basis that indictment could allege in terms of similar acts, such as McCallum involved only conferring, not offering or seeking the signatures of enough voters to qualify to run, agreeing to confer. The majority thus excuses the State attending specific political events or gaining from the necessity of establishing a bilateral agreement in endorsements, and the like.20In summary, these first two this case because the State alleged offering and alleged acts of filing paperwork to run and continuing to agreeing-to-confer theories, even though the evidence at run constitute but steps in the political process, and most supports only the “conferring” theory. The majority neither constitutes the kinds of decisions or exercises of ultimately upholds the bribery convictions based on the discretion contemplated by the statute as consideration. theories and allegations for offering, agreeing to confer, and conferring as they relate to proceeding and continuing Accordingly, we should render judgment acquitting to run and for favorable rulings, but not as to filing appellant of all six counts of bribery. paperwork to run for judge. Like the State, the majority fails to identify any evidence supporting the convictions on the theory that appellant offered or agreed to confer benefits in exchange for Wooten’s proceeding and 3. Insufficiency of the evidence as to other elements continuing to run and for favorable rulings. *44 Even setting aside the State’s failure to disprove the In my judgment, all six of the bribery counts rest only on political-contribution exception and the actual conferral of benefits—specific payments of specific lack-of-consideration defect described above, I agree with amounts of money. Accordingly, I will not discuss the appellant that the evidence was insufficient to support her submitted but unsupported theories that appellant illegally bribery convictions. The jury reasonably could have offered Wooten any benefits or illegally agreed to confer believed that appellant’s consulting agreement with any benefits on Wooten. Spencer was merely a cover story to justify appellant’s sending Spencer money to pay for Wooten’s campaign expenses. The jury reasonably could have believed that appellant wanted to help elect Wooten because she thought Judge Sandoval was a bad judge and was treating a. Becoming a candidate appellant’s husband unfairly in his ongoing litigation with his ex-wife. The jury reasonably could have believed even *45 The State’s first theory is that appellant bribed that appellant expected and hoped that Wooten would Wooten as consideration for Wooten to file the paperwork © 2015 Thomson Reuters. No claim to original U.S. Government Works. 32 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

to become a candidate for the Republican nomination to encountered one of the jurors in a social setting after be judge of the 380th Judicial District Court. The majority hours and bought champagne for her and her friends.23But concludes it is unnecessary to address this theory but the court of criminal appeals reversed McCallum’s notes appellant’s argument that paying or offering to pay bribery conviction because there was no evidence that someone to become a candidate is not bribery as the McCallum bought the champagne for the juror “in offense is defined in the statute. I would address exchange for or in consideration of her vote as a appellant’s argument and rule in her favor. Before juror.”24The same is true in this case. The jury could infer Wooten filed her paperwork to run for the Republican that appellant wanted Judge Sandoval to lose and that she nomination, Wooten was not a “public servant” as defined hoped Wooten would not abandon her campaign against in the statute.21So even if appellant or someone in league him. But there is no evidence that appellant’s transfers of with her paid or offered to pay Wooten money as money to Spencer or Spencer’s spending on Wooten’s consideration for Wooten’s becoming a candidate, that campaign were done in exchange for Wooten’s conduct would not be bribery. continuance of her judicial campaign.25

Moreover, I see no evidence that appellant did such a Absent evidence that appellant, her husband, or Spencer thing before Wooten filed her paperwork to become a conferred benefits on Wooten with the intent of candidate, nor that her husband or Spencer committed accomplishing an exchange of benefits for Wooten’s such conduct either with or without appellant’s aid or decision to stay in the race, any finding that appellant, her encouragement. There is evidence that Spencer recruited husband, or Spencer had the proscribed intent is based on Wooten to run against Judge Sandoval, but there is no speculation, not on evidence, and certainly not on proof evidence that he gave her any improper inducement to do beyond a reasonable doubt. There is no evidence to so. support appellant’s bribery convictions under this theory of the case.

b. Remaining a candidate c. Judicial rulings The State’s second theory is that appellant bribed Wooten as consideration for Wooten to proceed with or continue *46 The State’s last theory is that appellant bribed her campaign to become judge of the 380th Judicial Wooten in consideration for Wooten’s presiding over and District Court. The evidence supporting this theory fails issuing favorable rulings in cases in which appellant or on the essential element that the payments were made “as her husband was a party. Again, the evidence falls short consideration for” Wooten’s decision to continue her on the essential element of consideration—that appellant campaign. Again, as McCallum makes clear, a benefit or someone in league with her conferred a benefit on conferred in the mere hope of influencing the recipient is Wooten as consideration for Wooten’s decisions or other not bribery; the benefit must be conferred for the purpose exercises of discretion in a judicial proceeding. of achieving an exchange for the recipient’s decision or action.22 The evidence shows that David Cary was a party to a long-running family-law case pending in the 380th The critical defect in the evidence is the lack of any proof Judicial District Court, and the jury could infer that he of the requisite intent and exchange—there is no evidence thought Judge Sandoval was a bad and unfair judge. The that appellant, David Cary, or Spencer conferred any evidence also shows that appellant intervened in her benefit on Wooten as consideration for Wooten’s husband’s case and also filed a separate lawsuit against decision(s) to stay in the primary race against Judge Israel Suster that was transferred from another court to the Sandoval. The State argues that it did not have to prove 380th Judicial District Court in May 2008. And, as that Wooten ever actually considered dropping out of the previously discussed, the evidence supports reasonable race, and this is correct. But the State did have to prove inferences that appellant transferred money to Spencer six that appellant or someone in league with appellant times during the primary campaign and shortly thereafter conferred benefits on Wooten as consideration for—that at Spencer’s requests (made either to appellant or to her is, in exchange for—Wooten’s staying in the race. husband), and that Spencer used that money to pay for Proving that the benefits were conferred, even under Wooten’s campaign expenses. But the evidence does not dubious circumstances, does not prove the specific intent permit an inference beyond a reasonable doubt that required for bribery. In McCallum, there was evidence appellant paid the money, or Spencer spent the money that McCallum, a litigant in a pending civil trial, with appellant’s intentional aid or encouragement, as © 2015 Thomson Reuters. No claim to original U.S. Government Works. 33 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

consideration for Wooten’s judicial rulings or exercises of that Spencer and David Cary were interested in the discretion in appellant’s or David Cary’s cases. The Caperton decision because appellant had supplied much evidence is equally consistent with the proposition that of the money used in the Wooten campaign, and Caperton appellant merely hoped or believed that Wooten would had the potential to require Wooten’s recusal in future make better rulings than Judge Sandoval had. Under cases on constitutional grounds. But again, this does not McCallum, such evidence is not sufficient to prove show that appellant conferred benefits on Wooten in bribery.26 exchange for favorable rulings in her cases or David Cary’s case. Nor does it show that Spencer or David Cary The after-the-fact evidence regarding Wooten’s handling conferred benefits on Wooten in exchange for favorable of the Carys’ litigation does not aid the State’s position. rulings, with appellant’s intentional aid or encouragement. There was evidence that in early 2009 Spencer tried to Concern over Caperton is as consistent with a mere belief dissuade Benavides from representing David Cary’s that Wooten would make favorable rulings as it is with ex-wife in her ongoing dispute with David Cary, and prior acts of bribery. given the pattern of telephone calls around that time, the jury might reasonably infer that Spencer did so because The testimony of Jay Valentine also put Spencer and he and David Cary did not want Wooten to recuse herself David Cary in a bad light. According to Valentine, David from David Cary’s case. But this does not show that Cary said that he was trying to get Wooten elected, that appellant, individually or through her husband or Spencer, Wooten was going to change the rulings in David Cary’s had bribed Wooten a year earlier. It shows only that family-law case, and that Spencer “fixed his situation David Cary thought Wooten was preferable to other with the judge and was going to get his situation judges who might preside over his case if she recused reversed.”Valentine also testified that Spencer told herself. And Wooten did in fact recuse herself without Valentine that Spencer was able to get Wooten elected making any rulings in David Cary’s case. So Wooten’s and that “he owned her.” There is no evidence that handling of David Cary’s case constitutes no evidence appellant was present when any of the statements that anyone had bribed her. described by Valentine were made.

As to appellant’s December 2007 lawsuit against Suster, In summary, I would hold that the evidence in this record there was evidence that in mid–2008 appellant fought to is insufficient to prove that appellant, Spencer, or David keep that lawsuit in County Court at Law No. 4 instead of Cary conferred a benefit on Wooten as consideration for having it transferred to the 380th Judicial District Court. favorable judicial rulings once Wooten took office. There was also evidence that appellant did not press for Specifically, there is no evidence that any of the three certain discovery in her suit until Wooten had taken the alleged conspirators reached an agreement to an illegal bench in January 2009, that Wooten granted partial relief exchange with Wooten. on a discovery motion filed by appellant, and that appellant later dismissed her suit. Again, this evidence Moreover, even assuming there was sufficient evidence does not show that appellant committed bribery, either that Spencer committed bribery, for appellant to be guilty personally or through her husband or Spencer. Wooten’s of his act, the State had to prove appellant solicited, granting of only part of the relief appellant sought does encouraged, or aided in committing the offense “with not tend to show that appellant or someone in league with intent to promote or assist the commission of the her had previously bribed Wooten in exchange for offense.”30Although appellant’s transfers of money to favorable rulings. Nor does Wooten’s failure to recuse Spencer may have aided him in committing the offense, herself in that matter indicate that appellant or someone in there is still no evidence that she acted with the intent of league with her had previously bribed Wooten.27 promoting or assisting the commission of the offense of bribery. There is no evidence that she knew of any *47 There was other evidence of conduct by appellant’s understanding, express or tacit, between Spencer and husband and Spencer that put them in a bad light. There Wooten that Wooten would make favorable judicial was evidence that in June 2009, Spencer and David Cary rulings in David Cary’s litigation in exchange for the emailed each other about the Supreme Court’s decision in campaign expenditures. For all the evidence shows, Caperton v. A.T. Massey Coal Co., Inc.,28 which imposed appellant may have helped finance Wooten’s campaign in due-process limitations on elected judges’ ability to hear the mere hope of influencing Wooten—or in the mere cases involving their campaign contributors. Notably, hope of defeating Judge Sandoval—without knowledge of Caperton was not a bribery case, and the Court did not any agreement Spencer may have struck with Wooten and question the subjective impartiality of the judge involved without any intent to promote such an illegal agreement. in that case.29The jury reasonably could have concluded

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 34 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

EXCLUSION OF EVIDENCE

4. Conclusion *49 I also disagree with the majority’s conclusion that appellant failed to preserve her fourth issue on appeal. At *48 The State did not prove that the exception found in trial, appellant offered into evidence some findings of fact section 36.02(d) did not apply. Moreover, the State failed and conclusions of law from a trial judge who presided to prove beyond a reasonable doubt that appellant over David Cary’s family-law case after Wooten recused committed the elements of section 36.02(a)(1) or (a)(2), herself. The findings were favorable to David Cary and either individually or under the law of parties. I would critical of his ex-wife. The trial judge excluded the reverse her bribery convictions and acquit her of those evidence. On appeal, appellant argues that the evidence charges. was relevant and admissible to show that David Cary did not need to bribe a trial judge to obtain favorable rulings, and thus that he lacked the intent to commit bribery. The majority refuses to consider the merits of appellant’s argument, concluding that appellant presented a different OTHER CRIMES argument for admissibility in the trial court. According to the majority, appellant’s only argument for admissibility Appellant’s conviction for money laundering stands or in the trial court was that the findings of fact and falls with her bribery convictions. Because I conclude that conclusions of law showed that David Cary’s ex-wife was appellant’s bribery convictions are supported by being “stubbornly litigious.” insufficient evidence, I would also reverse her conviction for money laundering. I would conclude that appellant adequately preserved error in the trial court. She did not argue precisely that the Appellant’s conviction for engaging in organized criminal findings of fact and conclusions of law were admissible to activity stands on a slightly different footing. The State show that David Cary did not need to bribe a judge in submitted three theories of this crime to the jury. One order to win his case. But she did argue, albeit not very theory was that appellant participated in a combination to clearly, that the findings of fact and conclusions of law commit bribery and another was that appellant showed that David Cary’s position was right. The record participated in a combination to commit money shows the following argument by appellant’s counsel: laundering in connection with bribery. Both of those theories fail because of the insufficiency of the evidence Counsel: Judge, we spent, I don’t know, four days to support the commission of bribery at all. The third and proving that David Cary, and by way of David Cary, final theory of engaging in organized criminal activity that Stacy Cary must also be stubbornly litigious. was that appellant participated in a combination to Well, here’s the proof that this stubborn litigiousness commit tampering with a governmental record, was on the right side of right. They were doing specifically Wooten’s preparation and filing of personal the right thing.This Jennifer Cary character is the financial statements that did not identify appellant, David one being stubbornly litigious. Cary, or Spencer as people who had given Wooten loans or gifts during the relevant time period. This theory is The Court: I think in the end, all that’s irrelevant. I unaddressed by the majority because it is unnecessary to think there’s been evidence that both sides were the majority’s disposition of the case. For present litigious and was heated. I don’t think who purposes, it is enough for me to state my conclusion that ultimately prevailed in the end on the custody case there is no evidence in the record that appellant makes any difference. intentionally participated in any combination for the purpose of having Wooten commit the offense of Counsel: Judge, I think it goes to show she was the tampering with a government record. one bringing the heat, not us, and that we’re just trying to do the right thing. That’s why we have I would reverse appellant’s convictions for engaging in courts. organized criminal activity and money laundering based on insufficiency of the evidence, and I would acquit her (Emphases added.) In other words, appellant’s counsel of those charges. argued to the trial judge that the findings of fact and conclusions of law were admissible to show that David Cary was in the right in his child-custody litigation against his ex-wife. Appellant has made the argument with greater detail on appeal, but there is nothing wrong

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 35 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

with that; arguments made in the heat of trial need not CONCLUSION satisfy standards of appellate eloquence in order to preserve error. I would reverse all of appellant’s convictions. Because the majority does not, I respectfully dissent. I would conclude that appellant’s fourth issue was sufficiently preserved in the trial court. Given that I would reverse all of her convictions, I will refrain from addressing the merits of appellant’s fourth issue.

1 Stacy posted an appeal bond, thereby delaying the commencement of her community supervision. SeeTEX.CODE CRIM. PROC. ANN. art. 44.04(c) (West 2006); Lebo v. State, 90 S.W.3d 324, 329 (Tex.Crim.App.2002) (those placed on ten years’ community supervision may seek release on bail pending appeal).

2 The divorce decree signed by Sandoval named the parties joint managing conservators with David paying child support of $500 per month. David and Jennifer were awarded nearly equal possession of the children. The decree required the parents to reside in Dallas or Collin County. The decree also ordered each parent to pay one-half of the children’s school tuition for the 2004 school year and that $75,000 from an investment account owned by David be used to establish a fund for the children’s educational expenses. In re C.H.C., 396 S.W.3d 33, 39 (Tex.App.-Dallas 2013, no pet.).

3 This Court issued a memorandum opinion on July 19, 2005 relating to a petition for writ of mandamus filed by David, in which he complained that Sandoval erred in denying his motion to dismiss Jennifer’s petition to modify the parent-child relationship and, alternatively, denying his motion to transfer venue of the SAPCR to Dallas County, Texas. We concluded that David had not shown Sandoval clearly abused his discretion in denying his motions, and we denied David’s petition for writ of mandamus. In re David Cary, No. 05–05–00979–CV, 2005 WL 1670797, at *1 (Tex.App.-Dallas July 19, 2005, orig. proceeding) (mem.op.).

4 Other Sandoval rulings included appointing Jennifer as the sole managing conservator of the children, modifying the schedule for the parents’ possession of the children by denying David possession of the children on weekdays, increasing the amount of child support David was to pay and ordering payment of retroactive child support, modifying the terms for reimbursement of the children’s medical expenses, and ordering David to place $30,000 each year into an account for private education and medical expenses of the children. See In re C.H.C., 396 S.W.3d at 39.

5 This Court issued a memorandum opinion on March 13, 2007 relating to a petition for writ of mandamus filed by David, in which he complained that Sandoval abused his discretion in denying David’s motion to transfer the SAPCR to Dallas County. We concluded that David had not shown Sandoval abused his discretion, and we denied David’s petition for writ of mandamus. In re David F. Cary, No. 05–07–00265–CV, 2007 WL 740895, at *1 (Tex.App.-Dallas March 13, 2007, orig. proceeding [mand. denied] ) (mem.op.).

6 Poinsett testified that in 2007, he met with Spencer, who was interested in issues related to family law and, specifically, issues related to grandparents’ access to children. Also in 2007, Poinsett met with David and Stacy, and they spoke with him about “presumed equal joint parenting issues.”

7 Stacy paid Spencer approximately $15,000 in 2007. That payment was not the subject of a bribery charge.

8 Stacy’s brother, Scott Nicholas Stine (Stine), testified that Stacy is an owner of the family business, and she had other individual business ventures in addition to the family business. He testified that his family has hired consultants to advise on new investments, and such use of consultants is a “standard thing” in the oil industry. The consultants’ fees would be divided among the family members when the consultants were hired for family business. When Stine hired consultants on his individual business deals, he paid those consultants. Stine testified that he vetted business consultants before they were hired by meeting with them and considering recommendations. According to Stine, the family business was sold on November 30, 2007 and the $6,375,000 proceeds were divided between Stacy, Stine, and their sister. To his knowledge, Stacy never invested in Smart Grid technology. Stacy had not shown Stine the DHI and Smart Grid documents provided her by Spencer, however Stine reviewed those documents before Stacy’s trial at the request of Stacy’s attorney. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 36 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

9 Spencer was at least generally familiar with David’s SAPCR proceeding. Spencer acknowledged discussing the case with David and testified that David had sent him pleadings in the case.

10 Steusloff testified that if a candidate files a statement that she is not going to accept or spend more than five hundred dollars on an election, she is not required to file a pre-election campaign finance report thirty days and eight days before the election.

11 Wendy Kelly, an investment analyst at the financial planning firm of Paladini Financial, testified that Stacy was a customer of Paladini Financial. On the morning of January 3, 2008, Stacy requested that Kelly wire $50,000 from one of her accounts to Security State Bank, Fredericksburg, Texas, for the benefit of Spencer. The wire transfer did not successfully transmit. Kelly contacted Stacy and advised her that the wire transfer had failed and that there was additional paperwork Stacy needed to complete before a third-party wire transfer could be accomplished. Stacy then transferred money from one of her accounts to an account at Tolleson Private Bank, which was able to wire transfer $50,000 to Spencer.

12 There are discrepancies between the invoices Spencer produced in a previous hearing and the invoices he submitted to the Wooten campaign as reported by Wooten to the Ethics Commission. Wooten’s campaign finance reports indicate she paid more to Spencer than was billed on the invoices produced by Spencer in the previous hearing. For example, Spencer submitted multiple invoices from Booker Industries to the Wooten campaign, but Spencer had not paid Booker Industries. Call Plus, a phone bank vendor that made telephone calls on behalf of the Wooten campaign, appears to be another vendor which had not received payment from Spencer, although Spencer invoiced the Wooten campaign for that expense. Spencer invoiced the Wooten campaign $403.15 for a purported organizational meeting with counsel and consultants, and Swihart testified that does not appear to be a legitimate charge. According to Swihart, Spencer overcharged the Wooten campaign for radio advertising when he invoiced the campaign for $17,005, but paid only $14,454.25 for that advertising.

13 Valentine was terminated by TDI on April 9, 2009 for “lack of performance.” Valentine filed an employment discrimination complaint, asserting he was terminated by TDI for making the sexual harassment complaint. Valentine’s employment discrimination complaint was arbitrated. According to Johnson, Valentine’s claims were denied by the arbitrator; however, TDI was required to pay $20,000 of Valentine’s attorney’s fees and $10,000 for Valentine’s shares of TDI stock.

14 It is proper for an indictment to allege different methods of committing the offense in the conjunctive and for the jury to be charged in the disjunctive. Vaughn v. State, 634 S.W.2d 310, 312 (Tex.Crim.App. [Panel Op.] 1982). If there is sufficient evidence to prove one of the methods of committing the offense of bribery, this Court need not consider whether the evidence is also sufficient to prove the alternative theory or theories. See Pinkerton v. State, 660 S.W.2d 58, 62 (Tex.Crim.App.1983).

15 Stacy does not contend that a candidate for public office running in a party primary is not considered a public servant under the bribery statute. TEX. PENAL CODE ANN. § 1.07(41).See Kaisner v. State, 772 S.W.2d 528, 529 (Tex.App.-Beaumont 1989) (“As a candidate in a party primary, Robinson was clearly a public servant under the [Penal] Code. The decision to withdraw from the runoff would have been the exercise of discretion as a public servant.”), pet. ref’d,780 S.W.2d 226 (Tex.Crim.App.1989) (per curiam).

16 Stacy does not contend that a sitting judge ruling on pending cases is not considered a public servant under the bribery statute. TEX. PENAL CODE ANN. § 1.07(41).

17 In her appellate briefing, Stacy acknowledged that the evidence shows Spencer did not immediately bill Wooten’s campaign for campaign expenditures. The evidence showed Wooten’s campaign was not billed for most of the campaign expenses paid by Spencer from the money transferred to him by Stacy until after the Republican primary. The jury heard testimony from Spencer that he did not want the expenditures timely shown on Wooten’s campaign finance reports because those are public records and he did not want it publicly known how much money was being spent on Wooten’s campaign. The jury also heard the testimony of Steusloff that a candidate must report a campaign expenditure when the amount is readily determinable, regardless of when the expense is actually billed. See Election Law Op. No. JWF–22 (1983) (where contract was entered into by a campaign to rent office space at a rate that exceeded $50 per month and was an expenditure under the election code upon the creation of the lessee’s obligation to pay a definite amount of money, the amount of expenditure was readily determinable at the time of contracting, and election code required candidate to report on applicable sworn statement the total amount of rent payable under the contract as an expenditure as of the day of contracting).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 37 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

18 Spencer later changed his testimony and indicated that David gave him a business card at the end of the October 2, 2007 meeting.

19 See Morales v. State, 357 S.W.3d 1, 5 (Tex.Crim.App.2011); Martinez v. State, 924 S.W.2d 693, 699 (Tex.Crim.App.1996) (“Following the law as it is set out by the Texas Legislature will not be deemed error on the part of a trial judge.”).

20 Under section 34.02(a) of the penal code, a person commits the offense of money laundering if the person knowingly: (1) acquires or maintains an interest in, conceals, possesses, transfers, or transports the proceeds of criminal activity; (2) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity; (3) invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity; or (4) 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) (West 2011).

21 Section 37.10(a)(5) of the penal code provides that a person commits the offense of tampering with a governmental record if he “makes, presents, or uses a governmental record with knowledge of its falsity.”TEX. PENAL CODE ANN. § 37.10(a)(5) (West Supp.2014).

22 See also Lofton v. State, No. 05–10–01265–CR, 2011 WL 6225415, at *2 (Tex.App.-Dallas Dec.9, 2011, pet. ref’d) (not designated for publication) (issue is whether complaining party brought to trial court’s attention the very complaint the party is now making on appeal) (citing Martinez, 91 S.W.3d at 335–36); Segovia v. State, No. 05–09–01070–CR, 2010 WL 2387511, at *3 (Tex.App.-Dallas June 16, 2010, no pet.)(not designated for publication) (trial court never had opportunity to rule upon specific rationale for admissibility; because appellant did not raise in trial court argument in support of admissibility he made on appeal, he forfeited his appellate challenge).

23 Even if this argument had been made before the trial court, it is unpersuasive. The evidence Stacy would like to have in the record shows, according to Stacy, that when a judge other than Sandoval was presiding over David’s SAPCR, rulings were more favorable to David. This evidence does not advance Stacy’s cause.

1 TEX. PENAL CODE ANN. § 36.02 (West 2011) (emphasis added).

2 McCallum v. State, 686 S.W.2d 132, 135 (Tex.Crim.App.1985).

3 Id. at 136.

4 Id. at 135 (quoting Model Penal Code, Reprint—Proposed Official Draft, § 240.1 (May 4, 1962)) (emphasis in original).

5 See Martinez v. State, 696 S.W.2d 930, 933 (Tex.App.-Austin 1985, pet. ref’d).

6 TEX. PENAL CODE ANN. § 7.01 (West 2011).

7 Id.§ 7.02(a)(2).

8 See Beier v. State, 687 S.W.2d 2, 3 (Tex.Crim.App.1985).

9 Winfrey v. State, 393 S.W.3d 763, 768 (Tex.Crim.App.2013).

10 Id.

11 Id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 38 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

12 Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009).

13 See Perez v. State, 323 S.W.3d 298, 307 n. 5 (Tex.App.-Amarillo 2010, pet. ref’d).

14 TEX. PENAL CODE ANN. § 2.02 (West 2011).

15 SeeTEX. PENAL CODE ANN. § 32.06(d).

16 TEX. ELEC.CODE ANN. § 251.001(2)-(7) (West 2010).

17 SeeTEX. PENAL CODE ANN. § 36.02(a)(4) (emphasis added).

18 This scenario is different from the fact pattern presented in cases like Valencia v. State, No. 13–02–020–CR, 2004 WL 1416239 (Tex.App.-Corpus Christi June 24, 2004, pet. ref’d) (mem. op., not designated for publication).Valencia was a routine bribery case in which a county commissioner offered to vote for two men to be appointed as county constables if they agreed to exercise their discretion to hire as deputies two people designated by the county commissioner. Id. at *1. A paid job is clearly a benefit, unlike a decision to run for office or a decision to continue an already-started political campaign.

