Cary v. State

• Decision Date: 14 December 2016
• Docket Number: NO. PD–1341–14,PD–1341–14
• Parties: Stacy Stine CARY, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

507 S.W.3d 750

Stacy Stine CARY, Appellant

v.The STATE of Texas

NO. PD–1341–14

Court of Criminal Appeals of Texas.

Delivered: December 14, 2016

John Michael Helms Jr., for Stacy Stine Cary.

Joseph Peter Corcoran, Casey Solomon, for The 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.

Appellant, Stacy Stine 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. Her sentence was probated, but she was ordered to serve 30 days' confinement as a condition of her probation. A split panel of the Dallas Court of Appeals affirmed her convictions. Cary v. State , No. 05–12–01421–CR, 2014 WL 4261233 (Tex. App.—Dallas Aug. 28, 2014) (not designated for publication). In four grounds, she alleges that the evidence was legally insufficient to support her convictions, and in a fifth ground she argues that the trial court reversibly erred when it excluded certain evidence.¹ Because we sustain her first and fourth grounds, we will reverse and render an acquittal on each count and need not reach the other three grounds for review.

BACKGROUND²

This case involves a number of actors: David Cary (David), Jennifer Cary (Jennifer), Stacy Stine Cary (Stacy), Judge Charles Sandoval (Sandoval), James Spencer (Spencer), and Suzanne Wooten (Wooten). David was married to Jennifer, and they had two children. In 2003, David filed for divorce. Judge Sandoval of the 380th District Court of Collin County presided over that litigation. After the final divorce decree was signed in 2004, protracted child custody litigation ensued. Sandoval also presided over those proceedings. In early December 2006, David married Stacy, and later that month, Sandoval removed David as joint managing conservator of his children with Jennifer.

At some point in 2007, David and Stacy sought to change the law through the legislature to remedy David's family law woes and to help other parents. In trying to accomplish that goal, David and Stacy (the Carys)³ were introduced to Spencer. Like the Carys, Spencer had an interest in family law, and when the three met in person for the first time, Stacy allegedly hired Spencer to perform consulting work for her. Between January 4, 2008 and March 14, 2008, Stacy transferred $150,000 to Spencer. During the time period in which Stacy was transferring money to Spencer, Spencer recruited Wooten to run against Sandoval. The State asserts that the consulting agreement between Stacy and Spencer was a sham and that the $150,000 was really a bribe, or an offer of a bribe, from Stacy to Wooten (made indirectly through Spencer) to induce Wooten to run against Sandoval so she could issue rulings favorable to the Carys once elected.

Stacy was convicted on all counts, and she appealed. After losing her appeal, she filed a petition for discretionary review, which we granted.

LAW OF BRIBERY

Stacy was charged with bribery under Section 36.02(a)(1) and (a)(2) of the Penal Code. A person charged under those provisions is not guilty of bribery if the benefit offered was a political contribution. TEX. PENAL CODE § 36.02(d). Before this Court, Stacy now claims that the political-contribution exception applies to her because the evidence shows that the money she offered was intended to be used in connection with a campaign for public office. 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.

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

* * *

(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.

Id. § 36.02 (internal footnote omitted).

COGNIZABILITY

Before we can reach the merits of Stacy's argument, however, we must determine whether the issue is properly before us. For the reasons that follow, we conclude that it is.

Unassigned Error

Stacy did not argue in the court of appeals that her bribery convictions should be reversed because the State failed to negate the political-contribution exception. Writing in dissent, Justice Fitzgerald asserted that the majority should nonetheless address the issue in the interest of justice. Cary , 2014 WL 4261233, at *41 (Fitzgerald, J., dissenting). The majority disagreed, but it nonetheless responded to the merits of Fitzgerald's reasoning and rejected it. Id. at *34 (majority opinion).

In her petition for discretionary review and brief on the merits, Stacy argues that the "political contribution" issue is properly before us. She concedes that she did not raise it at the court of appeals, but according to her, in addressing the merits of the issue, the court of appeals effectively exercised its power to reach the unassigned error. The State did not file a response to Stacy's petition for discretionary review, and it does not reference unassigned error in its brief on the merits.

We agree with Stacy that the court of appeals reached the unassigned error when it analyzed the "political contribution" exception. Thus, the issue is properly before us. Sanchez v. State , 209 S.W.3d 117, 120–21 (Tex. Crim. App. 2006).

Invited Error

Next, the State argues that Stacy should be estopped under the invited-error doctrine from arguing on appeal that the wire transfers were political contributions because her trial theory was that the wire transfers were compensation for consulting work. For support, it cites our opinion in Prystash v. State , 3 S.W.3d 522, 531 (Tex. Crim. App. 1999).

In Prystash , we explained that "the law of invited error estops a party from making an appellate error of an action it induced." Id. Here, however, no action was induced by Stacy. Thus, the doctrine is inapplicable. And, at any rate, in a sufficiency analysis, the only issue is whether a rational jury could have found each essential element of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The arguments of the parties and their trial theories are not evidence, and as a result, they are of no consequence in a sufficiency analysis. Ex parte Bryant , 448 S.W.3d 29, 41 n.15 (Tex. Crim. App. 2014) (arguments are not evidence); see also Ramsey v. State , 473 S.W.3d 805, 808 (Tex. Crim. App. 2015) (in conducting a legal-sufficiency analysis, the reviewing court examines only the admitted evidence).

CONSTRUCTION OF THE POLITICAL–CONTRIBUTION EXCEPTION

Stacy argues that Section 36.02(d) of the Texas Penal Code excludes by its plain language all political contributions from the offense of bribery as charged in this case, including those that exceed the maximum allowable amount under the law. Justice Fitzgerald, who dissented, agrees with Stacy. Cary , 2014 WL 4261233, at *43 (Fitzgerald, J., dissenting). The majority of the court of appeals, however, concluded that the statutory definition of "political contribution" is limited to legal political contributions⁴ (i.e., those that do not exceed the maximum amount in a judicial race), although it did not explain its reasoning.⁵ Cary , 2014 WL 4261233, at *34 (majority opinion) ("[A] rational jury could have reasonably found that Stacy's payments were not political contributions as defined by the statute."). The State does not address this particular argument, but it is relevant to the disposition of this appeal, so we address it now.

Applicable Law

Statutory construction is a question of law, which we review de novo. Harris v. State , 359 S.W.3d 625, 629 (Tex. Crim. App. 2011). In analyzing the language of a statute, we "seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted the legislation." Id. (quoting Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ). To do so, we first look to the text of the statute and read words and phrases contained therein in context and construe them according to normal rules of grammar and usage. Id. (citing Lopez v. State , 253 S.W.3d 680, 685 (Tex. Crim. App. 2008) ). We also "presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible." Id. (quoting State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App. 1997) ). If the language of the statute is...