No. PD-_______

______________________________

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

______________________________

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 

PD-0445-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/21/2015 11:12:35 AM

Accepted 4/21/2015 3:06:59 PM

ABEL ACOSTA

CLERK
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 coconspirator, 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.

4 The 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 

5 Without 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.

NOTICE: THIS OPINION HAS NOT BEEN 

RELEASED FOR PUBLICATION IN THE 

PERMANENT LAW REPORTS. UNTIL RELEASED, 

IT IS SUBJECT TO REVISION OR WITHDRAWAL.

OPINION

Court of Appeals of Texas,

Dallas.

David Cary, Appellant

v.

The State of Texas, Appellee

No. 05–13–01010–CR | Opinion Filed March 25, 

2015

On Appeal from the 366th Judicial District Court, 

Collin County, Texas, Trial Court Cause No. 

366–81636–2011

Attorneys and Law Firms

John M. Helms, for David Cary.

Cara Blossom Hanna, Elizabeth A. Goettert, Gretchen B. 

Merenda, Harry Eugene White, for the State of Texas.

Before Justices Bridges, Lang–Miers, and Myers

OPINION

Opinion by Justice Lang–Miers

*1 Appellant David Cary was charged with eight 

felonies—six counts of bribery, one count of money 

laundering, and one count of engaging in organized 

criminal activity. After finding appellant guilty as 

charged, the jury assessed concurrent sentences of 

fourteen years in prison for each offense. On appeal 

appellant argues that (1) the evidence is legally 

insufficient to support his convictions, (2) he received 

ineffective assistance of counsel, and (3) the bribery 

statute is unconstitutional. We conclude that the State’s 

evidence is legally insufficient to support appellant’s 

convictions. We reverse the trial court’s judgments and 

render judgments of acquittal.

BACKGROUND

Appellant’s convictions arise from the same evidence 

presented by the State in the previous trial of his wife, 

Stacy Stine Cary. We described all of the evidence at 

great length in our opinion in Stacy Cary’s appeal. 

SeeCary v. State, No. 05–12–01421–CR, 2014 WL 

4261233 (Tex.App.–Dallas Aug. 28, 2014, pet. granted)

(not designated for publication). Because the parties agree 

that the records in both cases are nearly identical,1 we do 

not re-describe all of the evidence again here. Instead, we 

discuss pertinent evidence below as it pertains to the 

issues we must decide in this appeal.

ISSUES ON APPEAL

Appellant raises six issues on appeal (several of which are 

different from the issues raised in Stacy Cary’s appeal). In 

his first issue, appellant argues that the evidence is legally 

insufficient to support his bribery convictions because (1) 

the State’s evidence proved an exception to the bribery 

statute, (2) there was no evidence of consideration, and 

(3) there was no evidence of intent. In his second issue, 

appellant argues that the evidence is legally insufficient to 

support his conviction for engaging in organized criminal 

activity because there was insufficient evidence of the 

alternative predicate offenses of bribery, money 

laundering, and tampering with a governmental record. In 

his third issue, appellant argues that the evidence is 

legally insufficient to support his conviction for money 

laundering because there was insufficient evidence of the 

sole predicate offense of bribery. In his fourth issue, 

appellant argues that he received ineffective assistance of 

counsel because his counsel admittedly failed to timely 

amend appellant’s sentencing election so that punishment 

could be assessed by the trial court, which caused 

appellant to receive a longer sentence. In his fifth issue, 

appellant argues that the bribery statute is unconstitutional 

as applied because it impermissibly burdened his First 

Amendment right to exercise political speech. In his sixth 

issue, appellant argues that the bribery statute is facially 

unconstitutional because it is vague and overbroad. We 

only address appellant’s first three issues because our 

resolution of those issues is dispositive of this appeal.

© 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

*2 In evaluating the legal sufficiency of the evidence to 

support a criminal conviction, “reviewing courts are 

obliged to view all of the evidence in the light most 

favorable to the jury’s verdict, in deference to the jury’s 

institutional prerogative to resolve all contested issues of 

fact and credibility.” Delay v. State, 443 S.W.3d 909, 912 

(Tex.Crim.App.2014). But sometimes, as in this case, 

“appellate review of legal sufficiency involves simply 

construing the reach of the applicable penal provision in 

order to decide whether the evidence, even when viewed 

in the light most favorable to conviction, actually 

establishes a violation of the law.” Id.