19 See United States v. Ciavarella, 716 F.3d 705, 731 (3d Cir.2013) (“A payment constitutes a bribe as long as the essential intent—a specific intent to give or receive something of value in exchange for an official act—exists.”) (internal quotation and citation omitted), cert. denied, ––– U.S. ––––, 134 S.Ct. 1491, 188 L.Ed.2d 378 (2014); United States v. Wright, 936 F.Supp.2d 538, 545 (E.D.Pa.2013) (“Bribery involves a ‘quid pro quo—a specific intent to give or receive something of value in exchange for an official act.’”) (citation omitted).

20 See Luzerne Cnty. Retirement Bd. v. Makowski, 627 F.Supp.2d 506, 561 (M.D.Pa.2007) (“[A]ccepting a compaign contribution does not equal taking a bribe unless the payment is in exchange for an explicit promise to perform or not perform an official act.”) (internal quotation and citation omitted).

21 SeeTEX. PENAL CODE ANN. § 1.07(41) (West Supp.2013) (defining “public servant”).

22 See generally McCallum, 686 S.W.2d at 135–36, 139 (reversing bribery conviction for lack of evidence of “a bilateral agreement”).

23 Id. at 136–39.

24 Id. at 139.

25 As the majority notes, there was some evidence that Wooten had a line of credit. Neither side developed this evidence, nor did either side develop a detailed description of how much funding was necessary for Wooten to run a financially reasonable judicial campaign. The State argues that appellant’s funds “were necessary for Wooten to run for and maintain her campaign for the seat of the 380th Judicial District Court,” but there is absolutely no evidence that this is so. It is entirely possible that Wooten simply would have run a less-expensive campaign if appellant’s money had not been available.

26 See McCallum, 686 S.W.2d at 134–35.

27 In my view, judicial rulings are rarely persuasive evidence of bribery. The State can always argue that rulings favorable to the person accused of bribery demonstrate a quid pro quo, and that rulings against that person are made only to cover the parties’ tracks, even if those rulings are perfectly reasonable under the law and the facts. The State can argue that rulings that split the difference, like Wooten’s ruling on appellant’s motion, are sinister from both angles. Only a truly outlandish ruling that is utterly divorced from the facts and law of the case might constitute some evidence of bribery—and even then, the ruling might reflect only the judge’s lack of common sense rather than bribery. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 39 Cary v. State, Not Reported in S.W.3d (2014) 2014 WL 4261233

28 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009).

29 Id. at 882.

30 TEX. PENAL CODE ANN. § 7.02(a)(2).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 40 ______________________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ______________________________

THE STATE OF TEXAS, Appellee/Petitioner. ______________________________

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

APPENDIX C STATE’S PETITION FOR DISCRETIONARY REVIEW ACCEPTED 05-13-01010-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 9/10/2014 4:38:29 PM LISA MATZ CLERK

5th Court of Appeals FILED: 9/15/2014 Lisa Matz, Clerk No. 05-13-01010-CR ______________________________ RECEIVED IN 5th COURT OF APPEALS IN THE COURT OF APPEALS DALLAS, TEXAS FIFTH DISTRICT OF TEXAS 9/10/2014 4:38:29 PM LISA MATZ DALLAS, TEXAS Clerk ______________________________

DAVID FREDERICK CARY, Appellant, v.

THE STATE OF TEXAS, Appellee. ______________________________

On Appeal from the 366th Judicial District Court Of Collin County Texas ______________________________ STATE’S BRIEF ______________________________

GREG ABBOTT EDWARD L. MARSHALL Attorney General of Texas Chief, Criminal Appeals Division

HARRY E. WHITE *GRETCHEN B. MERENDA Assistant Attorney General Assistant Attorney General State Bar No. 24010233

P. O. Box 12548, Capitol Station Austin, Texas 78711 Telephone: (512) 936-1400 Facsimile: (512) 936-1280 *Lead Appellate Counsel _____________________________

ATTORNEYS FOR THE STATE TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

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

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

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

A. Spencer’s consulting work with Stacey and TDI. . . 30

B. Spencer’s campaign work with Wooten . . . . . . . . . . . 34

C. The flow of monies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

D. Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 48

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

I. STATE’S REPLY TO POINT OF ERROR ONE . . . . . . . . . . . . 51

A. Standard of review for sufficiency of the evidence challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

B. Applicable law to establish bribery . . . . . . . . . . . . . . . . . 52

C. Applicable law to the six charges of bribery against Appellant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

D. The evidence is sufficient to support the jury’s findings of consideration for favorable rulings and Appellant’s intent to commit bribery. . . . . . . . . . . . . . . . . . . . . . . . . . 56

i E. The evidence sufficiently supports Appellant’s convictions for bribery as charged under § 36.02 (a)(1), (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

F. The evidence is sufficient to establish that a “public servant” was bribed by Appellant in exchange for the public servant’s exercise of discretion, and thus sufficient to sustain Appellant’s convictions for bribery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

II. STATE’S REPLY TO APPELLANT’S POINT OF ERROR THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

A. Applicable law to establish money laundering. . . . . . . . . 79

B. The evidence was sufficient to support Appellant’s conviction for money laundering. . . . . . . . . . . . . . . . . . . . 79

III. STATE’S REPLY TO APPELLANT’S POINT OF ERROR TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

A. Standard of review for a challenge to the sufficiency of the evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

B. Applicable law to establish EOCA . . . . . . . . . . . . . . . . . . 81

1. Applicable law to underlying criminal activities of bribery and money laundering. laundering . . . . . . . 82

2. Applicable law to underlying criminal activities of bribery and money laundering. . . . . . . . 83

C. Sufficient evidence supports Appellant’s conviction for EOCA in committing or conspiring to commit bribery and/or money laundering. . . . . . . . . . . . . . . . . . . 84

ii D. Sufficient evidence supports Appellant’s conviction for EOCA in the commission or conspiracy to commit tampering with a governmental record. . . . . . . . . . . . . . . 85

IV. STATE’S REPLY TO POINT OF ERROR FOUR . . . . . . . . . . . 88

A. Ineffective Assistance of Counsel Standards . . . . . . . . . . 88

B. Appellant was not Prejudice by Counsel’s Performance at the Punishment Phase of Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

V. STATE’S REPLY TO POINTS OF ERRORS FIVE AND SIX . 98

A. Appellant’s Waived Challenges to the Constitutionality of Texas Penal Code Section 36.02. . . . . . . . . . . . . . . . . . 98

A. Forfeiture of Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

B. Standard of Review for Claim Five . . . . . . . . . . . . . . . . 100

C. The Benefit Given by Appellant to Ms. Wooten Did Not Constitute Protected First Amendment Speech. . . 100

D. Standard of Review for Claim Six . . . . . . . . . . . . . . . . . 108

E. Section 36.02 is Not Unconstitutionally Overbroad. . . . 110

F. Section 36.02 is Not Unconstitutionally Vague. . . . . . . 111

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF APPELLATE PROCEDURE 9.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

iii INDEX OF AUTHORITIES

Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) . . . . . . . . . 55

Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1982) . . . . . . 84, 85

Alvarado v. State, 912 S.W.2d 199 (Tex. Crim. App. 1995) . . . . . . . 113

Arroyo v. State, 117 S.W.3d 795 (Tex. Crim. App. 2003) . . . . . . . . . 101

Bates v. State, 587 S.W.2d 121 (Tex. Crim. App. 1979) . . . . . . . . . . . 77

Beasley v. State, 838 S.W.2d 695 (Tex. App.–Dallas 1992) . . . . . . . . 95

Beier v. State, 687 S.W.2d 2 (Tex. Crim. App. 1985) . . . . . . . . . . . . . 57

Boykin v. State, 818 S.W.2d 782 (Tex. Cri. App. 1991) . . . . . . . . . . . 104

Briggs v. State, 789 s.W.2d 918 (Tex. Crim. App. 1990) . . . . . . . . . . 109

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . 51

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . 102, 107

In re C.H.C., 396 S.W.3d 33 (Tex. App.– Dallas 2013) . . . . . . . . . . . 3, 4

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) . . . . . 41, 42, 66

Citizens United v. FEC, 558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . 102

Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Colten v. Kentucky, 407 U.S. 104 (1972) . . . . . . . . . . . . . . . . . . . . . . 111

Connally v. General Construction Company, 269 U.S. 385 (1925) . . 114

iv Cordova v. State, 698 S.W.2d 107 (Tx. Crim. App. 1985) . . . . . . . . . . 58

Crum v. State, 946 S.W.2d 349 (Tex. App.–Houston [14th Dist.] 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 87

Davidson v. State, 737 S.W.2d 942 (Tex. App.–Amarillo, 1987) . . . . 102

Draughon v. State, 831 S.W.2d 331 (Tex. Crim. App. 1992) . . . . . . . . 98

Duncantell v. State, 230 S.W.3d 835 (Tex. App.–Houston [14th Dist.] 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim

Eichelberger v. State, 232 S.W.3d 225 (Tex. App.– Fort Worth 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Ervin v. State, 331 S.W.3d 49 (Tex. App.– Houston [1st Dist.] 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52, 81

Evans v. State, 656 S.W.2d 65 (Tex. Crim. App. 1983) . . . . . . . . . . . . 94

Federal Elections Commission v. Beaumont, 539 U.S. 146 (2003) . . 106

Fuller v. State, 827 S.W.2d 919 (Tex. Crim. App. 1992) . . . . . . . . 84, 85

Gahl v. State, 721 S.W.2d 888 (Tex. App,.–Dallas 1986) . . . . . . . . . . 77

Gamboa v. State, 822 S.W.2d 328 (Tex. App.–Beaumont 1992) . . . . . 91

Garza v. State, 841 S.W.2d 19 (Tex. App.–Dallas 1992) . . . . . . . . 52, 81

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011) . . . . . . 51, 76, 80

Gibbs v. State, 7 S.W.3d 175 (Tex. App.–Houston [1st Dist.] 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

v Gonzales v. State, 723 S.W.2d 746 (Tex. Crim. App. 1987) . . . . . . . . 53

Ex Parte Gonzalez, 945 S.W.2d 830 (Tex. Crim. App. 1997) . . . . . . . 88

Grayned v. Rockford, 408 U.S. 104 (1972) . . . . . . . . . . . . . . . . . . . . . 100

Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) . . . . 52, 58, 67

Hagens v. State, 979 S.W.2d 788 (Tex. App.–Houston [14th Dist.] 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Haley v. State, 1 S.W.3d 510 (Tex. Crim. App. 2005) . . . . . . . . . . . . . 98

Hart v. State, 89 S.W.3d 61 (Tex. Crim. App. 2002) . . . . . . . . . . . 57, 82

Hayes v. State, 265 S.W.3d 673 (Tex. App.–Houston [1st Dist.] 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 55, 67

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) . . . Passim

Holmes v. State, 380 S.W.3d 307 (Tex. App.–Fort Worth 2012) . . . 100

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) . . . . . . 52, 58, 81

Hubbard v. State, 668 S.W.2d 419 (Tex. App.–Dallas 1984) . . . . . . . 54

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) . . . . . . . . 51, 80

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . Passim

Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003) . . . . . . . . . . 101

Joubert v. State, 235 S.W.3d 729 (Tex. Crim. App. 2007) . . . . . . 94, 95

Kaisner v. State, 772 S.W.2d 528 (Tex. App.–Beaumont 1989) . . . . . 78

vi Kaisner v. State, 780 S.W.2d 226 (Tex. Crim. App. 1989) . . . . . . . . . 78

Karenev v. State, 261 S.W.3d 428 (Tex. Crim. App. 2009) . . . . . . . . . 99

Kfouri v. State, 312 S.W.3d 89 (Tex. App.–Houston [14th Dist.] 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991) . . . . . 84, 85

Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1995) . . . . . . 53, 113

Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) . . . . . . . . . . . 100

Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) . . . . . . . . . . . . 89

Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002) . . . . . . . . . . 55

Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) . . . . . . . . . . . 98

Ex Parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011) . . . . . . . . 96

Martinez v. State, 696 S.W.2d 930 (Tex. App.– Austin 1985) . . . 53, 57

McCallum v. State, 686 S.W.2d 132 (Tex. Crim. App. 1985) . . . . 53, 71

McConnell v. Federal Elections Commission, 540 U.S. 93 (2003) . . 106

McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 103

McElroy v State, 720 S.W.2d 490 (Tex. Crim. App. 1986) . . . 72, 73, 74

McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) . . . . . . . 89

McGee v. State, 909 S.W.2d 516 (Tex. App. –Tyler 1995) . . . . . . 82, 87

vii McMorris v. State, 516 S.W.2d 927 (Tex. Cr. App. 1974) . . . . . 111, 114

Mendoza v. State, 2008 WL 2403769 (Tex. App.–Houston [14 Dist.[, Jun 12, 2008) . . . . . . . . . . . . . . . . . . . . . . . 90

Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.–Houston [14th Dist.] 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . 90

Miller v. State, 83 S.W.3d 308 (Tex. App.–Austin 2002) . . . . . . . . . . 58

Montoya v. State, 65 S.W.3d 111 (Tex. App.–Amarillo 2000) . . . . . . . 95

Montoya v. State, 810 S.W.2d 160 (Tex. Crim. App. 1989) . . . . . . . . . 56

Moore v. Avoyelles Corr. Ctr., 253 F.3d 870 (5th Cir. 2001) . . . . . . . 105

Morris v. State, 940 S.W.2d 610 (Tex. Crim. App. 1996) . . . 94, 95, 111

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) . . . . . . 53, 113

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 2001) . . . . . . . . . . 89

Munoz v. State, 29 S.W.3d 205 (Tex. App.–Amarillo 2000) . . . . . . . . . 86

Mustard v. State, 711 S.W.2d 71 (Tex. App.–Dallas 1986) . . . . . . . . . 53

Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974) . . . . . . . 113

Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004) . . . . . . . . . . . . 98

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) . . . . . . . . 111

Patterson v. State, 950 S.W.2d 196 (Tex. App.–Dallas 1997) . . . . 56, 67

viii Pesina v. State, 949 S.W.2d 374 (Tex. App.–San Antonio 1997) . . . . 58

Ex Parte Prior, 540 S.W.2d 723 (Tex. Crim. App. 1976) . . . . . . . . . . . 58

Prystash v. State, 3 S.W.3d 522 (Tex. Cri. App. 1999) . . . . . . . . . . . 101

Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1994) . . . . . . 56, 58

Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006) . . . . . . . 89

Sanchez v. State, 995 S.W.2d 677 (Tex. Crim. App. 1999) . . . . . Passim

Swearingen v. State, 101 S.W.3d 89 (Tex. Crim. App. 2003) . . . . . . 113

State v. Garcia, 823 S.W.2d 793 (Tex. App.–San Antonio 1992) . . . 103

State v. Yount, 853 S.W.2d 6 (Tex. Crim. App. 1993) . . . . . . . . . . . . 101

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . Passim

Thomas v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) . . . . . . . . 88, 91

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) . . . . . . . . . 89

Torres v. State, 92 S.W.3d 911 (Tex. App.–Houston [14th Dist.] 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Tovar v. State, 978 S.W.2d 584 (Tex. Crim. App. 1998) . . . . . . . . . . . 87

Trenor v. State, 333 S.W.3d 799 (Tex. App.–Houston [1st Dist.] 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 68

United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) . . . . . . . 111

Vasquez v. State, 665 S.W.2d 484 (Tex. Crim. App. 1984) . . . . . . . . . 53

ix Vela v. Estelle, 708 F.2d 954, 965 (5th Cir. 1983) . . . . . . . . . . . . . . . . 96

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Walker v. State, 530 s.W.2d 572 (Tex. Crim. App. 1975) . . . . . . . . . . 95

Watts v. State, No. 09-11-00383-CR, 2012 WL 403859, *2 (Tex. App. – Beaumont 2012) . . . . . . . . . . . . . . . . . . . . . . . . 57, 58

Weyandt v. State, 35 S.W. 3d 144 (Tex. App.–Houston [14th Dist.] 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Wright v. State, 28 S.W.3d 526 (Tex. Crim. App. 2000) . . . . . . . . . . . 98

Constitutions, Statutes and Rules

U.S. Const., amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim

U.S. Const. Amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Model Penal Code § 240.1, Comment 4(b), (c) . . . . . . . . . . . . . 53, 71, 72

Tex. Penal Code § 1.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Tex. Penal Code § 1.07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Tex. Penal Code Ann. § 2.02 (Vernon 2013) . . . . . . . . . . . . . . . . . 69, 70

Tex. Penal Code Ann. § 6.03 (Vernon 2008) . . . . . . . . . . . . . . . . . . . . 57

Tex. Penal Code Ann. § 7.01 . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56, 67

Tex. Penal Code Ann. § 7.02 . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56, 67

x Tex. Penal Code Ann. § 34.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 82

Tex. Penal Code Ann. § 36.02 (Vernon 2008) . . . . . . . . . . . . . . . Passim

Tex. Penal Code Ann. § 36.02 (West 2007) . . . . . . . . . . . . . . . . . . . . 111

Tex. Penal Code Ann. § 36.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Tex. Penal Code Ann. § 37.01 (Vernon 2008) . . . . . . . . . . . . . . . . . . . 83

Tex. Penal Code Ann. § 37.10 (Vernon 2008) . . . . . . . . . . . . . . . . . . . 83

Tex. Penal Code Ann. § 71.01 (Vernon 2008) . . . . . . . . . . . . . . . . 81, 86

Tex. Penal Code Ann. § 71.02 (Vern0n 2008) . . . . . . . . . . . . . . . . . . . 81

Tex. Code Crim. Proc. Ann. Art. 1.05 (West 2011) . . . . . . . . . . . . . . . 88

Tex. Code Crim. Pro. Art. 37.07 (West 2010) . . . . . . . . . . . . . . . . . . . 92

Tex. Ann. Civ. Stat. Art. 5472(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Tex. R. App. Proc. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 99

Tex. R. App. Proc. 38.1 (I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Texas Elec. Code § 251.001 (West 2008) . . . . . . . . . . . . . . . . . . . . 70, 77

Texas Elec. Code § 254.031 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Texas Elec. Code § 253.155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Title 15, Election Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim

Tex. Gov’t Code § 311.021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

xi Tex. Gov’t Code § 572.021 (Vernon 2008) . . . . . . . . . . . . . . . . . . . . . . 84

Tex. Gov’t Code § 572.023 (Vernon 2008) . . . . . . . . . . . . . . . . 84, 85, 87

Tex. Gov’t Code, Chapter 305 . . . . . . . . . . . . . . . . . . . . . . . . 69, 70, 110

Branch’s Ann. P.C., 3rd ED., Vol. III, § 36.02 . . . . . . . . . . . . . . . . . . . 71

Tex. Const. Art I, sec. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

xii STATEMENT REGARDING ORAL ARGUMENT

The State does not believe that oral argument is necessary to assist

the Court in resolving this appeal, especially in light of its recent decision

of co-conspirator Stacy Stine Cary v. State, No. 05-12-01421 (Tex.

App.–Dallas Aug 28, 2014), 2014 WL 4261233. Should the Court, however,

determine that argument is advised, the State will attend and participate

to assist the Court.

In a Superceding Indictment filed on July 14, 2011, the Grand Jury

of the 366th Judicial District Court of Collin County, Texas, indicted

Appellant, David Cary, on one count of engaging in organized criminal

activity (“EOCA”), six counts of bribery, and one count of money laundering

in cause number 366–81636–2011. 1 CR 157-65.1 Count One alleged that

Appellant worked in combination with his wife Stacy Cary, judicial

candidate and ultimately judge-elect Suzanne Wooten, and Wooten’s

campaign manager James “Stephen” Spencer, in committing bribery,

money laundering, or tampering with a government record. 1 CR 157-59.

Counts Two through Seven alleged that Appellant bribed Wooten in

1 “CR” refer to the Clerk’s Record of papers filed in the trial court, preceded by the volume number and followed by the page number(s). “RR” refers to the Reporter’s Record of the transcribed trial proceedings which occurred April 16, 2013 through April 26, 2013, preceded by the volume number and followed by the page number(s). “MNT RR” refers to the transcribed motion for new trial hearing, followed by the page number(s).

1 exchange for Wooten entering the judicial race, continuing her campaign

for judge, and presiding over and issuing favorable rulings in cases to

which Appellant and his wife were a party. 1 CR 159-64. And Count Eight

alleged Appellant was funding the criminal activity of bribery. 1 CR 164-

65. On April 16, 2013, Appellant pleaded not guilty to each charge. 2 RR

41-42. On April 25, 2013, the jury found Appellant guilty of all eight

counts. 9 RR 117-19; 2 CR 654-58, 681-97 (Judgment). On April 26, 2013,

Appellant was sentenced in each count to fourteen years’ imprisonment. 10

RR 113-16; 1 CR 666-76. Appellant filed a motion for new trial claiming

that trial counsel, Lawson Pedigo, was ineffective for failing to make a

timely election of punishment by the court. 2 CR 757-1014; MNT RR 4-

100. On June 21, 2013, after hearing evidence on the motion for new trial,

the trial court denied Appellant’s motion. MNT RR 100. Subsequently,

Appellant filed a timely notice of appeal on July 25, 2013. 2 CR 1027-28.

Because the State presented nearly the same evidence at Appellant’s

trial, the following summary of evidence is largely excerpted from this

Court’s evidentiary summary in Stacy Stine Cary v. State, No. 05-12-

01421-CR, 2014 WL 4261233, *29-33 (Tex. App.—Dallas Aug. 28, 2014)

(unpub.). The State-Appellee marks all altered text within brackets

2 below—primarily, citations to Appellant’s trial records, as well as any text

changes based upon the specific facts presented at Appellant’s trial.

Rick Robertson

David Cary (David) filed for divorce from Jennifer Cary (Jennifer) in December 2003. [2 RR 101; State’s Exhibit (“SX”) 7A.] The divorce petition was filed in the 380th Judicial District Court of Collin County, Texas. [Id.; 2 RR 99-100.] Judge Charles Sandoval (Sandoval) was the presiding judge of that court. [2 RR 112-14.] Rick Robertson, a board certified family law attorney practicing in Collin County, represented Jennifer throughout the divorce proceeding. [2 RR 84, 87.] Robertson testified at trial regarding the divorce and a subsequent suit affecting the parent-child relationship (SAPCR). [2 RR 86-172.] . . . [I]n the divorce proceeding and subsequent SAPCR[ (Suit Affecting the Parent-Child Relationship),] many depositions were taken and hearings conducted. [2 RR 124-26.]

In the divorce proceeding, David and Jennifer reached an agreement regarding the terms of possession of their twin daughters, the amount of child support, and a fund to be established by David for the children’s education expenses. Sandoval signed the final divorce decree on October 5, 2004.2 [SX 7A; 2 RR 105-06.] In April 2005, Jennifer filed a SAPCR in the 380th Judicial District Court. [2 RR 106.] [David filed a motion to transfer the proceeding to Dallas County, Texas, which Jennifer opposed. [2 RR 112-15.] Sandoval denied David’s motion to transfer the case.3 [Id.]] The parties mediated

2 [footnote omitted, referring to facts in In re C.H.C., 396 S.W.3d 33, 39 (Tex. App.-Dallas 2013, no pet.).] 3 [footnote omitted, discussing actions in In re David Cary, No. 05-05- 00979-CV, 2005 WL 1670797, at *1 (Tex. App.—Dallas July 19, 2005, orig. proceeding) (mem. op.).]

3 Jennifer’s SAPCR, and a partial mediated settlement agreement was signed in June 2005 and filed in Sandoval’s court in July 2005. [2 RR 106-12.]

In the summer or fall of 2005, a hearing in the SAPCR proceeding was conducted on Jennifer’s motion for temporary orders. [2 RR 113-14.] In April 2006, David filed a motion to recuse Sandoval. [2 RR 115-17.] On May 8, 2006, the judge appointed to hear the motion to recuse denied that motion. [2 RR 117-19.] . . . [A] trial was conducted before Sandoval concerning a number of issues in the SAPCR. [2 RR 118-22.] Among Sandoval’s rulings following the trial was an order that David pay Jennifer’s attorney’s fees in the amount of $416,543.16.4 [2 RR 124-26.] A final order of modification was signed by Sandoval on December 1, 2006. [2 RR 127.] Robertson testified that David appealed almost every order signed by Sandoval, and Robertson found it unusual that neither David nor Jennifer appealed Sandoval’s final order of modification. [2 RR 119-21, 126-28.] In January 2007, David filed a motion to modify the prior order in the SAPCR. [2 RR 128-29.] Robertson testified that in moving to modify a SAPCR order, one typically must allege some change in circumstances occurring since the last order. [2 RR 128.] Robertson was surprised by David’s motion to modify, because it was filed the month after Sandoval’s December 2006 final order of modification[, and that i]n his motion to modify, David asserted he had secured full-time employment at a higher salary than attributed to him at the entry of prior modification orders,[ and] he had married Stacy . . . resulting in a [change] in his monthly expenses . . . [2 RR 128-29.] David also moved again for transfer of the proceeding to Dallas County.5 [2 RR 129-30. 4 [footnote omitted, describing “other Sandoval rulings,” citing In re C.H.C., 396 S.W.3d at 39]. 5 (footnote omitted, relaying procedural history in In re David F. Cary, No. 05-07-00265-CV, 2007 WL 740895 (Tex. App.–Dallas March 13, 2007, orig. proceeding [mand. denied] ) (mem. op.).)

4 Appellant filed a Writ of Mandamus, appealing Judge Sandoval’s denial of transfer, but his writ was denied; Appellant’s Writ of Mandamus to the Supreme Court following this Court’s denial was also rejected. 2 RR 131.] Jennifer answered the January 2007 motion to modify and sought an order that David pay her attorney’s fees and sanctions for filing frivolous pleadings. [2 RR 131-32.] Sandoval denied David’s motion to modify the December 1, 2006 order. [2 RR 132.] On June 25, 2007, Sandoval signed an order sanctioning David in the amount of $50,000. [2 RR 132-36.]

