Cary v. State

• Decision Date: 25 March 2015
• Docket Number: No. 05–13–01010–CR,05–13–01010–CR
• Citation: 460 S.W.3d 731
• Parties: David Cary, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

460 S.W.3d 731

David Cary, Appellant

v.The State of Texas, Appellee

No. 05–13–01010–CR

Court of Appeals of Texas, Dallas.

Opinion Filed March 25, 2015

Discretionary Review Granted July 1, 2015.

John M. Helms, Dallas, TX, for appellants.

Cara Blossom Hanna, Elizabeth A. Goettert, Gretchen B. Merenda, Harry Eugene White, Don Clemmer, Edward Marshall, Ken Paxton, Austin, TX, for appellees.

Before Justices Bridges, Lang –Miers, and Myers

OPINION

Opinion by Justice Lang –Miers

Appellant David Cary was charged with eight felonies—six counts of bribery, one count of money laundering, and one count of engaging in organized criminal activity. After finding appellant guilty as charged, the jury assessed concurrent sentences of fourteen years in prison for each offense. On appeal appellant argues that (1) the evidence is legally insufficient to support his convictions, (2) he received ineffective assistance of counsel, and (3) the bribery statute is unconstitutional. We conclude that the State's evidence is legally insufficient to support appellant's convictions. We reverse the trial court's judgments and render judgments of acquittal.

Background

Appellant's convictions arise from the same evidence presented by the State in the previous trial of his wife, Stacy Stine Cary. We described all of the evidence at great length in our opinion in Stacy Cary's appeal. See Cary v. State, No. 05–12–01421–CR, 2014 WL 4261233 (Tex.App.–Dallas Aug. 28, 2014, pet. granted) (not designated for publication). Because the parties agree that the records in both cases are nearly identical,¹ we do not re-describe all of the evidence again here. Instead, we discuss pertinent evidence below as it pertains to the issues we must decide in this appeal.

Issues on Appeal

Appellant raises six issues on appeal (several of which are different from the issues raised in Stacy Cary's appeal). In his first issue, appellant argues that the evidence is legally insufficient to support his bribery convictions because (1) the State's evidence proved an exception to the bribery statute, (2) there was no evidence of consideration, and (3) there was no evidence of intent. In his second issue, appellant argues that the evidence is legally insufficient to support his conviction for engaging in organized criminal activity because there was insufficient evidence of the alternative predicate offenses of bribery, money laundering, and tampering with a governmental record. In his third issue, appellant argues that the evidence is legally insufficient to support his conviction for money laundering because there was insufficient evidence of the sole predicate offense of bribery. In his fourth issue, appellant argues that he received ineffective assistance of counsel because his counsel admittedly failed to timely amend appellant's sentencing election so that punishment could be assessed by the trial court, which caused appellant to receive a longer sentence. In his fifth issue, appellant argues that the bribery statute is unconstitutional as applied because it impermissibly burdened his First Amendment right to exercise political speech. In his sixth issue, appellant argues that the bribery statute is facially unconstitutional because it is vague and overbroad. We only address appellant's first three issues because our resolution of those issues is dispositive of this appeal.

Standard of Review

In evaluating the legal sufficiency of the evidence to support a criminal conviction, “reviewing courts are obliged to view all of the evidence in the light most favorable to the jury's verdict, in deference to the jury's institutional prerogative to resolve all contested issues of fact and credibility.” Delay v. State, 443 S.W.3d 909, 912 (Tex.Crim.App.2014). But sometimes, as in this case, “appellate review of legal sufficiency involves simply construing the reach of the applicable penal provision in order to decide whether the evidence, even when viewed in the light most favorable to conviction, actually establishes a violation of the law.” Id.

Bribery

Applicable Law

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

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

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

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

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

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

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

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

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

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

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

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

Tex. Penal Code Ann. § 36.02 (West 2011) (internal footnote omitted).

The Indictment

The indictment charged appellant with bribery in counts two through seven in connection with six separate payments from Stacy Cary to James Stephen Spencer, Suzanne Wooten's campaign manager. For example, count two alleged that appellant,

on or about January 4, 2008, ... did then and there intentionally and knowingly offer, confer, and agree to confer a benefit, other than a political contribution as defined by Title 15, Election Code, or an expenditure made and reported in accordance with Chapter 305 of the Government Code, to-wit: $50,000 to Suzanne H. Wooten, a public servant, to-wit: a candidate for the office of Judge of the 380th Judicial District Court and presiding Judge of the 380th Judicial District Court, as consideration for Suzanne H. Wooten's decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, and as consideration for Suzanne H. Wooten's decision, vote, recommendation, and other exercise of official discretion in a judicial proceeding, to wit: filing paperwork to run for Judge, proceeding and continuing with a campaign to unseat the incumbent elected Judge of the 380th Judicial District Court, and as Judge of the 380th Judicial District Court presiding over and issuing favorable rulings in cases in which [appellant] and Stacy Stine Cary are parties[.]

The allegations in the other five bribery counts differed only with respect to the date and amount of the transfer. The payments totaled $150,000 and occurred between January 4 and March 14, 2008. The jury charge tracked the indictment and instructed the jury that appellant could be found guilty as a principal or as a party to the offenses of bribery.

Analysis

Appellant was charged with bribery under penal code sections 36.02(a)(1) and 36.02(a)(2). As a result, the exception for political contributions found in section 36.02(d) applies, and under section 2.02(b) of the penal code,² it was the State's burden to prove beyond a reasonable doubt that the benefits to Wooten, in this case the payments to Spencer, were something other than political contributions. In his first issue, appellant argues that the evidence is legally insufficient to support his bribery convictions because the State failed to satisfy that burden. We agree.

We begin by looking to the relevant definitions in Title 15 of the Texas Election Code. Shown in context, the relevant provisions of the election code provide:

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

(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

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