Cary v. State

• Decision Date: 14 December 2016
• Docket Number: NO. PD–0445–15,PD–0445–15
• Parties: David Frederick Cary, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

507 S.W.3d 761

David Frederick Cary, Appellant^*

v.The STATE of Texas

NO. PD–0445–15

Court of Criminal Appeals of Texas.

Delivered: December 14, 2016

John Michael Helms Jr., for David Cary.

Lisa McMinn, Joseph Peter Corcoran, Jessica Manojlovich, for State of Texas.

OPINION

Hervey, J., delivered the opinion of the Court in which Keller, P.J., Johnson, Keasler, Alcala, Richardson, Yeary, and Newell, JJ ., joined.

David Cary was convicted by a jury of six counts of bribery, one count of money laundering, and one count of engaging in organized criminal activity. His punishment was assessed at fourteen years' confinement on each count to run concurrently with one day credit. He appealed the judgments of conviction, and a unanimous panel of the court of appeals found that there was insufficient evidence to support his convictions, entering an acquittal on each count. David Cary v. State , 460 S.W.3d 731 (Tex. App.–Dallas 2015). The issue in this case is whether the court of appeals misapplied the standard for legal sufficiency.² We conclude that it did not, and we will affirm the judgment of the court of appeals.

COMPANION CASE

David's wife, Stacy Cary, was also convicted in a companion case on six counts of bribery, one count of money laundering, and one count of engaging in organized criminal activity. Stacy Cary v. State , No. 05–12–01421–CR, 2014 WL 4261233 (Tex. App.–Dallas Aug. 28, 2014) (mem. op.) (not designated for publication). The panel that decided her case affirmed her convictions. Id. Today, we reversed the judgment of that panel and rendered acquittals on each count because the evidence is insufficient to support her convictions. Stacy Cary v. State , No. PD–1341–14, 507 S.W.3d 750, 759–60, 2016 WL 7856534 (Tex. Crim. App. Dec. 14, 2016). For the same reasons that we discussed in that opinion, we affirm the judgment of the court in this case rendering an acquittal on each count.³

BRIBERY

Law of Bribery

The bribery statute states in relevant part that,

(a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:

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

(2) any benefit as consideration for the recipient's decision, vote, recommendation, or other exercise of official discretion in a judicial or administrative proceeding;

(3) any benefit as consideration for a violation of a duty imposed by law on a public servant or party official; or

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

* * *

(d) It is an exception to the application of Subdivisions (1), (2), and (3) of Subsection (a) that the benefit is a political contribution as defined by Title 15, Election Code, or an expenditure made and reported in accordance with Chapter 305, Government Code.

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

TEX. PENAL CODE § 36.02 (footnote omitted). Relevant definitions from Title 15 of the Texas Election Code include,

(2) "Contribution" means a direct or indirect transfer of money, goods, services, or any other thing of value and includes an agreement made or other obligation incurred, whether legally enforceable or not, to make a transfer. The term includes a loan or extension of credit, other than those expressly excluded by this subdivision, and a guarantee of a loan or extension of credit, including a loan described by this subdivision. The term does not include:

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

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

(3) "Campaign contribution" means a contribution to a candidate or political committee that is offered or given with the intent that it be used in connection with a campaign for elective office or on a measure. Whether a contribution is made before, during, or after an election does not affect its status as a campaign contribution.

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

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

(B) are not reimbursable with public money.

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

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

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

TEX. ELEC. CODE § 251.001(2) –(7).

Court of Appeals

The court of appeals held that the evidence is insufficient to support David's bribery convictions because the State failed to prove that the benefits offered to Wooten were something other than political contributions. David Cary , 460 S.W.3d at 738 ; see TEX. PENAL CODE §§ 2.02(b) (statutory exceptions must be negated by the State beyond a reasonable doubt), 36.02(a)(1)–(2), (d) (bribery and political-contribution exception). In doing so, the court rejected the State's argument that a jury could have inferred that the contributions were not political ones because David intended to "bribe" Wooten and "engaged in several deceptive practices to prevent the funds from being traced to him." David Cary , 460 S.W.3d at 737. It explained that a "political contribution" is a contribution given with the intent that it be used in a campaign for elected office and that, in this case, the evidence showed just that—David offered Wooten benefits through Spencer to fund Wooten's campaign to unseat Sandoval. Id. ; see TEX. ELEC. CODE § 251.001(5). It also pointed out that, if the State fails to negate the political-contribution exception, David's intent to "bribe" and his deceptive acts to hide the source of the money are irrelevant. David Cary , 460 S.W.3d at 737.

State's Arguments

The State first argues that the court of appeals erred in its legal-sufficiency analysis. It also contends that the lower court mistakenly focused on the ultimate use of Stacy's money in Wooten's campaign instead of looking to the subjective intent at the time the contribution was made, as required by the Election Code. According to the State, this latter analytical error was the "fundamental misconception upon which the lower court foundered." State's Brief on the Merits at 26. Finally, the State asserts that the court of appeals failed to properly apply the standard for legal sufficiency because it did not view the evidence in the light most favorable to David's convictions. Instead, the State contends that the court's analysis was more akin to a factual-sufficiency review and that it harkened back to our discarded pre-Geesa standard, requiring the State to negate every reasonable hypothesis other than that establishing the guilt of the accused. Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.); Geesa v. State , 820 S.W.2d 154, 157 (Tex. Crim. App. 1991) (abrogating the alternative-reasonable-hypothesis construct).

Legal Sufficiency

When determining whether the evidence is sufficient to support a criminal conviction, the only standard an appellate court should apply is the Jackson v. Virginia test for legal sufficiency. Brooks , 323 S.W.3d at 895 (plurality op.). Under that standard, the State must prove each essential element of the offense beyond a reasonable doubt. TEX. PENAL CODE §§ 1.07(22) (elements of an offense include negating any statutory exception to that offense). This requirement, however, does not obligate the State to disprove every innocent explanation of the evidence before a jury can find a defendant guilty. See Tate v. State , 500 S.W.3d 410, 417–18 (Tex. Crim. App.2016). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In this analysis, the arguments of the parties are of no consequence because arguments are not evidence. Hutch v. State , 922 S.W.2d 166, 173 (Tex. Crim. App. 1996) (plurality op.) ("It is axiomatic that jury arguments are not evidence"). To the extent that a reviewing court relies on such in a legal-sufficiency analysis, it does so in error.

The evidence is viewed in the light most favorable to the verdict because it is "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson , 443 U.S. at 319, 99 S.Ct. 2781. This standard "impinges upon 'jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law," and it prevents the reviewing c...