Sandoval was opposed by Suzanne Wooten (Wooten) in the 2008 Republican primary for judge of the 380th Judicial District Court. [2 RR 145-46.] There was no candidate in the 2008 Democrat primary for judge of the 380th Judicial District Court, so the winner of the Republican primary would be elected judge of that court in the 2008 general election. [Id.] Sandoval was defeated by Wooten in the 2008 Republican primary[.] [2 RR 141.] Wooten became the judge of the 380th Judicial District Court in January 2009. [Id.]

Robertson testified that in January 2009, David filed another motion to modify in the SAPCR. [2 RR 128, 141.] Robertson understood Jennifer retained attorney Kyle Basinger [and Alma Benavides] to represent her in David’s motion to modify[, but another attorney finalized the case. 2 RR 142.] . . .

[Robertson affirmed that Appellant’s motion to modify led to “the situation [being] reversed and [Appellant’s daughters] with special needs were put into the home of [Appellant] with his new wife Stacy Cary” in 2010. 2 RR 156, 158-61. On re- direct, Robertson also affirmed that the change in circumstances—as found by the Honorable Judge McCraw, nearly four years after Judge Sandoval signed the prior possession order—included Jennifer’s new marriage and move

5 to Fort Worth; that Appellant and his wife lived about ten miles from the twins’ school; and the daily commute for the twins between their primary residence in Fort Worth to their school in Dallas was “detrimental and potentially dangerous.” 2 RR 164-67.]

Israel Suster

Jennifer retained attorney Israel Suster to assist her in the collection of $416,543.16 in attorney fees and the $50,000 sanction Sandoval had previously ordered David to pay. [2 RR 176, 180.] Suster testified that to facilitate collection of these sums, he filed a Motion for Turnover Order in Sandoval’s court. [2 RR 174-78.] In the application, Jennifer sought to require the turnover to a previously appointed receiver of funds held by David’s legal counsel that allegedly constituted an unused retainer paid by David, and funds held by Tolleson Private Bank that allegedly were owned by or for the benefit of David and which he had the authority to withdraw. [2 RR 189-92.] In support of Jennifer’s Motion for Turnover Order, Suster filed his affidavit and supporting exhibits which, among other things, stated that documents produced by David’s legal counsel in response to a subpoena duces tecum indicate the counsel was in possession of [nearly $13,000.00] being held on behalf of David for the purpose of payment of future legal services, and that upon Suster’s information and belief, David was the owner and/or beneficiary of funds held at Tolleson Private Bank. [Id.] Attached as Exhibit 2 to Suster’s affidavit is a copy of a $30,000 cashier’s check issued by Tolleson Private Bank, representing payment by David to Jennifer of educational funds for their children that had been ordered by Sandoval. [2 RR 192-94.] Suster therefore assumed the educational fund payment originated from an account held by or on behalf of David at Tolleson Private Bank. [Id.]

6 Suster filed a motion to hold David in contempt for failure to pay the $50,000 sanction and for failure to provide information and documents as ordered by Sandoval on January 31, 2007. [2 RR 180-85, 189-90.] Shortly after Sandoval signed the requested turnover order, Stacy filed a petition in intervention and motion to dissolve the turnover order, and objections to subpoenas seeking information from third parties pursuant to the turnover order. [2 RR 193-95.] Stacy sought sanctions against Suster. [2 RR 194.] David filed a motion to set aside the turnover order and the orders imposing sanctions and awarding attorney’s fees. [2 RR 193-96.] At the January 3, 2008 hearing of David’s motions, Stacy testified she intervened in the lawsuit because Suster and Jennifer were trying to seize Stacy’s funds, claiming the funds were owned by David. [2 RR 202-03.] At the hearing, Stacy testified she purchased the cashier’s check from Tolleson Private Bank used by David to establish the educational fund ordered by Sandoval in order to keep David from being held in contempt for failure to make the payment. Id. Stacy also testified at the hearing regarding payments she made to attorneys who represented David. [2 RR 203-04.] Sandoval quashed the prior turnover order and denied Stacy’s motion for sanctions against Suster. [2 RR 197, 201.]

On January 3, 2008, Suster was served with a December 2007 lawsuit filed by Stacy against him in County Court at Law No. 4, Collin County, Texas. [2 RR 205-06; SX 67, 92, 173.] Stacy alleged Suster had committed fraud by filing a lien in the 380th Judicial District Court in conjunction with the application for a turnover order. [2 RR 205-09.] On May 28, 2008, [County Court] Judge Wheless signed an order transferring Stacy’s lawsuit against Suster from County Court at Law No. 4 to the 380th Judicial District Court to be consolidated with the SAPCR involving David and Jennifer over which Sandoval was presiding. [2 RR 212-13.] Stacy objected to Wheless transferring her lawsuit against Suster to the 380th Judicial District Court and filed a motion to

7 reconsider the transfer. After Stacy’s lawsuit against Suster was transferred to the 380th Judicial District Court, Stacy did not press for the discovery she had sought while the case was pending in the County Court at Law. [2 RR 213-19.] However, after Wooten became judge of the 380th Judicial District Court in January 2009, Stacy pursued her motions for additional discovery and depositions. [2 RR 217-19.] When Wooten allowed only a limited amount of the discovery Stacy requested, Stacy dismissed her lawsuit against Suster. [2 RR 226-27.]

Michael Puhl

Michael Puhl is a board certified family law attorney practicing in Collin County, Texas. [3 RR 137-38.] In 2006, the judge of the 366th Judicial District Court in Collin County was not seeking reelection, and Puhl ran as a candidate for election to that bench. [3 RR 139.] Puhl’s campaign expenses totaled [$15,000] to $25,000, and $5,000 to [$10,000] of that amount was funded from Puhl’s personal resources. [3 RR 139-40.] Puhl testified that his opponent spent over $100,000 on the campaign. [3 RR 140-41.] Puhl was not successful in that election. [2 RR 141.]

In the fall of 2007, Puhl received a telephone call from James Spencer. [3 RR 142.] Spencer told Puhl that he was interested in speaking to Puhl about the possibility of Puhl running for election against Sandoval as the sitting judge of the 380th Judicial District Court. [3 RR 143, 151.] [Puhl agreed to meet with Spencer. 3 RR 145.] . . . Either in the phone conversation or in the subsequent meeting, Spencer told Puhl that he was involved with the Texas Home School Coalition (THSC), and there were several people he knew who were dissatisfied with decisions rendered by Sandoval and were seeking an opponent for Sandoval in the 2008 Republican primary. [3 RR 144-45.] Spencer indicated to Puhl that he could provide financial support for Puhl’s campaign as well as

8 volunteer support for walking neighborhoods to distribute campaign materials. [Id.] With regard to financial support, Spencer’s representations to Puhl were very general in nature; Puhl’s impression was that Spencer could marshal supporters who would provide financial assistance to the campaign. [3 RR 145.] Puhl also testified that most attorneys are not inclined to contribute to a campaign against an incumbent judge, because [“it’s very difficult for people to publicly acknowledge support for someone who is not a sitting judge.”] [3 RR 146.] . . .

. . . Puhl declined to run as a candidate in the election[ and, to his recollection at trial, did not provide any other leads for Spencer to pursue as candidates. 3 RR 145, 147. Puhl testified with certainty that he did not recommend his law partner, Brian Loughmiller, due to Loughmiller’s strong support for Judge Sandoval. 3 RR 147. Puhl also admitted he was surprised that Wooten was “able to, as her first race, take on an incumbent and then prevail.” 3 RR 152.]

Daniel Dodd

Daniel Dodd, chair of the Democratic Party in Collin County in 2007, testified that in early November 2007, he learned Wooten wanted to run for election as a Collin County judge. [3 RR 128, 129-30.] At a meeting with Dodd, Wooten indicated she was considering running for judge of the 380th Judicial District Court against Sandoval, but Wooten had not decided whether to run as a Democrat or a Republican. [3 RR 130, 132.] Dodd informed Wooten that if she ran as a Democrat, he could not give her money for signs because of a lack of funds. [Id.] Dodd advised Wooten that if she had signs, the Democratic Party would make sure they were distributed. [Id.]

After Dodd met with Wooten, he received a telephone call from an individual in Austin, Texas. [3 RR 132-33.] Dodd could

9 not remember the name of the caller, but the man told Dodd that [“he was a lawyer, and he was a Republican, and they were interested in supporting Suzanne Wooten.” [3 RR 132.] Dodd remembered the caller saying “he could get a hundred thousand dollars through the lawyers down there in Austin. They didn’t like Sandoval either, and they wanted to get rid of him.” [3 RR 133.] . . . The man was requesting permission to contact Wooten. [Id.] [Dodd testified that the call was unusual because “[i]t was for a particular thing, and it was really Suzanne Wooten’s decision whether to go Republican or Democratic.” Id.] . . . Sometime after that, Dodd contacted Wooten and inquired whether she was going to run for election as a Democrat or a Republican. [3 RR 134.] Wooten informed Dodd she was going to run for election as a Republican. [Id.] [Dodd testified that an individual had better odds of being elected in Collin County running as a Republican. 3 RR 134.] ... [Dee Dee] Kedzie

Deanna [“Dee Dee”] Kedzie, a certified public accountant, testified that her practice focuses upon tax accounting and Stacy was her client. [5 RR 141-44.] Kedzie testified about a 2008 income and expense report dated March 16, 2009 that was prepared by Stacy. [5 RR 146-67; SX 171, 179.] According to Kedzie, the report indicates legal fees of $226,602.96 were incurred in 2008 relating to divorce and child custody issues. [5 RR 148-49.] Kedzie testified that Stacy wanted to deduct from 2008 taxable income a total of $226,773 for legal and professional fees. [5 RR 149-50.] Kedzie also testified about a March 31, 2008 email to her from Stacy, relating to Stacy’s 2007 tax return, in which Stacy wrote that her legal expenses were high “THANKS TO MY STEP CHILDREN’S LITIGIOUS/ABUSIVE/ NARCISSIsTC[sic]/GOLD DIGGING MOTHER” and inquired why legal fees “defending my home and family” could not be deducted from taxable income on her 2007 income tax return. [5 RR 152-54; SX 172.] Kedzie testified

10 that none of Stacy’s legal fees relating to divorce and child custody issues were actually deducted from taxable income on her income tax returns. [5 RR 150-51.]

. . . None of the backup documentation for calendar years 2007 and 2008 income and expense that Stacy provided to Kedzie for purposes of income tax return preparation contained any indication Stacy paid Spencer for consulting work during that period. [5 RR 155-58.] According to Kedzie, if Stacy was unsure about how to address the tax aspects of an expenditure or deduction, Stacy would typically contact Kedzie for advice; and if Stacy had needed any advice on how to address the tax aspects of a $150,000 consulting agreement, Stacy would most likely have contacted Kedzie because Kedzie prepared Stacy’s personal and business tax returns. [5 RR 158-60.] Stacy did not seek advice from Kedzie concerning the consulting agreement with Spencer[, and Kedzie likely “would have been told had [Stacy] discussed it with” Kedzie’s boss. 5 RR 160. Kedzie also affirmed that, although consulting fees for a 1031-real estate exchange transaction would most likely result in tax savings, Stacy did not report the $25,000.00 fee for Spencer’s services pertaining to a 1031-exchange, per their contract. 5 RR 177- 79.]

[Kedzie also testified that Stacy sent her paperwork for the 2008 tax year, in which Stacy noted a total sum of $556 that she was seeking as a deduction Cornwall Consulting, Family Focus Graphics. 5 RR 162-65. But upon researching Family Focus, Kedzie determined that no deductions could be taken. 5 RR 166-67.]

Kyle Basinger

Attorney Kyle Basinger testified that [he had known Wooten for approximately ten years before going into law practice with her—specifically,] Wooten previously had

11 operated a Collin County office for Basinger’s law firm. [3 RR 104, 59-60.] . . .

. . . [During their friendship and professional partnership, Wooten had conveyed to Basinger that she had aspirations to be a district judge. 3 RR 63. Just few months prior to the 2008 election, Wooten made “an offhand comment” about running for judicial office.” Id. Basinger advised Wooten that she “needed to run as a Republican” if she was going to run, because the Republican Party in Collin County was very strong. 3 RR 63- 64.]

. . . Basinger learned of Wooten’s decision to run for judicial office [less than a month] before the filing deadline in January 2008. [3 RR 65.] [Wooten announced her decision at their firm’s litigators’ meeting, “mention[ing] that the incumbent she was going to run against [was] well-financed and was well-[e]ntrenched.” 3 RR 66.] Basinger was concerned that it seemed a last minute decision by Wooten. [3 RR 66-67, 68.] . . . [After her announcement, Basinger and his law partners decided to shut down their Collin County branch which had been operated by Wooten, in the event she won the election. 3 RR 69-70.]

Benavides, an associate in Basinger’s law firm, served as Wooten’s campaign treasurer. [3 RR 69.] After her election, Wooten requested that members of Basinger’s law firm not appear in her court for a period of nine months in order to avoid the appearance of impropriety. [3 RR 74.] With respect to a Basinger firm case pending in Sandoval’s court at the time Wooten assumed office, Basinger testified that his office would contact Wooten’s court coordinator to advise her of the pending case, and the case would be ministerially transferred to another Collin County judge. [3 RR 73-76; see 3 RR 102-04, SX 66.]

12 Basinger represented Jennifer with regard to a motion to modify filed in the SAPCR involving David and Jennifer that was pending in Wooten’s court. [3 RR 76.] On February 27, 2009, at 9:59 a.m., Basinger’s law firm filed pleadings on behalf of Jennifer concerning the motion to modify. [3 RR 97-98.] Basinger received a telephone call from Spencer . . . on February 27, 2009[, “sometime between 9:59 a.m. and noon.” 3 RR 98.] Basinger was aware Spencer had served as Wooten’s campaign manager. [3 RR 99.] Basinger testified this was the only time he had received a telephone call from Spencer, and he was surprised Spencer was calling him . . . [Id.] . . . Spencer asked that Basinger consider withdrawing from the SAPCR involving David and Jennifer. Spencer’s position was that Basinger needed “to get [out of the Cary] case.” [3 RR 99.] . . . [Basinger asked Spencer why, and Spencer “started quoting that there was a pending trial or a pending investigation against Judge Sandoval, and I did not want to be involved in this case.” Id. But, because Basinger only knew Spencer casually, and Basinger had already contracted with Jennifer to represent her legal interests, Basinger “saw no reason to withdraw.” 3 RR 100. He pressed Spencer for more information than “some investigation of the former judge to get [him] off the case.” Id. But Spencer failed to provide any further details, and Basinger continued representing Jennifer. 3 RR 100-01.] . . .

On March 3, 2009, Basinger’s law firm filed a motion to recuse Wooten in connection with the pending motion to modify the SAPCR. [3 RR 78, 77-80.] Basinger’s and Benavides’s names were listed as counsel on that motion. [3 RR 77.] On March 4, 2009, Wooten granted the motion to recuse. [3 RR 84.]

Jennifer approached Basinger regarding his firm representing her in two additional civil litigation matters, one pending in Collin County and the other pending in Dallas County. [3 RR 82.] The civil litigation in Collin County was

13 related to the SAPCR between David and Jennifer; the case was filed by Stacy against Jennifer and Suster, who was attempting to collect attorney’s fees Sandoval had ordered David to pay Jennifer in the SAPCR. [3 RR 82-83.] . . .

Basinger and Benavides are listed as counsel on an April 23, 2009 pleading filed on behalf of Jennifer in the lawsuit filed by Stacy against Jennifer and Suster that was pending before Wooten. [3 RR 83-84.] . . . On May 8, 2009, Basinger filed a motion to recuse Wooten in Stacy’s lawsuit against Jennifer and Suster. [3 RR 85-87.] Basinger anticipated the motion to recuse would be granted because Wooten had recused herself previously with regard to the motion to modify filed in the SAPCR involving David and Jennifer, and there were overlapping facts in Stacy’s lawsuit against Jennifer and Suster. [3 RR 87-90.]

Unlike the prior motion to recuse, however, Wooten did not voluntarily recuse herself from Stacy’s lawsuit against Jennifer and Suster. [3 RR 90.] Judge G. Calhoun, Jr. was appointed to hear the motion to recuse Wooten in that matter. [3 RR 92.] On June 29, 2009, Basinger forwarded correspondence to Wooten withdrawing Jennifer’s motion to recuse. [3 RR 93.] Basinger testified that his law partner had [requested him to sign a letter addressed to both Wooten and Judge Calhoun, informing them that] the decision had been made to withdraw the motion to recuse Wooten. 3 RR 93-94.] . ..

14 Hank Clements

[George Henry “Hank”] Clements, an attorney and registered lobbyist in Texas, testified that his firm provides political and legislative consulting services, including lobbying. Clements also provides services to candidates for public office, including campaign management, direct mail advertisement, media strategies, and speech preparation. [6 RR 190-93, 200. At trial, Clements indicated he has worked on campaigns for “everything from local City council races, up through U.S. Congress and U.S. Senate.” 6 RR 192.] . . .

In the spring of 2007, Clements met Spencer in the office of a legislator. [6 RR 194-96.] Clements believes Spencer was there with regard to a family law issue. [6 RR 194.] Spencer told Clements he was interested in managing political campaigns, advocating for parental rights legislation, and [“that he had several judges around the state targeted that he wanted to see defeated and that he had a coalition that was out to defeat them.” 6 RR 196-97.] . . . It was Clements’s understanding from speaking with Spencer in the fall of 2007 that Spencer wanted to field a candidate in a judicial race. [6 RR 197.] Spencer specifically asked if Clements had ever managed a campaign in Collin County, and Clements advised Spencer that he had. [6 RR 196.] . . . . Spencer identified Wooten as a potential candidate who was considering entering the race. [6 RR 197.] Spencer wanted Clements to talk to Wooten regarding the magnitude of such a campaign. [6 RR 198-99.] Clements spoke on the telephone with Wooten toward the end of 2007, and he met with her on a Saturday in December 2007. [6 RR 199.] Clements gave Wooten an idea of the time commitment and cost required for an effective political campaign. [6 RR 199-200.] [He] also told Wooten it would require a substantial commitment on Wooten’s part to defeat an incumbent judge, and that the campaign would cost [“about”] $70,000 or more. [6 RR 200.]

15 By late December 2007 . . . , Clements knew Wooten was going to run against Sandoval in the Republican primary for judge of the 380th Judicial District Court. [6 RR 203.] . . . Although Spencer had never managed a political campaign, Clements testified Spencer wanted to run Wooten’s campaign and Wooten hired Spencer as her campaign manager. [6 RR 204.] Spencer hired Clements as a subcontractor to handle media, prepare a campaign plan, develop overall strategies, and design a direct mail plan. [Id.] Clements was to be paid [$25,000] for the scope of work[, the sum of which included a victory bonus to be paid] if Wooten won the race. [6 RR 204.] Clements received cashier’s checks for payment of his fees as follows: $7,500 on January 7, 2008, $7,500 on January 8, 2008, and $10,000 on March 7, 2008 after Wooten defeated Sandoval in the March 4, 2008 Republican primary. [SX 1.]

Clements did not send his bills directly to Wooten. [See 6 RR 204, 7 RR 24-25.] . . . According to Clements, management of a campaign is characterized as “turnkey” when the candidate pays a fee to a campaign manager or political consultant, and the manager or consultant is then responsible for paying vendors and service providers. [7 RR 24-25, 31.] Clements indicated that Spencer provided turnkey management of Wooten’s election campaign. [7 RR 24-25, 28-29.]

In [some of his previous] campaigns, Clements assisted the candidate in preparing campaign finance reports to be filed with the Ethics Commission. [7 RR 21.] He was not asked to review Wooten’s campaign finance reports. [Id., see 6 RR 249.] . . . Campaign finance reports filed with the Ethics Commission are public records, and the public can view the reports to see how candidates raised and spent their campaign funds. [See 6 RR 248.]

. . . [The State questioned Clements about an email from Spencer, addressed to both Clements and Wooten,] regarding

16 how much money Sandoval had raised in his campaign[.] [6 RR 248, SX 14.] . . . Sandoval’s Campaign Finance Report filed with the Ethics Commission on February 4, 2008 was [previously] admitted in evidence [through Spencer. 4 RR 95, SX 175.] That report reflected Sandoval had raised $12,575 in campaign contributions, had expended $8,997.08, and on February 4, 2008, his campaign account had a balance of $4,231.37. [Id.] Spencer sent an email to Wooten and Clements regarding Sandoval’s February 4, 2008 Campaign Finance Report. [6 RR 248.] In that email, Spencer said Sandoval had “raised some money,” but Spencer did not think Sandoval was “in a position to match our resources.” [Id.] Clements did not know what Spencer meant by his reference to “resources” in that email. [Id.] Spencer did not tell Clements that there were contributors Spencer could go to for money, but that was Clements’s interpretation of the email. [6 RR 248.] . . . . Clements testified he had no role in raising money for Wooten’s campaign or in managing the finances of the campaign. [Id.]

Records regarding paid political advertisements for the Wooten campaign on local radio stations were admitted in evidence. For example, a $6,000 cashier’s check from Spencer for payment for radio advertisements airing on a radio station from February 25 through February 28, and on March 3, 2008, was admitted in evidence. [SX 25, 6 RR 215.] The invoice for the radio advertisements was dated March 10, 2008. [6 RR 214- 15.] A $4,000 cashier’s check from Spencer for payment for radio advertisements airing on another radio station from February 25 through February 28, and on March 3, 2008 was also admitted in evidence. [SX 24, 6 RR 215-16.] The contract confirmation for that radio advertising was dated February 22, 2008, and the invoice for that radio advertising was dated March 10, 2008. [6 RR 208-10, 214-15.] . . . Documents on which Wooten gave approval for campaign expenditures and edited or approved campaign advertisements and media materials were admitted in evidence. [6 RR 205-49.]

17 ... Ian Steusloff

Ian Steusloff, an assistant general counsel for the Ethics Commission, testified that the Ethics Commission is an agency that, among other things, administers laws relating to campaign finance, ethics disclosure, and regulation of lobbyists. [6 RR 26-28.] It also serves as an enforcement agency. [6 RR 28- 29.]

Steusloff testified regarding filings with the Ethics Commission that candidates and officeholders are required to make. [6 RR 28-29.] Candidates for election to a judicial office are required to file campaign finance reports. [6 RR 38-40.] Those reports show campaign contributions, campaign expenditures made from a campaign account, campaign expenditures made from personal funds, and loans to a campaign. [6 RR 38-40, 43.] Typically candidates must file campaign finance reports on January 15th and July 15th. [6 RR 38-39.] If opposed in an election, candidates must also file campaign finance reports thirty days and eight days before the election.6 [6 RR 39.] Candidates are required to swear the information provided in a campaign finance report is true and correct. [6 RR 36, 42.] The campaign finance reports filed by a judicial candidate are public records, and the Ethics Commission posts those reports on its internet website. [6 RR 42, 51.]

Steusloff testified that contributions to a judicial campaign must be individually itemized on the campaign finance report if the contribution, whether money or in-kind .

6 Steusloff testified that if a candidate files a statement that she is not going to accept or spend more than five hundred dollars on an election, she is not required to file a pre-election campaign finance report thirty days and eight days before the election. [6 RR 39.]

18 . . .[6 RR 28-29.] A candidate must also disclose on the campaign finance report outstanding loans to a judicial campaign. [6 RR 40, 43.] . . . For disclosure purposes, an expenditure is deemed made when the amount of the expenditure is readily determinable. [6 RR 44.] Steusloff testified that, in 2008, when an individual or entity made an expenditure of more than $100 that benefitted, but was independent from, a campaign, such as paying for advertising that benefitted a candidate, the individual or entity was required to file a report with the Ethics Commission disclosing the expenditure and send a report of the expenditure to the candidate. [6 RR 40.] . . .

[Steusloff acknowledged that, if a candidate hired an independent consultant and delegated authority to the consultant to make decisions concerning campaign expenditures without the candidate’s approval, it could be lawful for the candidate to report those expenses on the date an invoice is submitted to them by their consultant – in some circumstances. 6 RR 67-75, 80-83. However, Steusloff testified that the only lawful date of reporting is the date the expenditure is “readily determinable,” which may or may not coincide with the date of invoice submitted to the candidate from the consultant. 6 RR 44-46, 66-70. Steusloff also denied that the Ethics Commission has issued a blanket approval for lawful reporting dates for expenditures, based upon agreements between a candidate and their consultant—rather, each determination is fact-specific. 6 RR 84.]

Steusloff testified that in judicial races, there are limits on campaign contributions. [6 RR 35-36.] The limit depends on the population of the judicial district. If the population in the judicial district is between 250,000 and one million, as in Collin County in 2008, the contribution limit is $2,500. [6 RR 37.] . . . When a candidate pays campaign expenditures from personal funds, there is a limit on reimbursement of those expenditures

19 from campaign contributions; the limit is five times the maximum permissible campaign contribution. [6 RR 48.] Therefore, where the campaign contribution limit for a judicial race is $2,500, the total amount of reimbursement from campaign contributions of a candidate’s out-of-pocket campaign expenditures is $12,500. [Id.]

Wooten’s Campaign Finance Report for the period January 25, 2008 through February 23, 2008 indicated she had received a total of $10,425 in campaign contributions, with total political expenditures of $11,734.41. [SX 62; 6 RR 62-63.] Wooten’s Campaign Finance Report for the period February 24, 2008 through June 30, 2008 indicates she received [$60,115.19] in campaign contributions and expended $65,515.91. [SX 62, 6 RR 78-79.] Wooten’s January 11, 2009 Campaign Finance Report filed for the period July 1, 2008 to December 31, 2008 indicates she received campaign contributions of $5,150 and expended $42,419.91. [SX 62, 6 RR 93.]