BRIBERY

Applicable Law

The bribery statute at issue in this case provides as 

follows:

(a) A person commits an offense if he intentionally or 

knowingly offers, confers, or agrees to confer on 

another, or solicits, accepts, or agrees to accept from 

another:

(1) any benefit as consideration for the recipient’s 

decision, opinion, recommendation, vote, or other 

exercise of discretion as a public servant, party 

official, or voter;

(2) any benefit as consideration for the recipient’s 

decision, vote, recommendation, or other exercise of 

official discretion in a judicial or administrative 

proceeding;

(3) any benefit as consideration for a violation of a 

duty imposed by law on a public servant or party 

official; or

(4) any benefit that is a political contribution as 

defined by Title 15, Election Code, or that is an 

expenditure made and reported in accordance with 

Chapter 305, Government Code, if the benefit was 

offered, conferred, solicited, accepted, or agreed to 

pursuant to an express agreement to take or withhold 

a specific exercise of official discretion if such 

exercise of official discretion would not have been 

taken or withheld but for the benefit; 

notwithstanding any rule of evidence or jury 

instruction allowing factual inferences in the absence 

of certain evidence, direct evidence of the express 

agreement shall be required in any prosecution under 

this subdivision.

(b) It is no defense to prosecution under this section 

that a person whom the actor sought to influence was 

not qualified to act in the desired way whether because 

he had not yet assumed office or he lacked jurisdiction 

or for any other reason.

(c) It is no defense to prosecution under this section 

that the benefit is not offered or conferred or that the 

benefit is not solicited or accepted until after:

(1) the decision, opinion, recommendation, vote, or 

other exercise of discretion has occurred; or

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

(d) It is an exception to the application of Subdivisions 

(1), (2), and (3) of Subsection (a) that the benefit is a 

political contribution as defined by Title 15, Election 

Code, or an expenditure made and reported in 

accordance with Chapter 305, Government Code.

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

second degree.

TEX. PENAL CODE ANN. § 36.02 (West 2011)

(internal footnote omitted).

The Indictment

The indictment charged appellant with bribery in counts 

two through seven in connection with six separate 

payments from Stacy Cary to James Stephen Spencer, 

Suzanne Wooten’s campaign manager. For example, 

count two alleged that appellant,

on or about January 4, 2008, ... did 

then and there intentionally and 

knowingly offer, confer, and agree 

to confer a benefit, other than a 

political contribution as defined by 

Title 15, Election Code, or an 

expenditure made and reported in 

accordance with Chapter 305 of the 

Government Code, to-wit: $50,000 

to Suzanne H. Wooten, a public 

servant, to-wit: a candidate for the 

office of Judge of the 380th 

Judicial District Court and 

presiding Judge of the 380th 

Judicial District Court, as 

consideration for Suzanne H. 

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Wooten’s decision, opinion, 

recommendation, vote, or other 

exercise of discretion as a public 

servant, and as consideration for 

Suzanne H. Wooten’s decision, 

vote, recommendation, and other 

exercise of official discretion in a 

judicial proceeding, to wit: filing 

paperwork to run for Judge, 

proceeding and continuing with a 

campaign to unseat the incumbent 

elected Judge of the 380th Judicial 

District Court, and as Judge of the 

380th Judicial District Court 

presiding over and issuing 

favorable rulings in cases in which 

[appellant] and Stacy Stine Cary 

are parties[.]

*3 The allegations in the other five bribery counts 

differed only with respect to the date and amount of the 

transfer. The payments totaled $150,000 and occurred 

between January 4 and March 14, 2008. The jury charge 

tracked the indictment and instructed the jury that 

appellant could be found guilty as a principal or as a party 

to the offenses of bribery.

Analysis

Appellant was charged with bribery under penal code 

sections 36.02(a)(1) and 36.02(a)(2). As a result, the 

exception for political contributions found in section 

36.02(d) applies, and under section 2.02(b) of the penal 

code,

2 it was the State’s burden to prove beyond a 

reasonable doubt that the benefits to Wooten, in this case 

the payments to Spencer, were something other than 

political contributions. In his first issue, appellant argues 

that the evidence is legally insufficient to support his 

bribery convictions because the State failed to satisfy that 

burden. We agree.

We begin by looking to the relevant definitions in Title 15 

of the Texas Election Code. Shown in context, the 

relevant provisions of the election code provide:

(2) “Contribution” means a direct or indirect transfer 

of money, goods, services, or any other thing of value 

and includes an agreement made or other obligation 

incurred, whether legally enforceable or not, to make a 

transfer. The term includes a loan or extension of 

credit, other than those expressly excluded by this 

subdivision, and a guarantee of a loan or extension of 

credit, including a loan described by this subdivision. 

The term does not include:

(A) a loan made in the due course of business by a 

corporation that is legally engaged in the business of 

lending money and that has conducted the business 

continuously for more than one year before the loan 

is made; or

(B) an expenditure required to be reported under 

Section 305.006(b), Government Code.

(3) “Campaign contribution” means a contribution 

to a candidate or political committee that is offered or 

given with the intent that it be used in connection 

with a campaign for elective office or on a measure. 

