Cary, David Frederick

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

______________________________

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 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 f

This text is long and has been trimmed here. Open the source document for the complete record.