Wooten’s January 11, 2009 Campaign Finance Report indicates payments to Spencer in the amounts of $1,500 and $7,550 for “[t]urnkey mgmt svcs fees and costs—per invoice[s].” [SX 62.] Earlier campaign finance reports and amended campaign finance reports filed by Wooten in 2009 disclose the following payments to Spencer: an August 28, 2008 payment in the amount of $33,369, 91 for “turnkey mgmt svcs fees and costs—per invoice”; a February 13, 2008 payment in the amount of $4,002.32 for signs and fees; a February 22, 2008 payment in the amount of $4,527.50 for campaign material and fees; a March 7, 2008 payment in the amount of $2,400 for a direct mailer; a May 29, 2008 payment in the amount of $5,000 for “turnkey management svcs fee and costs—per invoice[s]”; June 24, 2008 payments of $5,241.50 and $2,700 for “turnkey mgmt svcs fees and costs—per invoice”; a June 30, 2008 payment in the amount of $7,550 for “turnkey management services fees and costs—per invoice”; and a June 30, 2008

20 payment of $1,500 for “turnkey management services fees and costs—per invoice.” [Id.] The campaign finance reports also include campaign expenditures for “CBS radio buy—per invoice” on March 31, 2008 in the amount of $10,000, “WBAP radio buy fee” on April 17, 2008 in the amount of $12,000, and “radio buy and direct mail—per invoice” on April 28, 2008 in the amount of $14,000. [Id.] A campaign finance report reflects a “personal loan” from Wooten to the campaign on August 28, 2008 in the amount of $33,369.91, matching the August 28, 2008 payment of $33,369.91 to Spencer for “turnkey mgmt svcs fees and costs—per invoice.” [Id.]

Kyle Swihart

Kyle Swihart, a certified fraud examiner and a forensic auditor employed by the office of the Texas Attorney General, testified that he investigates allegations and complaints of white-collar crime relating to public integrity and money laundering. [7 RR 78-82.] His investigation of [David] included review of bank records; phone records; campaign finance reports; credit card statements and documents establishing a credit card account; invoices; payments made by Wooten to Spencer; and records of emails and other forms of communication. [7 RR 82-96.]

A chart created by Swihart containing a summary of the evidence he relied upon was admitted in evidence. [7 RR 96, SX 94.] That chart contained a summary of bank records, invoices for services or products provided to Wooten’s campaign, transfers of money from Stacy to Spencer, the dates when products or services benefitting the Wooten campaign were purchased or rendered, and the dates Spencer invoiced Wooten’s campaign. [Id.] The summary of the evidence spans the period of January 1, 2008, the day before Wooten filed her candidacy for judge of the 380th Judicial District Court, and August 29, 2008, when Wooten wrote a check in the amount of

21 $33,369.91 from her line of credit to Spencer. [7 RR 96-98.] The records Swihart reviewed establish Spencer made six deposits to his bank account of funds transferred to him by Stacy in the form of wire transfer or check. [Id.]

On January 3, 2008, Spencer had $2.39 in his bank account and Wooten had $25 in her campaign account. [SX 94.] On January 4, 2008, $50,000 was deposited in Spencer’s bank account from Stacy’s first transfer of money to him. [Id.] Without the money transferred by Stacy to Spencer on January 4, 2008, Spencer did not have funds in his bank account, and Wooten did not have funds in her campaign account, for Spencer to make payment by cashier’s check to Clements on January 7, 2008 in the amount of $7,500 and on January 8, 2008 in the amount of $7,500. [7 RR 102-03.] On January 23, 2008, Spencer had a balance of $7,656.31 in his bank account remaining from the January 4, 2008 transfer of money from Stacy, $16,856.37 having been spent by Spencer on Wooten’s campaign.[SX 94.]

On February 4, 2008, a payment from Stacy to Spencer in the amount of $25,000 was posted to Spencer’s bank account. [7 RR 104, SX 94.] Before this deposit, Spencer had an account balance of $5,545.51, and Wooten had a balance of less than $3,000 in her campaign account.[Id.] After that deposit, the balance in Spencer’s bank account was $25,692.30. [Id.] The records show that on February 5, 2008, Spencer began using the $25,000 for Wooten’s campaign, including an expenditure of $2,345 for an advertisement in the Plano Profile magazine, and payments of $4,036.75 and $3,877.32 to Cartwright Signs. [7 RR 105.] Without Stacy’s February 4, 2008 payment of $25,000 to Spencer, these campaign expenses could not have been paid from either Spencer’s bank account or Wooten’s campaign account.[7 RR 104-05.]

22 On February 13, 2008, Spencer had $1,180.97 in his bank account and Wooten had $5,885.06 in her campaign account. [SX 94.] On February 15, 2008, another $25,000 check from Stacy was posted to Spencer’s bank account. [7 RR 108.] After deposit of that check, Spencer’s bank balance was $25,000.92. [SX 94.] Spencer used the money in his account after that deposit to purchase cashier’s checks on February 20, 2008 totaling $10,000 to pay invoices for radio advertisements.[7 RR 108.] Absent the $25,000 from Stacy, neither Spencer’s bank account nor Wooten’s campaign account had sufficient funds for payment of the radio stations’ advertising invoices.[7 RR 108- 09.]

On February 26, 2008, a $25,000 wire transfer from Stacy posted to Spencer’s bank account. [7 RR 110.] Prior to that deposit, Spencer had $5,565.18 in his bank account and Wooten had $5,166.58 in her campaign account. [SX 94.] The day Stacy’s wire transfer was made, Spencer made additional radio advertisement purchases in the amount of $14,454.25, as well as payments to the THSC Political Action Committee for a mailer and to an assistant. [7 RR 111, 113-14.] Without the $25,000 payment from Stacy, Spencer did not have sufficient funds in his bank account, and Wooten did not have sufficient funds in her campaign account, to pay those campaign expenses. [7 RR 112, 114.]

On March 7, 2008, after the March 4, 2008 Republican primary, Stacy wire-transferred a fifth payment to Spencer in the amount of $10,000. [7 RR 118.] At the time of that transfer, Spencer had $11,707 in his bank account, and Wooten had $2,710.08 in her campaign account. [SX 94.] Approximately one hour after the $10,000 wire transfer, Spencer purchased a cashier’s check in the amount of $10,000 made payable to Clements. [7 RR 118.] A sixth payment by wire transfer in the amount of $15,000 was made by Stacy to Spencer on March 13,

23 2008. [SX 94.] On March 14, 2008, that payment was posted to Spencer’s bank account. [Id.]

Swihart reviewed phone and email records of Stacy, David, Clements, Spencer, and Wooten. Swihart testified regarding the dates and times of communications among those individuals and others. [7 RR 160-62.] The first communication Swihart was able to document between Spencer and David and Stacy was September 21, 2007. [7 RR 164.] Swihart was able to document a telephone call from Wooten to Spencer on December 20, 2007. [7 RR 164.] Swihart testified regarding communications occurring around the dates of payments from Stacy to Spencer. [7 RR 164-213.] Swihart also testified regarding communications occurring around the dates of events in matters before the 380th Judicial District Court after Wooten became judge of that court.

At 3:40 p.m. on January 2, 2008, Wooten filed as a candidate for the 380th Judicial District Court. [7 RR 176.] Moments before that filing, Wooten spoke to Spencer by telephone. [Id.] After Wooten filed as a candidate, Spencer communicated with David.[Id.] Between 6:49 p.m. and 9:45 p.m. that night, Spencer communicated with David on David’s cell phone, with Wooten on her cell phone, and with David, Stacy, or both, on the telephone at the Cary home. [SX 98C.]

At 10:17 a.m. on January 3, 2008, Paladini Financial requested a third-party wire transfer from one of Stacy’s accounts to Spencer in the amount of $50,000.7 [7 RR 178.]

7 Wendy Kelly, an investment analyst at the financial planning firm of Paladini Financial, testified that Stacy was a customer of Paladini Financial. [4 RR 4-5.] On the morning of January 3, 2008, Stacy requested that Kelly wire $50,000 from one of her accounts to Security State Bank, Fredericksburg, Texas, for the benefit of Spencer. [4 RR 6-7.] The wire transfer did not successfully transmit. [4 RR 8-9.] Kelly contacted Stacy and advised her that the wire transfer had failed and that there was additional paperwork Stacy needed to

24 There were two attempts by Spencer to reach David and Stacy’s home phone during that day, and David spoke to Spencer from 1:13 p.m. to 1:23 p.m. [SX 98C.] At 4:49 p.m., Stacy was sent new wiring instructions because the earlier wire transfer could not be completed. On January 4, 2008, the date of the first wire transfer to Spencer from Stacy, Spencer had three telephone communications with someone on David and Stacy’s home phone.[7 RR 179-80.] Swihart assumed those conversations were with Stacy as they occurred during the work day; David worked outside the home and Stacy had an office in her home from which she worked. [7 RR 180.] After the wire transfer of $50,000 was posted to Spencer’s account at 4:34 p.m., Spencer telephoned Wooten’s office. [Id.] Thereafter, there was a brief telephone call to Spencer from David.

On January 29, 2008, the night before the second payment by Stacy to Spencer, Spencer telephoned David’s cell phone. [7 RR 184-85.] Immediately thereafter, either David or Stacy telephoned Spencer from David and Stacy’s home phone. [7 RR 185.] Spencer then telephoned Wooten. [Id.] After the telephone call to Wooten, Spencer telephoned David and Stacy’s home. [Id.] Stacy made a second payment to Spencer on January 30, 2008, and Spencer deposited that payment on February 1, 2008. [Id., SX 94, 98C.] That payment posted to Spencer’s bank account on February 4, 2008. [Id.] On February 5, 2008, Spencer sent an email to Wooten that Sandoval “cannot match our resources,” even though Wooten had raised only $3,620 from campaign contributions at that time.

On February 14, 2008, Stacy made her third payment to Spencer. [7 RR 186.] On that day, Spencer exchanged text messages by phone with David between 5:12 p.m. and 5:23 p.m. [7 RR 187, SX 98C.] Between 5:34 p.m. and 5:46 p.m., Spencer

complete before a third-party wire transfer could be accomplished. [4 RR 10-11.] Stacy then transferred money from one of her accounts to an account at Tolleson Private Bank, which was able to wire transfer $50,000 to Spencer. [4 RR 11-12.]

25 then communicated in succession with Wooten, Clements, and David. [7 RR 188.] Stacy’s third payment to Spencer posted to his account on February 15, 2008. [Id.]

On February 26, 2008, Stacy made her fourth payment to Spencer. [7 RR 188-89.] At 4:41 a.m., Spencer’s assistant confirmed to Spencer by email that radio advertising time had been purchased for Wooten’s campaign. [SX 98C.] At 5:24 a.m. and 6:59 a.m., David received text messages from Spencer. [Id., 7 RR 189.] At 9:17 a.m., Stacy sent instructions to Tolleson Private Bank to wire $25,000 to Spencer. [Id.] At 2:14 p.m., the wire transfer was posted to Spencer’s account. [Id. At 2:37 p.m. and 2:53 p.m., Spencer’s wife, Kipling Spencer, purchased cashier’s checks for payment of Wooten campaign expenses from the funds wired to Spencer’s account by Stacy. [Id., 7 RR 191.] ... On March 4, 2008, Wooten won the Republican primary. On March 7, 2008, Stacy made the fifth payment to Spencer. [7 RR 192-93.] On March 7, 2008, between 7:07 a.m. and 8:29 a.m., Spencer text-messaged four times with David. [7 RR 193- 94, SX 98C.] Clements text-messaged Spencer at 8:17 a.m. [Id.] David and Stacy had three phone conversations between 8:45 a.m. and 9:10 a.m. Between 9:23 a.m. and 10:02 a.m., Spencer and David exchanged thirteen text messages. [Id.] At 10:47 a.m., Stacy attempted to reach David by telephone. [Id.] At 10:58 a.m., Stacy sent instructions to Tolleson Private Bank to wire $10,000 to Spencer. [Id.] At 11:40 a.m., David text- messaged Spencer. At 2:51 p.m., the wire transfer of $10,000 posted to Spencer’s bank account. [Id.] Between 3:21 p.m. and 3:52 p.m., Spencer and David exchanged eleven text messages. [Id.] At 3:59 p.m., Kipling Spencer purchased a cashier’s check made payable to Clements in the amount of $10,000. [7 RR 194.]

26 Between 6:24 p.m. and 6:31 p.m. on March 13, 2008, the day of the sixth payment from Stacy to Spencer, Spencer text messaged David six times. [7 RR 195, SX 98C.] At 9:41 p.m., Stacy sent instructions by email to Tolleson Private Bank to wire Spencer $15,000. [Id.] On March 14, 2008, the sixth payment from Stacy to Spencer in the amount of $15,000 was posted to Spencer’s bank account. [Id.]

On January 2, 2009, Wooten was sworn in as judge of the 380th Judicial District Court. At 9:59 a.m. on February 27, 2009, Benavides’s pleading regarding her appearance on behalf of Jennifer in the SAPCR case pending in Wooten’s court was file-stamped. [7 RR 196.] At 11:03 a.m., there was a one-minute phone call between Spencer and David’s cell phone. At 11:04 a.m., there was a two-minute telephone call from Spencer to Benavides’s cell phone. At 11:06 a.m., Spencer attempted to call David. [7 RR 197.] Between 11:08 a.m. and 11:13 a.m., there was a telephone call from David to Spencer. [Id.] Between 11:14 a.m. and 11:17 a.m., there was a telephone call from Spencer to Benavides. [Id.] From 11:18 a.m. to 11:21 a.m., there was a telephone call from Spencer to David. [Id.]

Swihart testified regarding events of March 2, 2009. [7 RR 198-200.] On that date, Wooten was still presiding over the SAPCR involving David and Jennifer. Wooten and Spencer were communicating by text message. In the midst of their text messages, Spencer telephoned Judge Oldner’s office. . . . On March 2, 2009, Spencer and David exchanged thirty-one text messages. [SX 98C.] On March 3, 2009, there were eight text messages between Spencer and David. [Id.] On March 4, 2009, Wooten recused herself from the SAPCR involving David and Jennifer. [SX 7A.] There was one phone call between Spencer and David that day.

Swihart testified regarding Wooten’s campaign expenditures and Spencer’s invoices to the Wooten campaign

27 for the period January 7, 2008 through August 29, 2008. [7 RR 144-53, SX 97.] Swihart compiled a summary of those expenses and invoices from forty-two exhibits and testimony from a previous hearing.8 Swihart testified that pre-election expenditures on behalf of the Wooten campaign for the period January 1, 2008 through the Republican primary on March 4, 2008 totaled $81,215.26. The total amount of contributions deposited in Wooten’s campaign account for that period was $12,370. Swihart testified that Spencer spent about $118,000 on Wooten’s campaign, and Wooten actually paid back only about $102,000 of that amount. [7 RR 156.]

Swihart testified David had a motive to bribe Wooten. Swihart explained there was a connection between the money Stacy paid to Spencer and the money Spencer spent on behalf of the Wooten campaign, and there was a connection among Stacy, David, Spencer, and Wooten. [8 RR 139-45, 68-73.] . . .

2014 WL 4261233, *3-24.

James Stephen Spencer 9

Spencer testified that he was charged with “essentially the same

indictment as Mr. David Cary.” 3 RR 161. He confirmed that he was being

compelled to testify under a grant of testimonial immunity. Id.

Spencer had an employment background in health care

administration, but for the past fifteen years has done independent

consulting work in areas ranging from marketing to finance, with some

8 (Footnote omitted.) 9 Although the State-Appellee has re-formatted and edited the summary of Spencer’s testimony from this Court’s Stacy opinion, the content primarily quotes Stacy, 2010 WL 4261233, *6-14.

28 work involving political, regulatory, and legislative matters. 3 RR 164-65,

196-97. Spencer had some limited experience in the area of oil and gas,

principally involving oil field services and removal of salt water from oil

wells. 3 RR 238. He has no college degrees. 3 RR 196. He lives in Dripping

Springs, Texas, which is approximately thirty-five minutes from the

Capitol in Austin. 3 RR 171.

Beginning in “the latter part of the 90's,” Spencer became engaged in

a contentious legal fight with his wife’s parents over rights of possession

with his child and stepchild. 3 RR 168. Spencer “went to the legislature”

beginning in 2005 to try to amend laws regarding parental rights that he

believes are unconstitutional. 3 RR 169-71. Spencer is not a registered

lobbyist in Texas; his legislative advocacy was in advancement of his

personal interests. 3 RR 171-72. According to Spencer, he had a

conversation in 2007 with Tim Lambert of the THSC, and—having had

“some bills that we had worked on pass”—they discussed that their

legislative success was “pointless” without judges who would follow the

law. [3 RR 176, 180-81. They also discussed the “necessity to replace

judges” with “judges who would actually follow the law the legislature

passed.” 3 RR 225.

Royce Poinsett, general counsel for the Speaker of the Texas House

of Representatives from 2004 to 2008, put Spencer in touch with David and

29 Stacy in September 2007.10 3 RR 21, 181. On September 19, 2007, Spencer

emailed David and Stacy. 3 RR 186-87. The first time Spencer met David

and Stacy was at their home in Dallas, Texas on October 2, 2007. 3 RR

187-88. That meeting lasted approximately two or three hours. 3 RR 198.

A. Spencer’s consulting work with Stacy and TDI

In the October meeting with the Carys, Spencer learned that Stacy

had an interest in a family-owned oil and gas company and also had some

independent investments in the oil and gas industry. 3 RR 238-39. There

was to be some liquidation of an investment Stacy or her family had, and

Stacy planned to take those proceeds and invest it into real estate

properties. 4 RR 168. Spencer offered his assistance, and generally

discussed his interest in providing her consulting services in the following

areas:

1. Assessment of possible investment in new pumping technology;

2. Analysis of the U.S. electric marketplace, and potential investment in SmartGrid-related ventures;

10 Poinsett testified that in 2007, he met with Spencer, who was interested in issues related to family law and, specifically, issues related to grandparents’ access to children. 3 RR 11-12. Also in 2007, Poinsett met with David and Stacy, and they spoke with him about “fathers’ rights,” meaning “who would have the most rights to a child in the event of divorce or what factors would be considered as to whether the father got more custody or the mother.” 3 RR 17-18.

30 3. Assistance in assessing and securing counsel in anticipation of and for contemplated litigation; and

4. Assessment and proposal for family-centered advocacy, with an emphasis on parental rights.

3 RR 195-96, 237-41; SX 130. According to Spencer, this discussion

culminated in an Acknowledgment of Engagement letter dated October 1,

2007 (the consulting agreement) between Spencer and Stacy, which was

admitted in evidence. Id. Stacy agreed to pay Spencer $250,000 based on

the “overall project,” and $150 per hour pursuant to a fee schedule. SX 130.

The term of the agreement was October 1, 2007 to December 31, 2009. 3

RR 237-38. Spencer testified the consulting agreement was drafted

sometime in the first half of October 2007 and back-dated to October 1,

2007. 3 RR 230, 237-38. He testified he hand-delivered the consulting

agreement to Stacy in October or early November 2007. 3 RR 232.

Spencer also testified that he began doing work with TDI in the

middle of 2008, which he then would have known was David’s employer.

4 RR 116. The first time Spencer was paid by TDI was in July or August

2008. Id. Also admitted in evidence was Spencer’s October 15, 2009

“Engagement Letter for Outsourced Marketing Services” relating to

consulting services to be provided by Spencer to TDI, David’s employer. 4

RR 115-22.

31 Spencer testified regarding certain aspects of those two documents,

including:

• The consulting agreement was not signed by Stacy and was dated prior to the date Spencer testified he first met Stacy on October 2, 2007. 3 RR 240.

• The TDI Engagement Letter for Outsourced Marketing Services was signed by William Johnson, Chief Executive Officer of TDI, on October 14, 2009, however the date of Johnson’s signature was the day before the date of the engagement letter. 4 RR 119.

• Spencer’s consulting agreement with Stacy and the TDI engagement letter each indicate the term of the agreement ended on December 31, 2009. 3 RR 238, 4 RR 120-21.

• Spencer did not perform any work for Stacy after August 1, 2008 that had not been “prepaid,” despite his invoice indicating one project was completed, one project suspended, and the two remaining projects were “pending.” 4 RR 17-21, 122; SX 137.

• Stacy’s consulting agreement (dated October 1, 2007) and the TDI Engagement Letter for Outsourced Marketing Services (dated October 15, 2009) both contain an identical phrase relating only to TDI: “[a]ny additional time spent on TDI’s behalf is part and parcel to, and inclusive of this engagement.”4 RR 120-211, 5 RR 94-95.

Spencer initially testified that in October 2007, he did not know the

TDI company name, but he later changed his testimony and indicated that

David gave him a business card at their October 2, 2007 meeting. 5 RR 95-

96.

32 Spencer also admitted that, in addition to the mistakes he made in

Stacy’s consulting agreement, he also made mistakes in the paperwork

supporting invoices to Stacy. 3 RR 241-52. For example, Spencer testified

that, according to the schedule of payments due under the consulting

agreement with Stacy, she was to pay him $25,000 “per project,” totaling

$100,000 in sum, according to the schedule. 3 RR 243. But an August 1,

2008 “summary” invoice from Spencer to Stacy shows that credits were

applied to the “balance” of $100,000 for the following transfers of money to

Spencer: $25,000 on February 5, 2008; $25,000 on February 14, 2008;

$15,000 on March 4, 2008; and $10,000 on March 7, 2008. 3 RR 246.

Spencer did not include the $25,000 transfer on February 26, 2008,

however that transfer is handwritten on Stacy’s copy of the “summary”

invoice. The “summary” invoice did not include the January 4, 2008 wire

transfer of $50,000 from Stacy. 3 RR 248, 5 RR 115-16.

One of the “projects” for which Spencer testified he was paid $25,000

or more by Stacy involved possible equity investment by Stacy in Down

Hole Injections (DHI). 3 RR 248-50; 5 RR 12. Spencer provided information

to Stacy concerning DHI which included eighteen pages of DHI financial

statements contained in a private offering memorandum given to Spencer

in mid–2007 by an individual living in Dripping Springs, Texas. 5 RR 12-

16. By letter dated April 7, 2008, Spencer advised Stacy he did not believe

DHI was a good investment for her. Id.

33 Another “project” for which Spencer testified he was paid $25,000 by

Stacy involved analysis of the rural electricity marketplace.3 RR 264-65;

5 RR 16-17. By letter dated July 10, 2008, Spencer sent Stacy a summary

analysis of the “U.S. Electric Co–Op Market and Potential Venture to

Acquire Broadband Service Delivery Rights.” Id.; 3 RR 264-66; 4 RR 20.

Spencer acknowledged that the contents of that letter were taken in large

part from an article published in the Harvard Journal of Legislation. 3 RR

266-68; 4 RR 20-22. Spencer testified he also provided information to Stacy

in July 2008 concerning new pumping technology, the U.S. electric

marketplace, and ventures related to Smart–Grid technology, based upon

materials he had previously received. 4 RR 20-22, 5 RR 16-17.

With regard to the “project” concerning parental rights for which

Stacy was to pay Spencer $25,000, a power point presentation was

introduced in evidence that described creation of a for-profit internet

service provider that could “sustain advocacy of parental rights,” and,

according to the presentation, would gross $46,000,000 in revenue during

a one year period, although Spencer testified he did not have experience

creating an email and internet service provider. 3 RR 253-65.

B. Spencer’s campaign work with Wooten

In the October 2007 meeting with the Carys, David and Stacy shared

with Spencer their experience in meeting with legislators and advocating

for change in laws relating to parental rights. 3 RR 188. Spencer testified

34 that the “greatest substance” of their conversation was about the issue of

parental rights, and Spencer wanted to do research on David and Stacy’s

legislative agenda, which involved shared-custody concepts. 3 RR 189. At

the meeting, David and Stacy told Spencer they had been through a

significant, lengthy, and expensive family law battle that was continuing.

3 RR 189-95.

Following his meeting with the Carys, Spencer reviewed David’s

divorce and SAPCR case file in the 380th Judicial District Court in October

or November 2007. 3 RR 193-95, 198-99. One of Sandoval’s rulings that

Spencer found”funky” was a ruling in which Sandoval sanctioned David

and his attorney, and ordered more than $400,000 in attorney’s fees be

paid to David’s ex-wife, Jennifer. 3 RR 199-201.

Spencer testified that in late November 2007, he decided he wanted

to find a candidate to unseat Sandoval as judge of the 380th Judicial

District Court, and he acknowledged that David’s divorce and SAPCR were

factors in that decision. 3 RR 204. Spencer testified that he had also

reviewed one other family law case, but primarily focused on searching the

success rates of particular attorneys appearing before Sandoval; asking

several people about Sandoval, including “some interested family rights

and parental rights folks;” and an article on Sandoval’s orders related to

enrollment in a drug program. 3 RR 201-07. Spencer learned that in the

35 history of Collin County, there had never been a challenger to a sitting

district judge. 3 RR 208.

With regard to identifying potential candidates to run against

Sandoval, Spencer believed he telephoned several people for

recommendations. Spencer testified that he contacted attorney Puhl

regarding running against Sandoval. 3 RR 204-10. Spencer told Puhl he

could provide operational support, grassroots support, and organizational

support. 3 RR 207-08. Spencer told Puhl that he would help him raise

money for the race if he committed to run. Id. Spencer told Puhl he thought

it would require between $100,000 and $150,000 to run a “successful, to

even run a notable challenge.” 3 RR 208. Spencer acknowledged that very

few lawyers would want to contribute to a campaign in opposition to

Sandoval. 3 RR 215. Spencer knew that anyone running against Sandoval

would not raise much money from attorneys before election day and that

most contributions to judicial campaigns are made by lawyers. Id. Puhl

declined to run against Sandoval. 3 RR 209.

Spencer called Puhl’s former law partner, Brian Loughmiller, about

running against Sandoval, but Loughmiller declined to run against

Sandoval. 3 RR 210-12. Loughmiller told Spencer he did not think

Sandoval was going to be defeated in the next election cycle. 3 RR 211.

Spencer testified that Wooten’s name, as a potential candidate to run

against Sandoval, came up “in a conversation.” 3 RR 216. In October or

36 November of 2007, Spencer contacted Dodd. 3 RR 212-16. Spencer told

Dodd he was looking for a candidate to run in the Republican primary

against Sandoval, and he had heard the Democratic Party was recruiting

Wooten to run for office. 3 RR 212-13. Spencer learned Wooten was

interested in running but had declined to run as a Democrat. 3 RR 218.

Spencer testified he telephoned Wooten in mid-December 2007, in

advance of the January 2, 2008 deadline to file as a candidate for the

March 4, 2008 Republican primary. 3 RR 217-18. Spencer told Wooten the

campaign would cost $100,000 to $150,000, and Wooten thought that was

a reasonable estimate. 4 RR 23-24. Spencer told Wooten he would do

everything he could to be supportive of her campaign. 4 RR 24.

In 2005 or 2007, Spencer met Hank Clements, a registered lobbyist,

who also had political campaign experience. 3 RR 181. Clements was very

knowledgeable about political advertising, including purchasing radio

broadcasting time and preparation of mail, flier, and sign advertising. Id.,

4 RR 26. Clements’s original quote to Spencer for working on a district

court judicial campaign was $50,000, but Spencer negotiated his fee to

$15,000 up front (paid in two payments of $7,500), and a $10,000 victory

bonus. 4 RR 41. Wooten eventually spoke to Clements in the latter half of

December 2007. 4 RR 23-25. Ultimately, Clements worked on the Wooten

campaign and was paid $25,000 for his services.

37 C. The flow of monies

Between January 1, 2008 and March 15, 2008, Stacy paid Spencer

$150,000 in the form of checks and wire transfers. 3 RR 247-48; 4 RR 41-

43, 65. Spencer testified this compensation related to his consulting

agreement with Stacy, although he had not yet submitted or completed any

projects at that point. 3 RR 246-47.

At the time he was recruiting Wooten as a candidate for the 380th

Judicial District Court, and when Wooten agreed to run for election,

Spencer was receiving money from Stacy. 4 RR 173-87. He admitted that,

without the $150,000 from Stacy, he probably would not have been able to

pay for all of Wooten’s campaign expenses but–in his mind–he was

spending “his” money on Wooten’s campaign. 4 RR 41-44, 174. Spencer

testified he believed Wooten would pay him back and she did. 4 RR 88-89.

Spencer denied that David and Stacy were the “resources” he alluded to

within an email regarding Wooten’s available resources in comparison to

Sandoval’s, and Spencer also denied Wooten relied on the Carys’ money to

finance her campaign by suggesting Wooten could have financed some of

her campaign expenses with the line of credit she had taken. 4 RR 128-29.

However, Spencer admitted that she did not use her line of credit during

the campaign. 4 RR 129.

On the evening of March 4, 2008, the day Wooten won the Republican

primary, or on March 5, Clements called Spencer for his $10,000 victory

38 bonus. 4 RR 63-64. On March 7, 2008, the fifth transfer of money from

Stacy to Spencer occurred in the amount of $10,000. 4 RR 65. On March 6,

2008, Spencer’s bank balance was $2,407.69. 4 RR 64. After the transfer

of $10,000, Spencer’s bank balance was $11,707. 4 RR 65. Within an hour

of Stacy’s March 7, 2008 wire transfer of $10,000 to Spencer’s account,

Spencer’s wife purchased a cashier’s check for payment of Clements’s

$10,000 victory bonus. Id., SX 1. The sixth transfer of money from Stacy to

Spencer occurred on March 14, 2008, in the amount of $15,000.

Copies of Spencer’s invoices and his “working copy” of bills to

Wooten’s campaign were admitted in evidence. 5 RR 35-47, 81-83. Spencer

invoiced Wooten’s campaign $4,536.75 on February 20, 2008, $2,409.25 on

March 4, 2008, $10,009.25 on March 23, 2008, $12,000 on April 16, 2008,

$15,000 on April 25, 2008, and $5,000 on May 26, 2008. Id. On May 29,

2008, Spencer invoiced Wooten’s campaign $84,368.75, with credits and

adjustments of $51,929.82 for payments between February 13, 2008 and

April 28, 2008, leaving a balance due of $37,438.93. 5 RR 82. Spencer

invoiced Wooten’s campaign $9,241.50 on June 3, 2008. By invoice dated

July 1, 2008, Spencer’s cumulative bill to Wooten showed she still owed

Spencer $33,369.91. 5 RR 45-48, 115.

In the cover letter forwarding Spencer’s May 29, 2008 invoice to

Wooten, he advised that “we recognize your July filing deadline with the

Ethics Commission, and will render a supplemental Invoice to your office

39 in June.” 5 RR 84-85. Spencer testified he knew Wooten needed

information regarding amounts spent or incurred for the benefit of her

campaign in order to report these items properly on her campaign finance

report filed with the Ethics Commission.5 RR 83-84. Spencer believed a

candidate is required to report not only campaign contributions and

expenses on campaign finance reports, but also must list funds the

candidate holds in a campaign account on a given date. Spencer testified

he did not prepare Wooten’s campaign finance reports, but when asked, he

provided the information she needed to prepare the reports. See 5 RR 83-

84.

D. Communications

According to Spencer, he did not reveal details about his business

relationship with Wooten to the Carys, or the Carys’ business with Wooten.

4 RR 173-74. Spencer testified he did not provide information to David and

Stacy about Wooten’s campaign, and had told David that David could not

participate in supporting the campaign. 4 RR 127-29. Spencer went to

David’s office at some point during Wooten’s campaign and saw a Wooten

campaign sign there. 4 RR 128.

Spencer also testified regarding the events surrounding Wooten’s

recusal in March 2009 from David’s SAPCR. 4 RR 130-34. Spencer

acknowledged at trial that David contacted him to advise him that an

answer had been filed for Jennifer in the SAPCR by Benavides. 4 RR 131.

40 Benavides, Wooten’s campaign treasurer and an associate with the law

firm with which Wooten practiced before her election, filed an answer on

behalf of Jennifer on February 27, 2009 at 9:59 a.m., in advance of a March

2, 2009 hearing before Wooten. 5 RR 88; SX 217. David called Spencer,

mentioning Benavides was Jennifer’s new counsel. 4 RR 132-33. Spencer

testified that he called Benavides because of this information, and he knew

that Benavides had been Wooten’s campaign treasurer. Id.

But phone records show that David called Spencer at 11:03 a.m., and

the two talked for “a minute,” after which Spencer called Benavides, but

not at David’s request. 5 RR 88-90, SX 8A. David then called Spencer and

spoke to him for several minutes. 5 RR 90-91, SX 8A. After speaking with

David, Spencer talks with Benavides by phone, and then calls back David

at the end of his call with Benavides. 5 RR 91, SX 8A. Spencer maintained

at trial that he did not discuss with David any of those phone calls with

Benavides. Id.

A June 9, 2009 email exchange between David and Spencer was

admitted in evidence regarding a June 8, 2009 decision of the United

States Supreme Court in Caperton v. A.T. Massey Coal Co., 556 U.S. 868

(2009), a case involving judge recusal. 4 RR 133. Spencer’s email to David

included the following text from an article about the decision:

41 Today’s decision by the U.S. Supreme Court that judges who receive campaign contributions large enough to create the appearance of bias should recuse themselves.... In Caperton v. Massey, the nation’s high court ruled 5–4 that because a West Virginia Supreme Court justice received $3 million in campaign contributions from an energy company executive, the judge should not have taken part in a decision affecting the executive’s company.

4 RR 133-34. Spencer emailed David that “I think you’ll understand why

I’m interested in this subject matter.” Id. David then emailed the article

to Spencer. 4 RR 135. Spencer denied that the reason he and David were

interested in the news article was because Stacy’s money was used to

finance Wooten’s campaign. 4 RR 135-36. Instead, Spencer indicated that

he was interested in the article as it pertained to another family he had

heard about, in which the grandparents had filed and successfully obtained

custody of the granddaughter after the girl’s mother had passed away. 4

RR 136. When questioned by the State as to why Spencer had not ever

mentioned this reason in any previous hearings, Spencer responded that

he had never been asked about his interest in the article at those hearings.

Id. But Spencer acknowledged that, at the time he and David exchanged the above email, a motion for recusal was pending before Wooten. 4 RR

135.

42 John “Jay” Valentine11

John “Jay” Valentine testified that he served on a board of directors

with Appellant beginning in 2000 or 2001, and the two remained friendly

after their service term ended. 8 RR 148. Appellant later contacted

Valentine about working for TDI, and Valentine joined the software

company in November of 2007 as vice president of sales and marketing.

8 RR 148-49, 174.

Earlier in 2007, Appellant told Valentine that he was going through

“a family situation,” though Valentine did not recall if it was a divorce or

custody suit. 3 RR 152. Appellant indicated that he “was making efforts

to change family law through an organization he was involved in,” and also

“trying to make some changes in one of the elected officials” to “change

some rulings that he had had.” 8 RR 152. Appellant did not directly name

Judge Sandoval as the elected official, but did convey that Judge Sandoval

had “made an adverse set of rulings” against him; Valentine recalled that,

over several conversations through early 2008, Appellant had said that he

“hired an individual through the Speaker of the House’s office in the State

Capitol and was working with that person, and that they were running a

campaign to get rid of this Mr. Sandoval.” 8 RR 152-54. Valentine later

learned that individual hired by Appellant was Spencer. 8 RR 154-55.

11 The State-Appellee presents its own summary of Valentine’s testimony, except for the portion marked as quoted.

43 Valentine testified that he saw campaign signs for Wooten in Appellant’s

office. 8 RR 154-55.

In October or November of 2008, the TDI sales team was “really

struggling” and having difficulty selling the software; Appellant told

Valentine he should hire Spencer because “he’s a fixer.” 8 RR 156-57.

When Valentine met Spencer in November or December of 2008, Spencer

told him that Spencer “could help [TDI] in some of the things because he

knew all these legislators.” 8 RR 158. Spencer gave Valentine the

impression that he had worked with Appellant on the “Sandoval situation,”

which involved a hard campaign” but they succeeded in “boot[ing] out Mr.

Sandoval.” Id. Spencer commented several times that he “owned” Wooten,

and “that she was going to help in their endeavor for making some

changes”—specifically, reverse the adverse rulings in Appellant’s divorce

or child-custody case. 8 RR 158-59.

Although Valentine resisted hiring a “lobbyist” who knew nothing

about TDI’s software, Appellant was “really driving the effort to bring

Stephen Spencer;” Spencer was eventually hired as a consultant. 3 RR

159-60. Both Spencer and Appellant commented “several times” to

Valentine that “Spencer was hired to fix David Cary’s divorce case.” 8 RR

173.

In March 2009, Valentine complained about Spencer to the TDI Board of Directors and demanded an outside investigation of Spencer by the Board based on an incident Valentine thought 44 was a basis for TDI severing its relationship with Spencer. [8 RR 165-67.] Valentine’s complaints about Spencer related to Spencer’s interaction with a female marketing director while on a business trip. [8 RR 161-62, 166.] In an email and memorandum setting forth his complaints about Spencer, Valentine also included information about the claims David and Spencer had made about getting Wooten elected and what Wooten was going to do in connection with David’s family law matters. [8 RR 162-66, SX 104, 105.] . . . [To Valentine’s knowledge, the Board took no investigative action. 8 RR 166.]

. . . TDI fired Valentine in April 2009. [8 RR 169.] In June 2009, Valentine filed an employment discrimination claim against TDI. [8 RR 166-67.] In the employment discrimination complaint, Valentine asserted that David and Spencer had told him about their role in getting Wooten elected and bragged about bribing a judge. [8 RR 167-68 (SX 104, 105 marked as exhibits, submitted with Valentine’s EEOC complaint), see 8 RR 163-67.] Valentine testified that the reason he included those claims in his employment discrimination complaint was to show David’s conflict of interest with regard to Spencer. [See 8 RR 166-67.] Valentine testified that his employment discrimination claim against TDI was arbitrated, resulting in an arbitration award in his favor. [8 RR 170-71.]

2014 WL 4261233, *25.

David Stinnett12

Between 2008 and 2010, David Stinnett worked at TDI as a sales

manager, and interacted with Appellant at work. 8 RR 190-91. Stinnett

testified that Appellant “was pretty passionate about family law and

family protection” and told Stinnett on several occasions how “Collin

12 David Stinnett was not called to testify at Stacy’s trial.

45 County, itself was – he felt like there was some crooked judges in the

county as relating to his personal experience with them.” 8 RR 192-93. In

late 2008, Stinnett met Spencer, whom Stinnett was told “was just a

person of influence within the state itself, and that he could help [TDI] by

influencing people within the State of Texas to have meetings[.]” 8 RR 194.

But during Stinnett’s career with TDI, Spencer “arranged” two meetings

that Stinnett attended, one with an associate from Austin Energy and the

other with the Department of Information Resources; neither meeting

resulted in sales, and not for lack of effort on Stinnett’s part. 8 RR 199-202.

Stinnett also testified that, during their return drive from one of

those meetings, Spencer made a phone call, asking the other party if that

person was “willing to run for judge” and that he “had the funding able to

find” him. 8 RR 203. After ending the call, Spencer told Stinnett that he

had worked with Appellant, and “[t]here was a judge up in Collin County

that we helped get removed and replaced,” and that was how he spent his

time “on the side kind of doing some of this stuff.” 8 RR 204. Also, “by

taking what Stephen Spencer had talked about and the information David

Cary had given [him],” Stinnett testified that he “put two and two

together” and understood Appellant had “the judge in his child-custody

case removed from office,” particularly after Appellant had stated “how

they[sic] were some dirty judges [within Collin County] and that he’s

46 particularly worked on getting a judge removed out of office and replaced

with somebody else.” 8 RR 205.

It appeared to Stinnett that Spencer and Appellant were good

friends, and Appellant also told Stinnett that he and Spencer “had worked

together to get a judge replaced within Collin County.” 8 RR 195, 209. On

cross-examination from Appellant’s counsel, Stinnett admitted neither

Spencer nor Appellant had mentioned a specific judge, and he hadn’t

“take[n] it in any kind of nefarious or illegal or bad way.” 8 RR 217. But

upon re-direct, Stinnett clarified that his impression was that Appellant

and Spencer had “actively sought a candidate to replace the judge that he

was displeased with,” as Stinnett had had no knowledge prior to trial of

campaign signs placed by Appellant, or that Spencer was “a manager or

anything at that time” for Wooten’s campaign. 8 RR 218-19. Stinnett also

denied knowing over what matters or cases the judge whom Spencer and

Appellant were “targeting” handled. 8 RR 219.

Brian Webb13

Brian Webb is an attorney who has practiced family law since 1975.

6 RR 20. At the time of Appellant’s trial, he was the President of the Texas

Family Law Foundation, “an organization of family lawyers that tries to

influence the legislature regarding family law legislation, statutes, pro and

con.” 6 RR 21. Webb testified that the first legislative session that the

13 Brian Webb was not called to testify at Stacy Cary’s trial.

47 foundation visited was in 2007. 6 RR 22. One day during that session,

Spencer approached him about a bill Spencer had drafted relating to

grandparents’ rights and parents’ rights. 6 RR 23. Webb and the Texas

Family Law Foundation suggested some changes to create an “acceptable

alternative bill,” but Spencer “and those supporting him really weren’t

interested in the changes we were wanting to make.” 6 RR 24. Webb also

denied that Spencer ever called him to “ask for advice about getting a

candidate to run against Charles Sandoval;” denied telling Spencer he will

not practice in Collin County because of Judge Sandoval; and denied

considering himself “to be someone that Stephen Spencer could call and bat

ideas around with.” 6 RR 24-25.

SUMMARY OF THE ARGUMENTS

Appellant raises three claims of insufficient evidence, one claim of

ineffective assistance of counsel, and two claims that the bribery statute

is unconstitutional as applied to Appellant and on its face as vague and

overbroad. In his first point of error, Appellant claims the evidence is

insufficient to sustain his six convictions for bribery because, (A) the

evidence showed that monies paid by Appellant’s wife under his direction

were consisted of “political contributions”; (B) the State could not prove

Wooten was a “public servant” at the time she allegedly considered

becoming a judicial candidate in exchange for benefits offered or given by

Appellant, as the decision to [run for candidacy] is made as a private

48 citizen; (C) the State failed to demonstrate that Wooten ever considered

leaving the judicial race, and thus the State did not meet its burden of

proof in demonstrating Wooten proceeded and continued with her judicial

campaign in exchange for benefits offered or given by Appellant; (D) there

was no evidence that supported Wooten had agreed to issue favorable

rulings in Appellant’s civil cases in exchange for the benefits offered or

given by Appellant; and (E) the State failed to demonstrate Appellant had

the requisite intent to commit bribery. In his third point of error,

Appellant claims the evidence is insufficient to sustain his conviction for

money laundering, given that the State failed to demonstrate Appellant

committed the alleged predicate crime of bribery for the reasons listed in

Appellant’s first point of error. In his second point of error, Appellant

claims there is insufficient evidence to support the jury’s finding of guilt in

the charge of engaging in organized criminal activity (“EOCA”), as the

State failed to prove any of the alleged predicate crimes-bribery, money

laundering, or tampering with a government record-were committed. But

the evidence adduced at trial disproves these arguments and demonstrates

Appellant’s guilt.

In his fourth point of error, Appellant alleges that trial counsel was

ineffective because he failed to file timely amended election of punishment

by the court, arguing that if counsel had timely amended the election,

counsel would have been able to present evidence of the sentences received

49 by Wooten and Stacy Cary for their participation in the offenses were

relevant to Appellant’s sentencing. Appellant, however, is incorrect

because, the Court of Criminal Appeals has held that a defendant has no

right to present evidence of a co-defendant’s punishment as mitigating

circumstances.

And in his final two points of error, Appellant claims that the bribery

statute, Section 36.02(a)(1),(4), is unconstitutional as applied to him and

the statute is vague and overbroad on its face. First, Appellant failed to

preserve the issues for appeal and is estopped from asserting a claim that

is inconsistent with his prior conduct at trial. Regardless, courts have

already found that bribery is not protected by the First Amendment.

I. STATE’S REPLY TO POINT OF ERROR ONE14

In his first claim, Appellant alleges that the evidence adduced at trial

is insufficient to sustain his six convictions for bribery. Brief at 13-31.

But, as this Court already determined when it overruled the legal

sufficiency argument in the Stacy Cary appeal,15 the evidence, when

14 In his opening brief, Appellant did not frame his argument with reference to explicit “points of error.” As a result, the State has organized its argument in the order that it believes the Court may best proceed to resolve this appeal. See Tex. R. App. P. 38.2(a)(C) (West 2014).

15 Although the Court’s opinion in Stacy Cary v. State is unpublished–and, hence, does not bind the panel Court under principles of stare

50 viewed in the light most favorable to the verdict, demonstrates that a

rational trier of fact could have convicted Appellant of bribery beyond a

reasonable doubt; hence, the Court should overrule Appellant’s point of

error number one.

A. Standard of revi review for sufficiency of the evidence challenges. challenges

The Texas Court of Criminal Appeals has mandated that the

sufficiency of evidence standard established in Jackson v. Virginia, 443

U.S. 307 (1979) is the only standard to be used in a criminal case. Brooks

v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.); see e.g. Ervin v. State, 331 S.W.3d 49, 52-56 (Tex. App.-Houston [1st Dist.] 2010, pet. ref’d). On review, all evidence, and any reasonable inferences from the

evidence, is viewed in the light most favorable to the verdict and it is

determined whether any rational trier of fact could have found the

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at

319; Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).

The jury is the exclusive judge of witness credibility and the weight

of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010). The jury also resolves or reconciles conflicts in the evidence in favor

of the verdict. Id.; Jackson, 443 U.S. at 326. “An appellate court

decisis–because the evidence in both appeals is largely identical, the State contends that the Stacy Cary appeal has persuasive authority, as would any unpublished opinion of this Court.

51 determines whether the necessary inferences are reasonable based upon

the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.” Ervin, 331 S.W.3d at 55. The appellate court must view both direct and circumstantial evidence equally

when reviewing the record based on a sufficiency of the evidence claim.

Jackson, 443 U.S. at 326; Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). The reviewing court does not resolve any conflict of fact,

reweigh the evidence, or evaluate the credibility of the witnesses. Garza

v. State, 841 S.W.2d 19, 21 (Tex. App.-Dallas 1992, no pet.). When a court’s charge authorizes the jury to convict on more than

one theory, the verdict of guilty will be upheld if the evidence is sufficient

on any one of the theories. Guevara v. State, 152 S.W.3d 45, 49 (Tex.

Crim. App. 2004).

B. Applicable law to establish bribery

As relevant to this case, a person commits bribery if he intentionally

or knowingly offers, confers, or agrees to confer on another, any benefit as

consideration for (1) the recipient’s decision, vote, recommendation, or

other exercise of official discretion in a judicial proceeding, or (2) the

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

discretion as a public servant. Tex. Penal Code Ann. § 36.02(a)(2), (1)

(Vernon 2008) (respectively). Also, it is an exception to the application of

52 either of those provisions-as relevant to Appellant-that the benefit is a

political contribution as defined by the Election Code. Id. at § 36.02(d).

When it is alleged that an individual offers, confers, or agrees to

confer on another, and the jury was properly instructed that proof of any

one of the three alleged acts would warrant conviction, no proof of a

bilateral agreement is needed.16 Martinez v. State, 696 S.W.2d 930, 933

(Tex. App.–Austin 1985, pet. ref’d) (distinguishing from McCallum v. State,

686 S.W.2d 132 (Tex. Crim. App. 1985) (proof of a bilateral agreement

required where indictment only alleged a single theory of bribery)).

Rather, in such an instance, the offense of bribery is complete when the

offer is made. Martinez, 696 S.W.2d at 933 and n.3 (noting the “McCallum

court’s understanding of the ‘as consideration for’ language found in §

36.02 and in Model Penal Code § 240.1 is not that of the model code

commentators”) (citing Model Penal Code § 240.1, Comment 4(b), (c)); see

Mustard v. State, 711 S.W.2d 71, 75 (Tex. App.–Dallas 1986) (“The offense of bribery focuses on the mental state of the actor, and is complete if a

private citizen, by offering, conferring, or agreeing to confer intends an

16 Vasquez v. State, 665 S.W.2d 484 (Tex. Crim. App. 1984), overruled on other grounds by Gonzales v. State, 723 S.W.2d 746 (Tex. Crim. App. 1987) (en banc); see also Lawton v. State, 913 S.W.2d 542, 551 (Tex. Crim. App. 1995) (en banc) (where State pleads alternative theories of same offense, it need not prove guilt under all theories alleged), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).

53 agreement.”) (citing Hubbard v. State, 668 S.W.2d 419, 421 (Tex.

App.-Dallas 1984, pet. granted)).

C. Applicable law to the six charges of bribery against Appellant.

Appellant was charged by indictment with committing six acts of

bribery, generally by “intentionally and knowingly offer, confer, and agree

to confer a benefit, . . . to Suzanne H. Wooten, a public servant, . . . as

consideration for Suzanne H. Wooten’s decision, opinion, recommendation,

vote, and 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[.]” 1 CR

159-64 (Counts Two through Seven, alleging a payment of $50,000.00 on

January 4, 2008; $25,000.00 on January 30, 2008; $25,000.00 on February

14, 2008; $25,000.00 on February 26, 2008; $10,000.00 on March 7, 2008;

and $15,000.00 on March 14, 2008, respectively).

The jury charge instructed that Appellant may be found criminally

responsible for bribery, either as a primary actor or under the law of

parties. 2 CR 643-48. A party may be criminally responsible under the

law of parties in several ways. Hayes v. State, 265 S.W.3d 673, 678 n.4

(Tex. App.–Houston [1st Dist.] 2008, pet. ref’d). “An individual is

criminally responsible as a party to an offense if the offense is committed

by his own conduct, by the conduct of another for which he is criminally

54 responsible, or both.” Tex. Penal Code Ann. § 7.01(a). A person is also

criminally liable for an offense committed by the conduct of another if

“acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense.” Id. at § 7.02(a)(2).

The jury charge instructed that Appellant may be found criminally

responsible for bribery, either as a primary actor or under the law of

parties. 2 CR 643-48. A party may be criminally responsible under the

law of parties in several ways. Hayes v. State, 265 S.W.3d 673, 678 n.4

(Tex. App.–Houston [1st Dist.] 2008, pet. ref’d). “An individual is

criminally responsible as a party to an offense if the offense is committed

by his own conduct, by the conduct of another for which he is criminally

responsible, or both.” Tex. Penal Code Ann. § 7.01(a). A person is also

criminally liable for an offense committed by the conduct of another if

“acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to

It is well-settled that a jury may be charged on the law of parties

even though no such allegation is contained in the indictment. Marable v.

State, 85 S.W.3d 287, 287 & n.2 (Tex. Crim. App. 2002) (collecting cases); see Adames v. State, 353 S.W.3d 854, 861 (Tex. Crim. App. 2011) (reaffirming that state and federal law both specify that due process does

55 not require defendant’s culpability as a party to be pled in charging

instrument), cert. denied, 132 S. Ct. 1763 (2012). “This rule applies not

only to the law of parties found in [s]ection 7.02(a)(2) [of the Penal Code]

but also the law of parties found in [s]ection 7.02(b).” Montoya v. State,

810 S.W.2d 160, 165 (Tex. Crim. App. 1989).

With respect to sections 7.01 and 7.02(a)(2), a conviction under the

law of parties requires a showing that, at the time of the offense, the

parties acted together and contributed to a common purpose. Patterson v.

State, 950 S.W.2d 196, 202 (Tex. App.-Dallas 1997, pet. ref’d). In other words, the State must show conduct constituting an offense, plus an act by

the defendant “done with the intent to promote or assist such conduct.”

Trenor v. State, 333 S.W.3d 799, 806 (Tex. App.–Houston [1st Dist.] 2010, no pet.). To determine whether a defendant participated as a party, the

Court may examine events occurring before, during, and after the

commission of the offense and may rely on actions demonstrating an

understanding to commit the offense. See Ransom v. State, 920 S.W.2d

288, 302 (Tex. Crim. App. 1994).

D. The evidence is sufficient to support the jury’s findings of consideration for favorable rulings and Appellant’s intent to commit bribery.

Appellant argues that there was insufficient evidence of bribery as

consideration for favorable rulings, and insufficient evidence to

demonstrate Appellant had the requisite intent to commit bribery. Brief 56 at 26-31. But the record reflects that the evidence presented at trial

supports the jury’s finding of guilt in all six charges of bribery committed

by Appellant.

A person acts intentionally when it is his conscious objective or desire

to engage in the conduct or cause the result. Tex. Penal Code §6.03(a)

(Vernon 2008). A person acts knowingly with respect to the nature of his

conduct or to circumstances surrounding his conduct when he is aware of

the nature of his conduct or that the circumstances exist. Id. at § 6.03(b).

Intent or knowledge may be inferred from the accused’s acts, words, and

conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). When it

is alleged and proved that the defendant offered a proscribed benefit, it is

not necessary to further prove that the offer resulted in a bilateral

arrangement or unlawful contract with the other party. Watts v. State,

No. 09-11-00383-CR, 2012 WL 403859, *2 (Tex. App.-Beaumont 2012)

(mem. op..), citing Martinez, 696 S.W.2d at 933. And important here: The

offense of bribery is complete when the offer is made. Id.

To prove that a person is a party to the offense, if not the primary

actor, the State must prove conduct constituting an offense plus an act by

the defendant done with the intent to promote or assist such conduct. Beier

v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). Since an agreement between parties to act together in a common design can seldom be proved

by words, the State may rely on the actions of the parties to establish an

57 understanding or a common design to commit the offense, shown by direct

or circumstantial evidence. Ex parte Prior, 540 S.W.2d 723, 727-28 (Tex.

Crim. App. 1976); Miller v. State, 83 S.W.3d 308, 314 (Tex. App.-Austin

2002); Pesina v. State, 949 S.W.2d 374, 383 (Tex. App.-San Antonio 1997,

no pet.).

Again, the reviewing court may look to events before, during, and

after the commission of the offense. Ransom, 920 S.W.2d at 302. There

must be sufficient evidence of an understanding and common design to

commit the offense. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.

2004) (citing Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App.

1985)). Each fact need not point directly to the guilt of the defendant, as

long as the cumulative effect of the facts are sufficient to support the

conviction under the law of parties. Id. As stated by the Beaumont Court,

when it reviewed a claim that the State failed to demonstrate the

appellant had intentionally or knowingly committed an illegal act:

The jury bore the burden of deciding whether [Appellant] merely wired money at [her son]’s direction under the belief that [her son] was helping [a correctional officer] and the inmates or acted with an understanding and common design to commit the offense of bribery. See Hooper, 214 S.W.3d at 13; see also Ransom, 920 S.W.2d at 302. Watts, 2012 WL 403859 at *2-3. Similarly here, the jury bore the burden of deciding whether

Appellant had no part in the payments totaling $150,000.00, made by his

58 wife to Spencer, pursuant to a contract agreement for Spencer’s services-or

whether Appellant participated with an understanding and common design

to commit the offense of bribery.

At trial, the State presented evidence that Judge Sandoval presided

over Appellant’s divorce proceedings-a “contentious” and “litigious” suit

which was finalized in the fall of 2004. 2 RR 99-101, 119. Within six

months of that final order, Appellant’s ex-wife filed a Petition to Modify the

Parent-Child Relationship, after several other motions had been mediated

or otherwise resolved-including the denial of Appellant’s motion for Judge

Sandoval to recuse himself, Appellant’s motion to transfer venue, and

Appellant’s writs of mandamus regarding Judge Sandoval’s rulings. 2 RR

106, 111-14, 117-21. Ultimately, Judge Sandoval entered an order

regarding the Petition to Modify, removing Appellant as joint managing

conservator of his daughters, and, among other rulings, for Appellant to

pay for his ex-wife’s attorney’s fees in excess of $416,000.00. 2 RR 126-27.

Rather than appeal, Appellant filed a new motion to modify nearly two

months later, plus another motion to transfer; the attorney who

represented Appellant’s ex-wife-an attorney who is board certified in

family law and who has practiced law for more than 30 years-testified he

believed those motions were “really a thinly veiled attempt simply to

transfer the case rather than to actually modify the support,” given that

he had never seen a motion requesting to increase the amount of child

59 support a petitioner should pay. 2 RR 128-30. Judge Sandoval ultimately

found Appellant was filing frivolous pleadings and sanctioned him

$50,000.00. 2 RR 132-37.

The State also presented evidence that, in the same year as Judge

Sandoval’s rulings, Appellant felt there were “some crooked judges in

[Collin County] as relating to his personal experience with them,” namely

his child-custody proceedings. 8 RR 192. Appellant also told his former

colleague, Jay Valentine, that he “was trying to make some changes in one

of the elected officials . . . to change some rulings that he had had,” and

that he was working with someone in “running a campaign to get rid of”

that elected official. 8 RR 151-54. Although Appellant did not specify “who

the elected official was,” Appellant had mentioned, at some point, “a judge

named Sandoval” who was a “person that had made an adverse set of

rulings” against him. 8 RR 151-54.

From this evidence, a rational jury could have reasonably concluded

that Appellant wanted Sandoval unseated from the bench so that Sandoval

would be removed from his cases.

60 Additionally, the State presented the following evidence: 17

After being introduced to one another, Spencer and Appellant exchanged emails, agreeing to meet on Tuesday, October 2, 2007, at the home of Appellant and his wife in Dallas. [3 RR 187-88.] . . . Spencer traveled from his home near Austin, Texas to meet with [Appellant] and Stacy. [3 RR 162, 168-69.] Shortly after that meeting, Spencer reviewed the court file in [Appellant]’s divorce case and [Suit Affecting the Parent-Child Relationship] SAPCR and began contacting individuals in Collin County to find a candidate to run against Sandoval for the office of judge of the 380th Judicial District Court. [3 RR 199-215.] The deadline for filing as a candidate in that race was January 2, 2008. [3 RR 65, 224.] Therefore, there was a limited amount of time to locate a candidate. Because there was no Democrat candidate in that judicial race, the winner of the Republican primary would be the elected judge following the general election in the fall of 2008. [2 RR 146, 3 RR 70, 153.]

In his discussions with Wooten, Spencer expressed his belief that a successful campaign to unseat Sandoval would require $100,000 to $150,000, and Wooten believed that was a reasonable estimate. [3 RR 208, 4 RR 24.] The primary election was to be held only two months after Wooten declared her candidacy, and the evidence indicated it was not likely Wooten could solicit significant campaign contributions in that limited period of time, particularly since the majority of campaign contributions in judicial races are made by lawyers and lawyers are not readily inclined to make contributions to a candidate seeking to unseat an incumbent judge. [2 RR 143-44.] Despite

17 Except for the bracketed text, this summary of evidence was presented in this Court’s opinion in Stacy Stine Cary v. State, No. 05-12-01421-CR, 2014 WL 4261233, *29-33 (Tex. App.-Dallas Aug. 28, 2014) (unpub.); although these trials were severed, nearly the same evidence was produced at Appellant’s trial, as indicated by the bracketed citations to Appellant’s trial records.

61 this fund-raising challenge, Wooten agreed to run for election, and she appointed Spencer, who had never before managed a political campaign, to serve as her campaign manager.

[Stacy made payments to Spencer and Spencer used a large portion of those payments to make campaign expenditures for the Wooten campaign at times when the campaign had not raised enough money to cover them.] . . . For example, the day following Wooten’s January 2, 2008 declaration of her candidacy, Stacy attempted to wire transfer $50,000 to Spencer. [4 RR 6-7.] When that wire transfer was unsuccessful, Stacy wire transferred $50,000 the following day, January 4, 2008. [4 RR 8-9.] Before that wire transfer, Spencer had $2.39 in his bank account. [SX 94.] The evidence establishes Spencer immediately began utilizing money transferred by Stacy to pay campaign consultant Clements and other campaign expenses. [7 RR 102-03, SX 94.] Spencer testified that without the money wire transferred by Stacy, he would not have been able to pay Clements $7,500 on January 7, 2008, and $7,500 on January 8, 2008. [4 RR 44.]

Sandoval’s February 4, 2008 Campaign Finance Report indicated Sandoval had raised $12,575 in campaign contributions, had expended $8,997.08, and had a balance of $4,231.37 in his campaign account. [SX 175, 4 RR 95.] The bank records for Wooten’s campaign account show that on February 4, 2008, the account had a balance of $2,366, and on February 5, 2008, the account had a balance of $1,933. [SX 94, 4 RR 97-99.] Despite the fact Sandoval had received significantly greater campaign contributions than Wooten, Spencer told Clements he was not impressed with the amount Sandoval had raised. [4 RR 94-95, SX 14.] Spencer also communicated to Wooten and Clements that Sandoval was not “in a position to match our resources.” [Id.] Clements interpreted Spencer’s email to mean that there were people Spencer could go to for money. [6 RR 248.]

62 The evidence showed numerous communications between Spencer, David, and Stacy at or about the time of transfers of funds from Stacy to Spencer. [SX 98C, 7 RR 176-91.] For example, on January 29, 2008, the night before the second payment by Stacy to Spencer, Spencer telephoned David’s cell phone. [7 RR 184-85.] Immediately thereafter, either David or Stacy telephoned Spencer from David and Stacy’s home phone. [Id.] Spencer then telephoned Wooten. [Id.] After the telephone call to Wooten, Spencer telephoned David and Stacy’s home.[Id.] Stacy made the second payment to Spencer on January 30, 2008, and Spencer deposited that payment to his account on February 1, 2008. [Id., SX 94, 98C.] That payment posted to Spencer’s bank account on February 4, 2008. [Id.] On February 5, 2008, Spencer sent an email to Wooten indicating that Sandoval “cannot match our resources,” even though Wooten had raised only $3,620 for her campaign at that time. [4 RR 94-95, SX 14, 4 RR 98.] On February 14, 2008, Stacy made her third payment to Spencer. [7 RR 186.] On that day, Spencer exchanged text messages by phone with David between 5:12 p.m. and 5:23 p.m. [ 7 RR 187, SX 98C.] Between 5:34 p.m. and 5:46 p.m., Spencer then communicated in succession with Wooten, Clements, and David. [7 RR 188.] Stacy’s third payment to Spencer posted to his account on February 15, 2008. [Id., 7 RR 188-89.] On February 26, 2008, Stacy made her fourth payment to Spencer. [Id.] At 4:41 a.m. on that day, Spencer’s assistant confirmed to Spencer by email that radio advertising time had been purchased for Wooten’s campaign. At 5:24 a.m. and 6:59 a.m., David received text messages from Spencer. At 9:17 a.m., Stacy sent instructions to Tolleson Private Bank to wire $25,000 to Spencer. [Id.] At 2:14 p.m., the wire transfer was posted to Spencer’s account. [Id.] At 2:37 p.m. and 2:53 p.m., Spencer’s wife, Kipling Spencer, purchased cashier’s checks for payment of Wooten campaign expenses from the funds wired to Spencer’s account by Stacy. [Id., 7 RR 191.]

63 On March 4, 2008, Wooten won the Republican primary. On March 7, 2008, Stacy made the fifth payment to Spencer. [7 RR 192-93.] On March 7, 2008, between 7:07 a.m. and 8:29 a.m., Spencer text-messaged four times with David. [7 RR 193- 94, SX 98C.] Clements text-messaged Spencer at 8:17 a.m. [Id.] David and Stacy had three phone conversations between 8:45 a.m. and 9:10 a.m. Between 9:23 a.m. and 10:02 a.m., Spencer and David exchanged thirteen text messages. [Id.] At 10:47 a.m., Stacy attempted to reach David by telephone. [Id.] At 10:58 a.m., Stacy sent instructions to Tolleson Private Bank to wire $10,000 to Spencer. [Id.] At 11:40 a.m., David text- messaged Spencer. At 2:51 p.m., the wire transfer of $10,000 posted to Spencer’s bank account. [Id.] Between 3:21 p.m. and 3:52 p.m., Spencer and David exchanged eleven text messages. [Id.] At 3:59 p.m., Kipling Spencer purchased a cashier’s check made payable to Clements in the amount of $10,000. [7 RR 194.] Between 6:24 p.m. and 6:31 p.m. on March 13, 2008, the day of the sixth payment from Stacy to Spencer, Spencer text messaged David six times. [7 RR 195, SX 98C.] At 9:41 p.m., Stacy sent instructions by email to Tolleson Private Bank to wire Spencer $15,000. [Id.] On March 14, 2008, the sixth payment from Stacy to Spencer in the amount of $15,000 was posted to Spencer’s bank account. [Id.]

Spencer testified he kept [the Carys] removed from his work on Wooten’s campaign. However, evidence of the consulting agreement between Spencer and Stacy and a summary of invoices purportedly related to the agreement were introduced in evidence. The consulting agreement is dated prior to Spencer’s meeting with David and Stacy where his consulting services were first purportedly discussed. [3 RR 230, 237-38.] The consulting agreement, dated October 1, 2007, was strikingly similar to Spencer’s October 15, 2009 engagement letter with TDI. [4 RR 115-22.] Both agreements include an identical phrase relating solely to TDI: “[a]ny additional time spent on TDI’s behalf is part and parcel to, and inclusive of this

64 engagement.” [4 RR 120-21, 5 RR 94-95.] Spencer admitted [that he had testified at a previous hearing] that when he left the October 2, 2007 meeting with David and Stacy, he did not know the name of David’s employer. [5 RR 95-96.]

The August 1, 2008 “summary” invoice for purported consulting services rendered by Spencer did not apply a credit for the $50,000 wire transfer from Stacy to Spencer on January 4, 2008, and the $25,000 transfer on February 26, 2008 from Stacy to Spencer did not appear as a credit on the invoice, but was handwritten on Stacy’s copy of the invoice. [3 RR 241-52, 5 RR 115-16.] The work product purportedly produced by Spencer pursuant to the consulting agreement was insubstantial, especially in light of the generous compensation of $25,000 for each of the four “projects” outlined in the consulting agreement. [3 RR 248-50, 264-68, 5 RR 12-17, 4 RR 20-22.] Further, the evidence indicated that Stacy purportedly paid Spencer for “projects” at times when she had not been invoiced for the work and Spencer had not provided any work product. Stacy transferred $150,000 to Spencer between January 4, 2008 and March 14, 2008, although Spencer testified he was to be paid $25,000 for each of four “projects,” which would total only $100,000 under the consulting agreement. [3 RR 243-48, 4 RR 41-43, 65.]

From the evidence relating to Spencer’s consulting agreement with Stacy, the jury could have reasonably inferred the agreement was a subterfuge, fabricated several years after the purported effective date to provide a false explanation for the transfers of money from Stacy to Spencer that were used to finance Wooten’s campaign. . . . ... The jury also heard evidence concerning a June 2009 email exchange between Spencer and David regarding an opinion of the United States Supreme Court concerning judge recusal. See Caperton, 556 U.S. 868[; 4 RR 133.] The email included a

65 statement from an article discussing Caperton, stating that “judges who receive campaign contributions large enough to create the appearance of bias should recuse themselves. . . .” I[4 RR 133-36.] n the email, Spencer stated to David that he thought David would understand why he was interested in the subject matter of that case, although Spencer denied that he and David were interested in Caperton because Stacy’s money was used to finance Wooten’s campaign. [Id.]

After Wooten became the judge presiding over David’s SAPCR, David’s motion to modify was set to be heard by Wooten. [3 RR 76, 97-98.] However, shortly before the hearing on the SAPCR, Benavides appeared in the case on behalf of Jennifer. [Id.] This appearance as counsel would result in Wooten’s recusal because Wooten had indicated an intent to recuse herself for a period of nine months after January 2009 from cases in which Benavides appeared. [3 RR 74.] The evidence showed David contacted Spencer regarding Benavides appearing in the SAPCR, and Spencer, in turn, contacted Benavides and Basinger and told them to [withdraw] despite not being able to provide a satisfactory reason. [3 RR 99-101.] The evidence showed numerous other contacts between Spencer and David shortly after Benavides’s appearance in the SAPCR. [7 RR 198-200, SX 98C.] Further, the evidence showed that shortly after Benavides appeared in the SAPCR, Spencer contacted the office of Judge Oldner, the administrative judge. . . . [Id.] Further, the evidence showed that despite Benavides and Basinger appearing in the suit brought by Stacy against Jennifer and Suster that had been transferred to Wooten’s court, Wooten did not voluntarily recuse herself in that lawsuit. [SX 7A.]

See n.15, supra. The State also presented testimony from Jay Valentine, Appellant’s former colleague at TDI, who stated that both Spencer and

66 Appellant “said several times” that “Spencer was hired to fix [Appellant]’s

divorce case.” 8 RR 173.

When a court’s charge authorizes the jury to convict on more than

one theory, the verdict of guilty will be upheld if the evidence is sufficient

on any one of the theories. Guevara, 152 S.W.3d at 49. And circumstantial

evidence is as probative as direct evidence in establishing the guilt of an

actor, and alone is sufficient to establish guilt. Id. Here, with the

cumulative effects of the facts presented by the State at trial, a rational

juror to have found that Appellant, intentionally or knowingly, either as

the primary actor or a party, offered, conferred, or agreed to confer a

benefit to Wooten in consideration for Wooten filing paperwork to run for

Judge; proceeding and continuing with a campaign to unseat Judge

Sandoval, the incumbent elected judge of the 380th Judicial District Court;

and/or issue favorable rulings in cases in which Appellant or his wife was

a party. See Tex. Penal Code Ann. §§ 7.01(a), 7.02(a)(2) (law of parties); see

also Hayes, 265 S.W.3d at 678, n.4 (a party may be criminally responsible under law of the parties in several ways); Patterson, 950 S.W.2d at 202 (at

the time of the offense, the parties acted together and contributed to a

common purpose); see also Trenor, 333 S.W.3d at 806 (State must show

conduct constituting an offense, plus an act by the defendant “done with

the intent to promote or assist such conduct”).

67 Furthermore, the State did not need to prove Appellant was

well-versed in election law, or knew specifically how his wife’s money was

being spent or that Spencer was acting improperly in regards to Wooten’s

campaign finances or reporting. Brief at 26-30. To require such detailed

knowledge would lead to the absurd result of the acquittal of every

financier who deliberately chose to remain ignorant of the process by which

his intended recipient executed the particular “decision, opinion,

recommendation, vote, or other exercise of discretion” desired by the

financier. Here, based upon the evidence described above, a rational trier

of fact could have reasonably found the State proved beyond a reasonable

doubt Appellant’s guilt of six counts of bribery.

E. The evidence sufficiently supports Appellant’s Appellant’s convictions for bribery as charged under § 36.02(a)(1), (2).

Appellant argues that, because the State’s evidence showed that the

monies paid by Appellant’s wife under his direction were functionally

campaign contributions, the evidence is necessarily insufficient to support

his convictions for bribery as he was charged. Brief at 19-23. But based

on the evidence presented at trial, a rational trier of fact could have

reasonably found that Appellant did not specifically direct the money to be

used to fund Wooten’s campaign. Indeed, as this Court has already

determined on a materially identical record, see Cary v. State, 2014 WL

68 4261233 at *33-34,18 a rational trier of fact, instead, could have reasonably

found that Appellant intended the money-without regard for specific

execution-be used to obtain, by any means necessary, (1) a person 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.

Where a criminal statute expressly includes a provision beginning

with, “It is an exception to the application of,” the State “must negate the

existence of [that] exception in the accusation charging commission of the

offense and prove beyond a reasonable doubt that the defendant or

defendant’s conduct does not fall within the exception.” Tex. Penal Code

Ann. § 2.02(a), (b) (Vernon 2013). Here, the offense of bribery has one

statutory exception:

(3) of Subdivision (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.

Tex. Penal Code Ann. § 36.02(d). Also, as relevant to the instant case,

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[.] 18 In an abundance of caution, the State again notes that this opinion was unpublished.

69 (5) “Political contribution” means a campaign contribution[.]

(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.

Tex. Elec. Code § 251.001 (West 2008).

In the instant case, both parties agree that two of the three

requirements set out in §§ 2.02(a) and 36.02(d) of the Penal Code were met:

sufficient language in the indictment negated the § 36.02(d) exception, and

the benefits conferred were not lobbyist expenditures. See 1 CR 159-64

(indictment alleging Counts II through VII: “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”);

see also Appellant’s Brief at 19-23 (Appellant’s complaint solely related to “political contribution”).

But under Appellant’s theory regarding the remaining portion of the

statutory exception, § 36.02(d) would indicate that a political contribution

is not an illegal benefit to offer, confer, or agree to confer upon a public

servant, party official, voter, or an authority figure in a judicial or

administrative proceeding, in exchange for that individual’s action in

his/her official capacity. See § 36.02(a)(1), (2), and (3). Rather, a political

contribution offered, conferred, or in agreement to be conferred to such

70 individuals described above would comprise an illegal action only if there

exists:

• 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 political contribution, and

• direct evidence of the express agreement.

§ 36.02(a)(4). Simply stated, as long as no such evidence of express

agreement exists, no crime has been committed.

But such an absurd result could not have been intended by the

legislature. The commentary accompanying the 1975 amendment which

established the foundation for § 36.02 notes:

“This section was completely rewritten based upon Model P.C. Sec. 240.1. The term ‘with intent to influence’ was completely omitted, and the term ‘as consideration for’ was used to emphasize the bargaining aspect of bribery. This concept includes both express and implied or tacit agreements. Any benefit will suffice to convict for bribery, if it is consideration for the recipient’s exercise of official discretion in a judicial or administrative proceeding . . . (Emphasis supplied.).

McCallum, 686 S.W.3d at 134 (quoting BRANCH’S ANN. P.C., 3RD ED., VOL. III, § 36.02). As further noted by the McCallum Court, the

amendment served to prevent the criminalization of “situations where gifts

are given in mere hope of influence, without any agreement by the donee.”

Id. at 135 (quoting A.L.I. MODEL PENAL CODE, REPRINT-PROPOSED OFFICIAL DRAFT, § 240.1 at 197 (May 4, 1962)). As discussed above, the

71 evidence shows that the actions of Appellant and his wife were not

motivated by a “mere hope of influence.”

Regardless, Appellant ignores the evidence and reasonable inferences

from the evidence, from which a rational trier of fact could have found that

the State negated the § 36.02(d) exception beyond a reasonable doubt.

While State-Appellee could not locate any controlling authority on

negating the exception to bribery as alleged in this case, guidance can be

found in McElroy v. State, 720 S.W.2d 490 (Tex. Crim. App. 1986), in

which the Court of Criminal Appeals affirmed this Court’s decision

regarding sufficiency of the evidence to negate an exception to a different

offense19 –“a trust type statute enacted to regulate a specific type of

conduct on the part of contractors and subcontractors[.]” Id. at 491 (referring to former Tex. Ann. Civ. Stat. Art. 5472e). In affirming this

Court’s holding that the State failed to properly negate the exception to the

charged offense, the McElroy Court provided the following explanation:

The reason that we find the evidence is insufficient to establish that the State did not prove that [McElroy] did not [meet the statutory exception of] us[ing] the allegedly misapplied trust funds for reasonable overhead expenses is because it did not trace the application of three checks payable 19 One of the issues presented in McElroy which is absent in this case is whether a statutory exception was provided within former Article 5742e of the Civil Statutes; since the Court of Criminal Appeals upheld this Court’s finding of a statutory exception and analyzed the sufficiency of the evidence under such finding, the same underlying principles in McElroy should apply in the instant case. Id. at 492-93.

72 to the telephone company, an apartment complex, and a liquor store, which could have easily shown that they either did or did not have anything to do with reasonable overhead expenses. In sum, the State did not show that the proceeds from the checks were not used for what the law permits the funds to be used, reasonable overhead expenses. The evidence is thus insufficient to establish that [McElroy] did not use the trust funds that he allegedly misapplied for reasonable overhead expenses, which the law permitted him to use the trust funds for.

McElroy, 720 S.W.2d at 495 (emphasis added). Appellant points out that the definition of “contributions” specifically

includes direct or indirect transfers, and argues the State proved such

transfers occurred between Appellant and Wooten. Brief at 20. But both

direct and indirect transfers inherently encompass a traceable source of

the transfer of value. In this case, the evidence demonstrates Appellant

deliberately engaged several deceptive tactics to prevent the funds from

being traced to him:

1. All payments were made from Appellant’s wife’s accounts.

2. All payments were made to and accepted by Spencer.

3. Spencer testified at length that the payments made by Appellant’s wife were for services he rendered pursuant to a contract, back-dated to October 1, 2007, and engaging him until December 2009.

4. Spencer testified that he did his best to keep his Stacy Cary business separate from Wooten’s campaign business.

73 5. Spencer testified that Wooten did not know the Carys, and sub-contracted-campaign consultant Clements stated he had not heard mention of the Carys.

6. No acknowledgment of the Carys as donors or lenders was ever made in Wooten’s campaign finance or personal finance reports.

7. The payments issued by the Carys were in gross excess of $2,500.00, the legal political contribution limit for an individual towards a judicial campaign within Collin County. 6 RR 37.

Applying McElroy, the State’s precise tracing of the funds demonstrated

that Appellant clearly removed himself from being a publicly identifiable

source of funding-either direct or indirect-for Wooten’s campaign.

Furthermore, Appellant’s assertion that Spencer worked for Wooten

under a “turnkey” arrangement-when read in conjunction with Appellant’s

argument that the payments to Wooten were political contributions-would

allow an individual to make unlimited “campaign contributions” to a

“consultant” employed under the same “turnkey” arrangement described

by Spencer. Such an outcome defeats the purpose of the

statutorily-imposed limits placed upon individual political contributions.

Lastly, as the Court in the Stacy Cary appeal held, the jury could

have reasonably inferred that Appellant had no specific intent for the

payments issued by his wife were to be used exclusively “in connection

with a campaign for elective office or on a measure,” as the definition of

74 “campaign contribution” requires. Jay Valentine, Appellant’s former

colleague at TDI, testified that he had heard “several times” that “Spencer

was hired to fix [Appellant]’s divorce case,” and that Spencer “said he

owned [Wooten] several times, and that she was going to help in their

endeavor for making some changes,” namely reversing “some adverse

rulings” in Appellant’s divorce and child-custody proceedings. 8 RR 173,

158-59. Additionally, Wooten’s campaign reports reflect she reported

$102,000.00 in expenditures, but Spencer paid $118,000.00 on campaign

expenditures. 7 RR 156. The jury thus could have inferred that Appellant’s

description of Spencer as a “fixer,” coupled with the discrepancy of between

$32,000.00 and $48,000.00 between Spencer’s invoices and Wooten’s

reports, demonstrate that Appellant had no specific intent that every

payment made by his wife be used specifically in connection with the

campaign.

When viewed in the light most favorable to the verdict, the evidence

and the reasonable inferences from the evidence of the great lengths taken

by Appellant to make any payments untraceable to him, coupled with the

lack of transparency within Wooten’s campaign, could allow a rational trier

of fact to have found beyond a reasonable doubt that the State negated the

exception that such payments were political contributions. Jackson, 443

U.S. at 319; Gear, 340 S.W.3d at 746. Thus, Appellant’s complaint of

insufficient evidence alleged on this ground should be denied.

75 F. The evidence is sufficient sufficient to establish that a “public servant” servant” was bribed by Appellant in exchange for the public servant’s exercise of discretion, and thus sufficient to sustain Appellant’s convictions for bribery.

Appellant argues that Wooten, the intended recipient of Appellant’s

bribes, was not a “public servant” when she made the decision to run for

judicial office. Brief at 23-24. Appellant also argues that there is no

evidence to support a finding that Wooten was considering a decision to

withdraw from the judicial race. Brief at 25-26. But Appellant’s

misconstruction of the record fails to demonstrate Appellant’s conviction

is not supported by the evidence presented at trial.

As relevant to Appellant’s point of error, in Counts Two through

Seven of the Superceding Indictment charging Appellant with bribery;

Wooten is alleged to have received or was offered benefits from Appellant

as consideration for her “decision, opinion, recommendation, vote, and

other exercise of discretion as a public servant, . . . to wit: filing paperwork

to run for Judge, [and] proceeding and continuing with a campaign to

unseat the incumbent elected Judge of the 380th Judicial District

Court[.]”20 1 CR 159-64.

20 See Gahl v. State, 721 S.W.2d 888, 893-96 (Tex. App.–Dallas 1986) (“the phrase ‘decision, recommendation and exercise of discretion” are simply different manners and means of committing the offense of bribery”), citing Bates v. State, 587 S.W.2d 121, 129 (Tex. Crim. App. 1979) (“intentionally and knowingly solicit, accept, and agree to accept . . . a pecuniary benefit” is an allegation of several means of committing the offense of bribery).

76 Included in the statutory definition of “public servant” is a “candidate

for nomination or election to public office,” and the provision that a person

may be a public servant “even if [she] has not yet qualified for office or

assumed [her] duties.” Tex. Penal Code § 1.07(4)(E). “Candidate” is further

defined within the Election Code as “a person who knowingly and willingly

takes affirmative action for the purpose of gaining nomination or election

to public office,” including filing an application for a place on a ballot or

filing a campaign treasurer appointment. § 251.001(1)(B), (A). Thus,

Wooten’s action in filing paperwork to run for office squarely falls within

the statutory definition of “candidate” and “affirmative action” taken by

candidates, and is thus an “exercise of discretion as a public servant.”

Additionally, Appellant mischaracterizes Wooten’s actions as a

“decision” made as a public servant. A variation of Appellant’s argument

has already been rejected by the Ninth Court, where the appellant in that

case alleged, “the state has utterly blurred the distinction between making

decisions as a public servant and deciding to be a public servant.” Kaisner

v. State, 772 S.W.2d 528, 529 (Tex. App.–Beaumont 1989, pet. ref’d.) (quoting appellant Kaisner’s brief) (emphasis in original). In rejecting this

claim, the Ninth Court of Appeals found that Kaisner’s opponent’s

“decision to withdraw from the runoff would have been the exercise of

discretion as a public servant.” Id. The Court of Criminal Appeals also

implicitly rejected this argument when it refused Kaisner’s petition for

77 discretionary review. See Kaisner v. State, 780 S.W.2d 226, 227-28 (Tex.

Crim. App. 1989) (Miller, J., dissenting, supporting Kaisner’s argument).

Likewise-and because Wooten’s actions fall within the statutory definition

of affirmative action taken by a candidate-this Court should reject

Appellant’s argument that Wooten, as a private citizen, “decided” to run

for the 380th Judicial District Court bench.

Appellant also complains the State failed to prove that Wooten ever

considered withdrawing from the race. Brief at 25-26. But Appellant cites

no authority in support of his argument that the State must prove the

converse of its allegations that Appellant was charged with bribing for

Wooten to “proceed[ ]and continu[e ]” with her campaign. Additionally,

where the Kaisner courts considered the opponent’s decision to withdraw

as an exercise of discretion of a public servant, the implicit converse must

also be true-that, as in this case, a candidate’s decision to stay or “proceed[

]and continu[e]” in the race is an exercise of discretion of a public servant.

Because Appellant’s arguments present no merit, this Court should

overrule Appellant’s challenge to the sufficiency of the evidence on these

grounds.

II. STATE’S REPLY TO APPELLANT’S POINT OF ERROR THREE

A. Applicable law to establish money laundering

Under section 34.02(a)(4) of the Penal Code (Vernon 2008), a person

commits money laundering if he finances or invests or intends to finance

78 or invest funds that the person believes are intended to further the

commission of criminal activity. “Criminal activity” is defined within the

Penal Code as “any offense, including any preparatory offense, that is

classified as a felony under the laws of this state.” Id. at § 34.01(1)(A).

Knowledge of the specific nature of the criminal activity giving rise to the

proceeds is not required to establish a culpable mental state under this

section. Id. at § 34.02(1). As related to Appellant, “criminal activity” is the

offense of bribery, defined in Part I(B), supra. 1 CR 164 (Superceding

Indictment: Count Eight). The jury was instructed that Appellant may be

found criminally responsible for money laundering, either as a principal

actor or under the law of parties. 2 CR 649; see Part I(C).

B. The evidence was sufficient to support Appellant’s conviction for money laundering.

Appellant argues that the evidence was insufficient to sustain his

conviction for money laundering because there was insufficient evidence

of the only predicate offense alleged, i.e., bribery. Brief at 36-37; see 1 CR

164. Since this is Appellant’s only point of error with respect to his

conviction for money laundering, the State incorporates all arguments

urged in Part I, and asserts the evidence thus demonstrates that a rational

trier of fact could have found Appellant guilty of money laundering beyond

79 III. STATE’S REPLY TO APPELLANT’S POINT OF ERROR TWO

Appellant claims that there is insufficient evidence to sustain his

conviction for engaging in organized criminal activity (“EOCA”). Brief at

31-36.

A. Standard of review for a challenge to the sufficiency sufficiency of the evidence. evidence

Again, on review, all evidence and any reasonable inferences from the

evidence is viewed in the light most favorable to the verdict and it is

determined whether any rational trier of fact could have found the

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at

319; Gear, 340 S.W.3d at 746.

The jury is the exclusive judge of witness credibility and the weight

of the evidence. Isassi, 330 S.W.3d at 638. The jury also resolves or

reconciles conflicts in the evidence in favor of the verdict. Id.; Jackson, 443

U.S. at 326. “An appellate court determines whether the necessary

inferences are reasonable based upon the combined and cumulative force

of all the evidence when viewed in the light most favorable to the verdict.”

Ervin, 331 S.W.3d at 55. The appellate court must view both direct and circumstantial evidence equally when reviewing the record based on a

sufficiency of the evidence claim. Jackson, 443 U.S. at 326; Hooper, 214

S.W.3d at 16-17. The reviewing court does not resolve any conflict of fact,

80 rough the evidence, or evaluate the credibility of the witnesses. Garza, 841

S.W.2d at 21.

B. Applicable law to establish EOCA

Section 71.02(a) of the Penal Code (Vernon 2008) provides that a

person commits the offense of EOCA if, with the intent to establish,

maintain, or participate in a combination, he commits or conspires to

commit one or more of several enumerated offenses, including bribery,

money laundering, and tampering with a governmental record.

Additionally, § 71.01(b) defines “conspires to commit” as when “a person

agrees with one or more persons that they or one or more of them engage

in conduct that would constitute the offense and that person and one or

more of them perform an overt act in pursuance of the agreement. An

agreement constituting conspiring to commit may be inferred from the acts

of the parties.”

“Combination” is defined as “three or more persons who collaborate

in carrying on criminal activities.” Tex. Penal Code § 71.01(a). The

participants need not know each other’s identity, and the combination’s

membership may change from time to time. Id. In proving the existence

of a combination, the State need not demonstrate the participation of all

alleged members of the combination; the State need only prove the

participation of at least three of the named members of the combination,

including the defendant. See Crum v. State, 946 S.W.2d 349, 356 (Tex.

81 App.-Houston [14th Dist.] 1997, pet. ref’d). Generally, this requires more

than the intent to commit the predicate offense; the State must prove the

defendant’s intent to establish, maintain, or participate in a combination.

Hart v. State, 89 S.W.3d 61, 63 (Tex. Crim. App. 2002). Further, in order to prove the defendant’s intent to participate in a combination, the State

must prove not only that the defendant knew of the existence of the

combination, but also that the defendant knew of the criminal activity of

the group. See McGee v. State, 909 S.W.2d 516, 518 (Tex. App.-Tyler 1995,

pet. ref’d).

1. Applicable law to underlying criminal activities of bribery and money laundering. laundering

Two of the predicate offenses alleged against Appellant in the charge

of EOCA within the Superceding Indictment are bribery and money

laundering. 1 CR 157-58. Penal Code sections 36.02(a)(1), (2) and

34.02(a)(4) define bribery and money laundering, respectively, as discussed

above in Parts I(B) and II(A), supra.

2. Applicable law to underlying criminal activities of bribery and money laundering. laundering

A person commits the offense of tampering with a governmental

record if she makes, presents, or uses a governmental record with

knowledge of its falsity. Tex. Penal Code § 37.10(a)(5) (Vernon 2008). A

governmental record is defined as anything “belonging to, received by, or

kept by government for information,” or anything required by law to be 82 kept by others for information of government. Id. at § 37.01(2)(A), (B).

Additionally, a “partisan or independent candidate for an office as an

elected officer” is required to file a financial statement that contains an

account of the financial activity of the candidate, including:

(5) identification of each guarantor of a loan and identification of each person or financial institution to whom a personal note or notes or lease agreement for a total financial liability in excess of $1,000 existed at any time during the year and the category of the amount of the liability; . . .

(7) identification of a person or other organization from which the individual or the individual’s spouse or dependent children received a gift of anything of value in excess of $250 and a description of each gift, except:

(A) a gift received from an individual related to the individual at any time within the second degree by consanguinity or affinity, as determined under Subchapter B, Chapter 573; [and]

(B) a political contribution that was reported as required by Chapter 254, Election Code.

Tex. Gov’t Code §§ 572.021, 572.023(a), (b)(5), (b)(7) (Vernon 2008).

C. Suffi Sufficient cient evidence supports Appellant’s conviction for EOCA in committing or conspiring to commit bribery and/or money laundering.

Appellant argues that there is insufficient evidence to sustain his

conviction for EOCA because there is insufficient evidence that

demonstrates he committed or conspired to commit the underlying

83 criminal activities of bribery and/or money laundering. Brief at 31-32.

Appellant incorporates his arguments as stated in his Points of Errors One

and Three in support of his insufficiency claims. Id. Likewise, the State

has demonstrated in Parts I and II, supra, that sufficient evidence

supports Appellant’s commission, either as a primary actor or as a party,

of bribery and money laundering. Because a general verdict was returned,

the verdict will be upheld if the evidence is sufficient to support a finding

of guilt under any allegation. See Fuller v. State, 827 S.W.2d 919, 931

(Tex. Crim. App. 1992); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.

App. 1991); Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1982).

Accordingly, sufficient evidence supports the jury’s finding of guilt in the

charge of EOCA against Appellant for the criminal activities of bribery or

money laundering.

D. Su Sufficient fficient evidence supports Appellant’s conviction for EOCA in the commission or conspiracy to commit tampering with a governmental record. record

Appellant argues that there is insufficient evidence to support his

conviction for EOCA for committing or conspiring to commit tampering

with a government record, where the Superceding Indictment alleged

Wooten knowingly prepared and affirmed her Personal Financial

Statement with false information, and Appellant provided funding in the

furtherance of that activity. Brief at 33-36. Namely, Appellant alleges

that he had no knowledge or involvement with Wooten’s election filings, 84 including her Personal Financial Statement (Tex. Gov’t Code § 572.023),

or the statutory requirements of election filings. Brief at 26-27.

Again, because a general verdict was returned, the verdict will be

upheld if the evidence is sufficient to support a finding of guilt under any

allegation of EOCA, whether-as applied here-that be pursuit of bribery,

money laundering, or tampering with a governmental record. See Fuller,

827 S.W.2d at 931; Kitchens, 823 S.W.2d at 258; Aguirre, 732 S.W.2d at

326. Regardless, sufficient evidence supports the jury’s finding of

Appellant’s guilt of EOCA, predicated upon Wooten’s tampering with a

government record.

Although no direct evidence of Appellant’s knowledge of Wooten’s

campaign records or record filing requirements was presented,

circumstantial evidence may be used to prove the state of mind required

to support Appellant’s conviction. See Munoz v. State, 29 S.W.3d 205, 209

(Tex. App.–Amarillo 2000, no pet.). Such circumstantial evidence may also

be used to prove the existence of an agreement to work together in

continuing criminal activities. See id.; Hart, 89 S.W.3d at 64.

Looking at the evidence described above in Part I(F), supra, a

rational trier of fact could have found the cumulative effect of that

evidence was proof beyond a reasonable doubt that Appellant, with intent

to establish, maintain, or participate in a combination, conspired for

Wooten to commit tampering with a governmental record. Namely, a

85 rational juror could reasonably infer that-where Appellant’s wife provided

funds that were ultimately used to finance Wooten’s campaign; and the

phone records reflect communications occurred primarily between

Appellant and Spencer, Appellant and his wife, or Spencer and Wooten;

and Wooten’s campaign reports do not reflect monies received from or

loaned by the Carys-Appellant was committing or conspiring to commit

tampering with a governmental record, in combination with his wife and/or

Spencer, and/or Wooten.

Again, members of the combination need not know each other’s

identity. Tex. Penal Code § 71.01(a). Thus, contrary to Appellant’s

assertion, Wooten did not need to know that Appellant was directing his

wife to provide $150,000.00 to Spencer, who provided invoices to Wooten

and jointly approved campaign expenses with Wooten. However, as a

candidate, Wooten was responsible for knowing where her campaign’s

funding came from, particularly given the restrictions on the allowable

amounts of gifts and loans from individuals to a judicial campaign. See

Tex. Gov’t Code § 572.023. A rational trier of fact could have inferred from

the evidence presented at trial that Wooten deliberately chose to remain

ignorant of where her novice campaign manager obtained a six-figure sum

to pay for her campaign expenses.

In order to prove the defendant’s intent to participate in a

combination, the State must prove not only that the defendant knew of the

86 existence of the combination, but also that the defendant knew of the

criminal activity of the group. See McGee, 909 S.W.2d at 518. Although

Appellant argues he did not know the reporting requirements for judicial

candidates, his ignorance of the law is no excuse. See Tovar v. State, 978

S.W.2d 584, 588, 589 (Tex. Crim. App. 1998) (Baird, J., concurring), (Price.

J., concurring) (citation omitted). For the same reason, Appellant cannot

successfully argue that he was unaware of the statutory limits placed on

individual political contributions or loans. Accordingly, the jury could have

inferred that-given Appellant’s blatant disregard for complying with any

such restrictions-Appellant must have intended for Wooten to omit him,

his wife, and/or Spencer from her Personal Finance Statement as the bulk

of her campaign resources. See Crum, 946 S.W.2d at 356 (the State need

not demonstrate the participation of all alleged members of the

combination; the State need only prove the participation of at least three

of the named members of the combination, including the defendant); see

also Hart, 89 S.W.3d at 63 (the State must prove the defendant’s intent to establish, maintain, or participate in a combination).

Accordingly, when viewed in the light most favorable to the verdict,

sufficient evidence supports Appellant’s conviction for EOCA.

87 IV. STATE’S REPLY TO POINT OF ERROR FOUR

A. Ineffective Assistance of Counsel Standards

Both federal and State constitutions guarantee a defendant the right

to counsel. See U.S. Const. Amend. VI; Tex. Const. Art I, sec. 10; Tex.

Code Crim. Proc. Ann. art. 1.05 (West 2011). The right to counsel means

the right to effective counsel. See Strickland v. Washington, 466 U.S. 668

(1984); Ex parte Gonzalez, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).

When a defendant challenges his conviction or sentence based upon the

ineffective assistance of trial counsel, his challenge is subject to the

two-prong Strickland test: (1) whether counsel’s performance fell below an

objective standard of reasonableness; and, if so, (2) whether there is a

reasonable probability that, but for counsel’s error, the outcome would

have been different. Strickland, 466 U.S. at 669; Thomas v. State, 9

S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d

770, 770 (Tex. Crim. App. 1999). Effective assistance of counsel, however,

does not mean a right to errorless counsel, but rather to objectively

reasonable representation. See Strickland, 466 U.S. at 686; Robertson v.

State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In determining whether counsel was ineffective, we consider the totality of the

circumstances of the particular case. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999). It is the defendant’s burden to prove

ineffective assistance of counsel by a preponderance of the evidence. Id.

88 In reviewing the first prong of an ineffectiveness of counsel challenge

to a conviction, there is a strong presumption an attorney’s performance

is encapsulated within a wide range of reasonable professional assistance.

Hernandez, 988 S.W.2d at 772. Appellant must: (1) rebut this presumption that trial counsel is competent by identifying the acts and/or omissions of

counsel that are alleged as ineffective assistance; and (2) affirmatively

prove that such acts and/or omissions fell below the professional norm of

reasonableness by a preponderance of the evidence. McFarland v. State,

928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds

by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 2001). Such proof must be made on the record, affirmatively demonstrating the alleged

ineffectiveness. See McFarland, 928 S.W.2d at 500. An ineffective assistance claim with a record silent as to trial counsel’s motivations will

generally fail, as the presumption that the attorney’s conduct was

reasonable has not been overcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex.

Crim. App. 2001) (denying ineffective assistance claim where record is

silent as to why counsel did not request guilty plea withdrawn). When,

however, a motion for new trial is conducted, at which the testimony of the

trial counsel is recorded, such evidence may serve as the basis for

determining ineffectiveness of counsel. Gibbs v. State, 7 S.W.3d 175, 179

(Tex. App.–Houston [1st Dist.] 1999, pet. ref’d) (noting that, in the absence

89 of a proper evidentiary record developed at a hearing on a motion for new

trial, it is extremely difficult to show trial counsel was ineffective).

To determine Strickland prejudice during sentencing, Appellant must

show that, as a result of the purported constitutionally deficient

performance of trial counsel, the punishment assessed would have been

less severe. Hernandez, 988 S.W.2d at 772-74 (extending the test for

Strickland prejudice to non-capital sentencing); but see Mendoza v. State, 2008 WL 2403769, *4, 11 (Tex. App.–Houston [14 Dist.[, Jun 12, 2008)

(Nos. 14-06-01015-CR, 14-06-01016-CR) (citing Miller v. Dretke, 420 F.3d

356, 365 (5th Cir. 2005) (Courts determine if the sentence given was

significantly more harsh than the one that might have been given in the

absence of counsel’s deficient performance.).21 Here as elsewhere,

reasonable probability means “a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 669; Thomas v. State,

9 S.W.3d at 812.

Finally, it is not necessary to conduct the Strickland analysis in any

particular order; if an appellant cannot demonstrate sufficient prejudice,

a court may dispose of the claim on that ground. Strickland, 466 U.S. 697;

Hagens v. State, 979 S.W.2d 788, 793–94 (Tex. App.–Houston [14th Dist.]

21 Although Mendoza is an unpublished opinion–and, hence, does not bind the panel Court under principles of stare decisis–the State merely cites this case as persuasive authority.

90 1998, pet. ref’d); Gamboa v. State, 822 S.W.2d 328, 330 (Tex.

App.-Beaumont 1992, pet. ref’d).

B. Appellant was not Prejudice by Counsel’s Performance at the Punishment Phase of Trial.

Appellant claims that trial counsel, Lawson Pedigo, was ineffective

because he mistakenly failed to make a timely election of punishment by

the court. Trial counsel tried to make that election after the State rested,

but by then, it was too late without the State’s consent, and the State did

not consent. Appellant asserts that this error by trial counsel resulted in

a substantially longer sentence than his co-conspirators, Suzanne Wooten

and Stacy Cary. Brief, at 37. Appellant’s claim, however, is without merit.

On July 22, 2011, and before commencement of the voir dire

examination of the jury panel, Appellant’s previous attorney, Keith Gore,

filed an Election for Jury to Assess Punishment in Event of Conviction

pursuant to Tex. Code Crim. Pro. Art. 37.07,22 along with a motion for 22 Article 37.07 of the Texas Code of Criminal Procedure provides to every defendant a statutory right to elect the judge or the jury to assess punishment. Article 37.07 provides as follows: [I]f a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury,.... If a finding of guilty is returned, the defendant may, with the

91 community supervision. 1 CR 15, 119, 257; see MNT RR 10-11. Lawson

Pedigo was retained by Appellant in August or September 2012 to

represent him at trial. 1 CR 199; MNT RR 10. On April 24, 2013, before

the jury returned a guilty verdict, Mr. Pedigo filed an Amended Election

for Judge to Assess Punishment in Event of Conviction, along with a

follow-up brief in support of his amendment per the trial court’s request.

9 RR 119-20; MNT RR 15-17.

After the jury returned a guilty verdict and prior to the hearing on

punishment, the State objected to Appellant’s amended motion for the

judge to assess punishment as untimely and submitted that the jury must

set the punishment. 10 RR 5-10. The trial court denied Appellant’s

amended motion citing Tex. Code Crim. Proc. Ann. art. 37.07, section 2(b),

and the court’s understanding that since the prosecutor refused to consent

to the amendment which is necessary for the change, Appellant’s original

election filed before commencement of the voir dire examination of the jury

panel must stand. 10 RR 10-11.

At the hearing on Appellant’s motion for new trial, Appellant argued

that Mr. Pedigo was ineffective for failing to realize that he had to file an

amended punishment election before voir dire in order to make sure that

his client could be sentenced by the judge which resulted in the jury

consent of the attorney for the state, change his election of one who assesses the punishment. Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (West 2010).

92 assessing a substantially longer sentence than his co-conspirators,

Suzanne Wooten and Stacy Cary. 2 CR 757; MNT RR 5-21. The

overwhelming amount of testimony at the motion for new trial dealt with

Mr. Pedigo’s argument that he failed to “appreciate” or “realize” the

significance of the finality of the election. He thought he would have the

ability to go before the judge for sentencing as did the two co-defendants,

Wooten and Stacy. MNT RR 13-15. Mr. Pedigo acknowledged he made a

mistake with the election and should have discussed it with the defendant,

and amended it prior to voir dire. Id. at 20-21. Pedigo believed that if he

had gone before the trial judge for sentencing, Appellant would have

received probation, as with his co-conspirators, rather than the fourteen

year sentence. Id. at 20-21. In support of his claim, Appellant cites to

Suzanne Wooten and Stacy Cary’s sentences. Brief at 38. On November 28,

2011, Wooten received an agreed sentence of probation from the State. 2

CR 796-807. On October 11, 2012, Appellant’s wife Stacy, received a

sentence of probation plus thirty days in jail from a trial judge. 2 CR

1004-1005.

In spite of his obvious propensity for falling on his sword at every

available opportunity, Mr. Pedigo cannot be held ineffective for failing to

timely file an amended election. Appellant argues that the sentences

received by Wooten and Stacy Cary for their participation in the offenses

were relevant to Appellant’s sentencing. See Brief at 39-40. Appellant,

93 however, is mistaken. In Joubert v. State, the Texas Court of Criminal

Appeals considered whether the trial court erred by excluding, at the

punishment phase, evidence that the appellant’s co-defendant received a

thirty-year sentence as part of a plea bargain. 235 S.W.3d 729, 734 (Tex.

Crim. App. 2007). The Court concluded that “[a] co-defendant’s conviction

and punishment have no bearing on a defendant’s own personal moral

culpability.” Id. (citing Morris v. State, 940 S.W.2d 610, 613 (Tex. Crim.

App. 1996) (“[E]vidence of a co-defendant’s conviction and punishment is

not included among the mitigating circumstances which a defendant has

a right to present.”)); see Evans v. State, 656 S.W.2d 65, 67 (Tex. Crim.

App. 1983) (“We do not see how the conviction and punishment of a

co-defendant could mitigate appellant’s culpability in the crime. Each

defendant should be judged by his own conduct and participation and by

his own circumstances.”). The Court stated that “such punishments

‘relate[ ] neither to appellant’s character, nor to his record, nor to the

circumstances of the offense.”’ Joubert, 235 S.W.3d at 735 (quoting Morris,

940 S.W.2d at 613); see Walker v. State, 530 S.W.2d 572, 573 (Tex. Crim.

App. 1975) (holding that “upon the trial of one charged with crime it is not

permissible to show that another jointly or separately indicted for the same

offense has been convicted or acquitted.”); see also Eichelberger v. State,

232 S.W.3d 225, 227 (Tex. App.-Fort Worth 2007, pet. ref’d) (“[O]nly a

defendant’s own circumstances are relevant in determining an appropriate

94 punishment for that defendant.”); Torres v. State, 92 S.W.3d 911, 918 (Tex.

App.–Houston [14th Dist.] 2002, pet. ref’d) (“The disposition of a co-

defendant’s case is generally not admissible in the trial of another co-

defendant.”); Montoya v. State, 65 S.W.3d 111, 114–15 (Tex. App.–Amarillo

2000, no pet.) (“Generally, the disposition of a case against a co-defendant

is inadmissible at trial against another co-defendant.”); Beasley v. State,

838 S.W.2d 695, 703 (Tex. App.–Dallas 1992, pet. ref’d) (“Ordinarily, the

disposition of a case against co-defendants never becomes admissible in the

trial of another co-defendant.”). In light of this authority, even if Appellant

had been sentenced by the judge, evidence of Wooten’s and Stacy’s

sentences would have been inadmissible. Id. Thus, Appellant cannot

prove prejudice. Strickland, 466 U.S. at 689. Because the record contains

no other evidence of how Appellant would have benefitted from the timely

election, Appellant fails to meet his burden to show that trial counsel was

ineffective. See Ex parte Martinez, 330 S.W.3d at 901.

Moreover, in the non-capital context, the sentencing process consists

of weighing mitigating and aggravating factors, and making adjustments

in the severity of the sentence consistent with this calculus. Milburn v.

State, 15 S.W.3d 267, 270 (Tex. App.–Houston [14th Dist.] 2000) (citing Vela v. Estelle, 708 F.2d 954, 965 (5th Cir. 1983)). But unlike the appellant in Milburn, Appellant is not presently claiming that trial counsel failed to

present evidence of mitigating factors for the jury to balance against the

95 aggravating factors presented by the State. Rather, Appellant’s only

contention in support of prejudice assertion is that the trial court would

have sentenced Appellant to less than fourteen years, on precisely the

same evidence.

The preceding point bears repeating, Appellant is attempting to

establish Strickand prejudice resulting from trial counsel’s purported

deficiency, for a non-capital sentencing regime that possess non-

determinate, unconstrained sentencing discretion. But Appellant’s only

contention in support of his claim, is his rank speculation that the trial

judge may have sentenced Appellant to less than fourteen years, in a non-

determinate sentencing range of five years to life.

Turning to the relevant aggravating factors considered by the jury,

the aggravating evidence showed that Eric Roberson’s testimony clearly

supported the fourteen-year sentence. 10 RR 15-30. Despite Appellant’s

total silence as to any aggravating factors admitted at punishment, see

Brief at 37-40, a particularly aggravating factor was Mr. Roberson’s

testimony where upon meeting with David Cary in January 2008,

Appellant said to Roberson that, “he could make certain that [Cary’s]

organization provided no less that fifty [50] thousand dollars to

[Roberson’s] campaign if in exchange [Roberson] would agree, once

[Roberson] was a member of Congress, that [Roberson] would sponsor the

96 bill that they wanted.” 10 RR 24 (emphasis added).23 Roberson testified

that, in running for Congress, he knew “. . . you cannot accept a campaign

contribution in exchange for a promise to do a specific official act or an

exchange to refrain from doing a specific official act. Id. at 25 (emphasis

added). This evidence alone–that Appellant attempted to bribe a candidate

for Congress–which was unique to Appellant’s trial, means that he can

never establish a sufficient similarity between his trial and the others to

prove prejudice.

Lastly, the State observes that Cary’s fourteen year sentence for the

Engaging in Organized Criminal Activity fell far short of the maximum of

life, indicating that the jury afforded him a considerable measure of

clemency. See 2 CR 659; 2 CR 666-75. Applying Hernandez here, Cary

cannot meet his burden of proof and is unable to show that his sentence

would have been significantly less harsh than the one that might have

been given in the absence of counsel’s alleged deficient performance.

23 During their meeting, Appellant told Roberson he believed that the way family law in Texas was written, “it was impossible for men to win in a divorce type hearing.” 10 RR 24. Appellant wanted Roberson to sign “a bill that would redefine certain family law terms so that men and women would be equalized in divorce cases and so we wouldn’t have this societal ability for women to have an incentive to file for divorce.” Id. at 24-25.

97 V. STATE’S REPLY TO POINTS OF ERRORS FIVE AND SIX

A. Appellant Waived Challenges to the Constitutionality of Texas Penal Code Section 36.02.

Appellant claims the Texas bribery statute Section 36.02(a)(1),(4) is

unconstitutional as applied for impermissibly burdening his first

amendment right to exercise political speech, and is unconstitutional on its

face for vagueness and overbreadth. Brief at 41-47. Appellant, however,

failed to preserve this issue for appeal.

A. Forfeiture of Complaint

To preserve error for appellate review, the record must show that a

defendant raised his complaint by a timely and specific objection. See Tex

. R. App. Proc. 33.1(a)(1)(A); Haley v. State, 1 73 S.W.3d 510, 516 (Tex.

Crim. App. 2005). Without proper preservation, even constitutional error

may be waived. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App.

2000); Draughon v. State, 831 S.W.2d 331, 336 (Tex. Crim. App. 1992).

The only complaints that are exempt from the requirements of rule 33.1

are those involving systematic or absolute requirements, or rights that are

waiveable only. See Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App.

2004); Marin v. State, 851 S.W.2d 275, 279-280 (Tex. Crim. App. 1993). All

other complaints, whether constitutional or statutory, are forfeited by the

failure to comply with rule 33.1. See Neal, 150 S. W.3d at 175.

98 The Court of Criminal Appeals recently held that a defendant may

not raise for the first time on appeal a facial challenge to the

constitutionality of a statute. See Karenev v. State, 261 S.W.3d 428, 434

(Tex. Crim. App. 2009) (a facial challenge to the constitutionality of statute

falls within the category of rights that can be forfeited). In so holding, the

CCA explained that statutes are presumed to be constitutional until it is

determined otherwise and “[t]he State and the trial court should not be

required to anticipate that a statute may later be held to be

unconstitutional.” Id. Here, Appellant filed a Motion to Quash

Superseding Indictment for Failure to Provide Sufficient Notice of Crimes

Charged. 1 CR 206-19. Appellant’s motion only challenged deficiencies in

the indictment, not a constitutional facial challenge to the bribery statute

itself. Id. This holding, which intermediate courts are bound to apply,

prevents the Court from considering Appellant’s fifth and sixth claims.

Accordingly, because Appellant did not present a challenge to the facial

constitutionality of Texas Penal Code Section 36.02(a)(1),(4) in the trial

court, he may not do so now on appeal, and has thus waived these claims.

See Tex. R. App. P. 33.1(a)(1)(A); Karenev, 281 S.W.3d at 434; see also Holmes v. State, 380 S.W.3d 307, 308-309 (Tex. App.—Fort Worth 2012, pet. ref’d) (constitutionality of a statute as applied to the defendant must

be raised in the trial court to preserve error). Even if preserved, however,

99 this court should reject appellant’s arguments that the bribery statute is

unconstitutional.

B. Standard of Review for Claim Five

Where First Amendment freedoms are implicated, the law must be

sufficiently definite to avoid chilling protected expression. Long v. State,

931 S.W.2d 285, 287 (Tex. Crim. App. 1996) (citing Grayned v. Rockford,

408 U.S. 104 (1972)). When the constitutionality of a statute is at issue,

we presume the statute is valid and that the legislature did not act

unreasonably or arbitrarily in enacting the statute. Weyandt v. State, 35

S.W.3d 144, 155 (Tex. App.–Houston [14th Dist.] 2000, no pet.). The

burden rests on the moving party to establish its unconstitutionality. Id..

Furthermore, courts will uphold the statute if a reasonable construction of

it can be determined which will render it constitutional and carry out the

legislative intent. Weyandt, 35 S.W.3d at 155.

C. The Benefit Given by Appellant to Ms. Wooten Did Not Constitute Protected First Amendment Speech. Speech

In his fifth issue, Appellant claims that Section 36.02 violates the

United States Constitution by infringing upon his right to free speech.

According to Appellant, Cary’s conduct of “providing indirect financing to

Wooten’s judicial campaign” and “criminalizing such conduct as a bribe

without any evidence of a quid pro quo agreement impermissibly restricts

Appellant’s right to exercise political speech in violation of the First

100 Amendment.” Brief at 41. Appellant, however, is estopped from raising

this claim. The CCA has recognized that a party may be estopped from

asserting a claim that is inconsistent with that party’s prior conduct. See

Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003) (discussing State v. Yount, 853 S.W.2d 6, (Tex. Crim. App. 1993) and Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App.1 999)). In the instant case, Appellant argued in his Motion to Quash Superseding Indictment that any monies

paid from Stacy Cary to Judge Wooten were not “campaign contributions,”

and most importantly, Appellant had no connection to these payments to

Wooten as they were connected to Stacy Cary. See e.g., 1 CR 203-18; 9 RR

61-62. Moreover, the position Appellant now takes on appeal, that monies

paid to Wooten are now campaign contributions from David Cary, Brief at

41-47, is contrary to his defense at trial. Appellant, however, cannot have

it both ways. In light of the trial record, Appellant should be estopped

from now asserting on appeal that monies paid to Wooten by Spencer are

“campaign contributions.” See Arroyo, 117 S.W. 3d at 798 (explaining that

party may be estopped from asserting claim that is inconsistent with his

prior conduct); see also Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim.

App. 2003) (defendant was estopped from raising issue on appeal that trial

court’s discharge of juror was inappropriate where defendant himself

proposed discharge as alternative to mistrial) Davidson v. State, 737

S.W.2d 942, 948 (Tex. App.-Amarillo 1987, pet. ref’d) (stating that

101 defendant could not argue that evidence was insufficient to show cause of

death after admitting victim’s cause of death).

Regardless, Appellant is incorrect because Texas courts have already

found that, “[b]ribery and extortion, while involving ‘speech,’ are not

protected by the First Amendment.” Sanchez v. State, 995 S.W.2d 677, 688

(Tex. Crim. App. 1999).

First, the Supreme Court has not revisited the constitutionality of

individual campaign contribution limitations since it upheld those

limitations in Buckley v. Valeo, 424 U.S. 1 (1976). As support for his

argument, Appellant cites to McCutcheon v. Fed. Election Comm’n, 134

S.Ct. 1434, 1442 (2014), where the Court held that “aggregate limits,”

which “restrict[ ] how much money a donor may contribute in total to all

candidates or committees” in a given election cycle violated the First

Amendment. Id. McCutcheon, however, did “not involve any challenge to

the base limits” and “restrict how much money a donor may contribute to

any particular candidate or committee” and which Buckley “previously

upheld as serving the permissible objective of combating corruption.” Id.

The Supreme Court has made clear that only certain contribution limits

comport with the First Amendment. Since contributing money is a form

of speech, preventing quid pro quo corruption or its appearance is the only

governmental interest strong enough to justify restrictions on political

speech. Citizens United v. FEC, 558 U.S. 310, 357–61 (2010). In

102 McCutcheon, the Court concluded that “the possibility that an individual who spends large sums may garner influence over or access to elected

officials or political parties ... does not give rise to such quid pro quo

corruption.” 134 S.Ct. at 1438. In effect, it is only direct bribery, that has

been violated in this case—not influence—that the Court views as crossing

the line into quid pro quo corruption. See Part I, supra. Thus, McCutcheon

is inapplicable to this instant case.

Essentially, Appellant complains that under the State’s theory of the

case, Cary’s monies given to Spencer for Wooten were “campaign

contributions” and therefore acts protected by the First Amendment. Brief

at 41-43. But, the State pursued prosecution regarding the Appellant’s

benefits–namely monetary exchanges–which were explicitly alleged within

the indictment not to be campaign contributions.24 See 1 CR 156-65. The

payments do not meet the definition of legal campaign contributions.

Accordingly, Appellant fails to present a meritorious claim for relief.

Moreover, to the extent Appellant argues that the payments to

Spencer were campaign contributions, thus invoking § 36.02(a)(4) of the

Texas Penal Code, his argument still fails. First, under the Penal Code,

“[i]t 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 24 The State does not concede that Cary’s payments were campaign contributions, but will proceed to show that the claims that they are would not allow Appellant relief.

103 15, Election Code.” § 36.02(d). Evidence presented to the jury that the

payments made to Spencer for the benefit of Suzanne Wooten were (a) not

reported on Suzanne Wooten’s campaign finance reports in any form; (b)

not reported as a loan on Wooten’s personal financial statements, and (c)

were over the limit of an allowable contribution to a judge. Tex. Elec. Code

§§ 254.031, 253.155(b). Since the evidence demonstrated that the payments

made by David Cary do not meet the criteria for a proper legal

contribution, Appellant’s conduct is not encompassed within § 36.02(a)(4).

The Legislature has charged Courts with reading statutes to give “a

just and reasonable result,” and that the statute be interpreted in

“compliance with the constitutions of the state and the United States.”

Tex. Gov’t Code § 311.021(3), (1). And that “(t)he rule that a penal statute

is to be strictly construed does not apply to this code. The provisions of

this code shall be construed according to the fair import of their terms, to

promote justice and effect the objectives of the code.” Tex. Penal Code

§1.05(a).

The Court of Criminal Appeals has stated that a court should

ordinarily interpret a criminal statute according to the text because that

shows the Legislature’s and Governor’s intent. Boykin v. State, 818

S.W.2d 782,785 (Tex. Crim. App. 1991). The Court recognized that this

form of statutory interpretation should not be followed “where application

of a statute’s plain language would lead to absurd consequences that the

104 Legislature could not possibly have intended.” Id. (italics in original); see

Moore v. Avoyelles Corr. Ctr., 253 F.3d 870, 872 (5th Cir. 2001) (Legislative intent determined by looking at the plain language of the

statute and if the intent is apparent on the face of the statute no further

inquiry is needed.). “When used in the proper manner, this narrow

exception to the plain meaning rule does not intrude on the lawmaking

powers of the legislative branch, but rather demonstrates respect for that

branch, which we assume would not act in and absurd way.” Boykin, 818

S.W.2d at 785.

In interpreting the bribery statutes, the Legislature’s intent is clear.

The preamble to the Senate Bill 1, 72nd Legislature, Regular Session,

199125 shows how this law is to be interpreted:

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF

TEXAS:

ARTICLE 1

SECTION 1.01. PURPOSE. It is the policy of the Legislature of the

State of Texas to protect the constitutional privilege of free suffrage by

regulating elections and prohibiting undue influence, while also protecting

the constitutional right of the governed to apply to their government for

25 S.B. No. I modified the existing bribery statutes creating § 36.02(a)(4) along with the Ethics Commission and strengthened reporting requirements for certain elected officials and appointees. See 2 CR 469-89.

105 the redress of grievances. To these ends, the provisions of this Act are

intended, and shall be construed, to achieve the following objectives:

1) to control and reduce the cost of elections;

(2) to eliminate opportunities for undue influence over elections and government action;

(3) to fully disclose information related to expenditures and contributions for elections and for petitioning the government;

(4) to enhance the potential for individual participation in electoral and governmental processes; and

(5) to ensure the public’s confidence and trust in its government.

S.B. No. 1 72nd Regular Session, Texas Legislature.

Appellant is asking this court to grant him First Amendment rights

that do not exist. Appellant claims that Stacy Cary’s payments, at the

direction of Appellant, have some Constitutional protection, yet provides

no valid legal arguments or case law support. In fact, the United States

Supreme Court has consistently upheld laws regulating the amount of

campaign donations, finding that these laws do pass First Amendment

muster. See Federal Elections Commission v. Beaumont, 539 U.S. 146,

161 (2003); McConnell v. Federal Elections Commission, 540 U.S. 93, 138

(2003). In McConnell, the Court stated,

106 Our treatment of contribution restrictions reflects more than the limited burdens they impose on First Amendment freedoms. It also reflects the importance of the interests that underlie contribution limits-interests in preventing both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.

McConnell, at 136, at 656. See also Buckley v. Valeo, 424 U.S. at 27. The Supreme Court has also upheld that requirements of disclosure of

campaign contributions do not violate the First Amendment. Citizens

United v. Federal Election Commission, 130 S.Ct. 876, 913-914 (2010). Appellant asks the court to read the entirety of § 36.02 in an

unreasonable and unprecedented manner. What Appellant suggests the

court do is to read into the bribery statute First Amendment protection to

a person–who, in league with his accomplices, has gone out of his way to

violate numerous campaign finance laws regarding contribution limits and

reporting requirements.

To require the State to prosecute a person who gives a politician

money under § 36.02(a)(4), after every effort has been made to conceal the

source and destination of the money by (1) making the payment to a third

party, (2) failing to ever deposit the money into the judicial candidate’s

account, and (3) failing to report this money in any public document is an

outcome contrary to legislative intent, precedent and the facts, and is

absurd.

107 Logically, bribery as defined under § 36.04(a)(4) is found only when

the contribution is made in a manner that is open to public scrutiny.

Politicians cannot be prosecuted for bribery for a legal and properly

reported campaign contribution unless there is direct evidence of the quid

pro quo. But as we have here, with all the monies hidden, there is no basis in law or logic reason to grant relief on this claim.

D. Standard of Review for Claim Six

The burden rests upon the person who challenges a statute to

establish its unconstitutionality. Kfouri v. State, 312 S.W.3d 89, 92 (Tex.

App.-Houston [14th Dist.] 2010, no pet.). In determining whether a law is

vague and overbroad, the elementary principle of statutory construction

requires us to interpret a statute in accordance with the plain meaning of

its language unless the language is ambiguous or the plain meaning leads

to absurd results. Sanchez, 995 S.W.2d at 683; Duncantell v. State, 230

S.W.3d 835, 842-43 (Tex. App.–Houston [14th Dist.] 2007, pet. ref’d). In

determining a statute’s plain language, words and phrases shall be read

in context and construed according to the rules of grammar and usage.

Sanchez, at 683; Duncantell, at 843. Courts begin the review of the constitutionality of a statute with the presumption that the statute is valid

and that the legislature did not act arbitrarily and unreasonably in

enacting the statute. Duncantell, 230 S.W.3d at 843. Courts must uphold

a statute if it can determine a reasonable construction that will render it

108 constitutional. Id. When an appellant challenges a statute as both

unconstitutionally overbroad and vague, courts address the overbreadth

challenge first. Id.

“A facial challenge to a legislative act is, of course, the most difficult

challenge to mount successfully, since the challenger must establish that

no set of circumstances exists under which the act would be valid.” Briggs

v. State, 789 S.W.2d 918, 923 (Tex. Crim. App. 1990); State v. Garcia, 823 S.W.2d 793, 796–97 (Tex. App.-San Antonio 1992, pet. ref’d). In a facial

challenge to the overbreadth and vagueness of a law, a court’s first task is

to determine whether the enactment reaches a substantial amount of

constitutionally protected conduct. Garcia, 823 S.W.2d at 797 (citing

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95 (1982)). If it does not, then the overbreadth challenge must

fail. Id. The court should then examine the facial vagueness challenge

and, assuming the enactment implicates no constitutionally protected

conduct, should uphold the challenge only if the enactment is

impermissibly vague in all of its applications. Id.

Here, Appellant alleges that he Texas Bribery Statute is

unconstitutional on its face for vagueness and overbreadth. Brief at 44-47.

For the following reasons, Appellants’ arguments fail.

109 E. Section 36.02 is Not Unconstitutionally Overbroad. Overbroad

A statute is impermissibly overbroad if, in addition to proscribing

activities that may be constitutionally prohibited, it sweeps within its

coverage speech or conduct protected by the First Amendment. Duncantell

v. State, 230 S.W.3d at 843. Section 36.02(a)(1), (4) provides that a person commits bribery if:

(a) 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;

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.

110 Tex. Pen. Code Ann. §§ 36. 02(a)(1), (4) (West 2007). The offense proscribed

in the instant case is in many ways similar to extortion. See Sanchez, 995

S.W.2d at 687. Bribery, while involving “speech,” is not protected by the

First Amendment. Id. Bribes are not protected simply because they are

written or spoken; extortion is a crime although it is verbal. Id. (citing

United States v. Marchetti, 466 F.2d 1309, 1314 (4th Cir. 1972)). Accordingly, the type of speech prohibited by section 36.02 is not within

the nature of speech protected by the First Amendment; therefore, Section

36.02 is not overbroad in violation of any constitutional provisions. See

Colten v. Kentucky, 407 U.S. 104 (1972); McMorris v. State, 516 S.W.2d 927, 929-30 (Tex. Cr. App.1974).

F. Section 36.02 is Not Unconstitutionally Vague. Vague

A statute will be declared unconstitutionally vague if its prohibitions

are not clearly defined. Duncantell, 230 S.W.3d at 844; see Papachristou

v. City of Jacksonville, 405 U.S. 156 (1972) (statute void for vagueness if it fails to give a person of ordinary intelligence fair notice that his

contemplated conduct is forbidden by the statute.). The vagueness

doctrine is not, however, designed to convert into a constitutional dilemma

the practical difficulties in drawing criminal statutes general enough to

take into account a variety of human conduct and sufficiently specific to

provide fair warning that certain kinds of conduct are prohibited. Id. A

two-part inquiry is applied in examining a criminal statute for vagueness.

111 Id. First, courts review the statute to determine whether an ordinary law-abiding person receives sufficient information from the statute that his

conduct risks violating the criminal law. Id. A criminal statute need not

be mathematically precise; it need only give fair warning, in light of

common understanding and practices. Id. at 845. A statute is

unconstitutionally vague when no core of prohibited activity is defined. Id.

Second, courts determine whether the statute provides sufficient notice to

law enforcement personnel to prevent arbitrary or discriminatory

enforcement. Id. A statute must be sufficiently definite to avoid the

possibility of arbitrary and erratic arrests and convictions. Id.

Here, Appellant gives no support of his claim that the “bribery

statute is void for vagueness because it fails to give a person of ordinary

intelligence a reasonable opportunity to know that indirect campaign

financing by way of an interest-free loan to a candidate from a third-party

would be prohibited as a ‘bribe.’ ” Brief at 45. He just states that “the

statute is indefinite and susceptible to arbitrary enforcement. . .”, without

any evidentiary support and no application of law. Id. Nor does he provide

a clear and concise argument for the contentions he makes with

appropriate citation to the record. See Tex. R. App. Proc. 38.1(I);

Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003) (concluding appellant failed to adequately brief issue when he failed to

apply law to facts of case as required under appellate rules). Because

112 Appellant has failed to adequately brief this issue, this court need not

reach the merits of his complaint.26

Regardless, Appellant’s claim lacks merit. As previously cited in Part

V.D, supra, this same offense, Section 36.02, was similarly attacked as

being void for vagueness in Mutscher v. State, 514 S.W.2d 905 (Tex. Crim.

App. 1974). The court concluded in Mutscher that the relevant bribery

statutes of the then applicable penal code “clearly furnish(ed) adequate

warning to anyone of ordinary intelligence that the kind of conduct

embarked on by appellants would constitute an offense.” The present

penal code section making bribery an offense is an amendment of the 1974

codification of the various provisions previously set forth in Title V,

Chapter 1, of the state’s former penal code. It is readily apparent, from a

review of the current statute, what conduct is prohibited by the statute and

that the statute’s application is appropriately restricted so as not to result

in arbitrary and erratic convictions. Therefore Section 36.02 is not

unconstitutionally vague. See Connally v. General Construction Company,

26 The State notes that Appellant did not provide the court with any relevant citations to the record regarding these points. If a party does not refer the appellate court to the precise pages in the record where the error allegedly occurred, the appellate court may properly overrule the point(s) as inadequately briefed. Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995), disavowed on other grounds by Mosley v. State, 983 S.W.2d 249, 263, n.18 (Tex. Crim. App. 1998) (op. on reh’g); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995).

113 269 U.S. 385 (1925); McMorris v. State, 516 S.W.2d 927 (Tex. Crim. App.

1974).

PRAYER FOR RELIEF

FOR ALL THESE REASONS, the State respectfully requests that

this Honorable Court overrule Appellant’s points of error and affirm his

convictions and sentences.

GREG ABBOTT Attorney General of Texas

DANIEL T. HODGE First Assistant Attorney General

DON CLEMMER Deputy Attorney General for Criminal Justice

HARRY E. WHITE Assistant Attorney General Criminal Prosecutions Division

114 EDWARD L. MARSHALL Chief, Criminal Appeals Division

/s/ Gretchen B. Merenda *Lead Counsel GRETCHEN B. MERENDA* Assistant Attorney General State Bar No. 24010233

P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 936-1400 Facsimile: (512) 936-1280

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF APPELLATE PROCEDURE 9.4

This brief does not comply with Tex. R. App. Proc. 9.4 in that it

contains 28,842 words, in Microsoft WordPerfect 12, Century, 14 points.

The State has, however, filed a “Motion to Exceed Word Count Limit for

Appellee Brief,” in compliance with Rule 9.4(i)(4) of the Texas Rules of

Appellate Procedure.

/s/ Gretchen B. Merenda GRETCHEN B. MERENDA* Assistant Attorney General

115 CERTIFICATE OF SERVICE

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

I do hereby certify that, if the email address for counsel of record for

appellant is on file with the electronic filing manager, then a true and

correct copy of the foregoing pleading was served electronically through the

electronic filing manager. In addition, I do hereby certify that on

September 10, 2014, a true and correct copy of the foregoing pleading was

served on the following attorneys via electronic mail:

John M. Helms jhelms@fhsulaw.com

/s/ Gretchen B. Merenda GRETCHEN B. MERENDA* Assistant Attorney General