Whether a contribution is made before, during, or after 

an election does not affect its status as a campaign 

contribution.

(4) “Officeholder contribution” means a contribution to 

an officeholder or political committee that is offered or 

given with the intent that it be used to defray expenses 

that:

(A) are incurred by the officeholder in performing a 

duty or engaging in an activity in connection with 

the office; and

(B) are not reimbursable with public money.

(5) “Political contribution” means a campaign 

contribution or an officeholder contribution.

(6) “Expenditure” means a payment of money or any 

other thing of value and includes an agreement made or 

other obligation incurred, whether legally enforceable 

or not, to make a payment.

(7) “Campaign expenditure” means an expenditure 

made by any person in connection with a campaign for 

an elective office or on a measure. Whether an 

expenditure is made before, during, or after an election 

does not affect its status as a campaign expenditure.

*4 TEX. ELEC. CODE ANN. § 251.001(2)–(7) (West 

2010) (emphasis added).

Boiled down, the State’s theory in this case was that the 

Carys secretly funded Wooten’s campaign for elective 

office. And the only evidence of a benefit to Wooten in 

this case was that Stacy Cary gave money to Spencer and 

Spencer used it in connection with Wooten’s campaign. 

During opening statements, for example, the State told the 

jury,

Without Stacy Cary’s money that 

was given to Stephen Spencer, 

Suzanne Wooten does not win. 

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Suzanne Wooten spends money on 

signs. She spends money on radio 

ads. She spends money on print 

ads. She spends money on direct 

mailers. She hires a consultant. 

None of these things are possible 

without the money being given to 

her.

During its case in chief, the State proved its theory 

through testimony and documentary evidence. During 

Spencer’s direct examination by the State, for example, he 

repeatedly acknowledged that he used the money he 

received from Stacy Cary to pay for Wooten’s campaign 

expenditures. Spencer’s testimony was consistent with 

State’s Exhibit 94, a compendium exhibit created by the 

State’s fraud examiner, Kyle Swihart. Exhibit 94 shows 

the timing of the payments from Stacy Cary to Spencer, 

and which campaign expenses were paid using the 

money. Swihart testified at length about the evidence 

summarized in State’s Exhibit 94. For example, with 

respect to the transfer of $50,000 from Stacy Cary to 

Spencer on January 4, Swihart explained that it was 

immediately used to pay Wooten’s campaign consultant, 

Hank Clements:

Q. All right. We’ve got these two payments to Hank 

Clements totaling $15,000, which happen to be just a 

few days after this $50,000 comes in. Absent this 

money from Stacy Cary, does Stephen Spencer have 

the money to pay for Hank Clements?

A. No.

Q. And absent this money from Stacy Cary, does 

Suzanne Wooten’s campaign have the money to pay 

for Hank Clements?

A. No.

With respect to the transfer of $25,000 from Stacy Cary to 

Spencer on February 4, Swihart testified that it was used 

to pay for additional campaign expenditures:

Q. Okay. And then there’s another—appears to be 

another transfer from Stacy Cary?

A. Yes, of $25,000 that posted to his account on 

February 4th of 2008.

Q. All right. Now, after that post[ed] to his account, 

does he cut several more cashier’s checks?

A. Yes, he does.

Q. Can you tell us what those cashier’s checks are?

A. It would be the Plano Profile cashier’s check on 

February 5th.

Q. Okay.

A. The Cartwright Signs check on February 5th. 

Actually both of those together there for $3877 and 

$4036. And then the last Cartwright expenditure on 

February 8th of 2008.

Q. All right. So, absent this $25,000 from Stacy 

Cary, does Stephen Spencer have the funds to get 

these cashier’s checks?

A. No, he does not.

Likewise, with respect to the transfer of $25,000 from 

Stacy Cary to Spencer on February 15, Swihart testified 

that it was used to pay campaign expenditures:

Q. Okay. Now, the next thing I’d like to ask you 

about is this next transfer from Stacy Cary.

*5 A. The one on February 15th?

Q. Yes, sir. Can you tell me about that?

A. That is another transfer that occurred. I believe 

that one may have been via check. And that occurred 

on February 15th.

Q. Okay. And so his balance after that transfer of 

$25,000 is how much?

A. It’s $25,000.92.

Q. And so that occurs on the 15th. And on the 20th, 

does he draw two checks?

A. Yes, he does.

Q. Okay. And what are those checks for?

A. Those are for radio ads for KVIL and KRLD.

Q. And absent this $25,000 that he receives from 

Stacy Cary, does he have the funds to pay for these 

advertisements?

A. No, he does not.

Q. Okay. And absent this $25,000 from Stacy Cary, 

does the Suzanne Wooten Campaign account have 

the funds to pay for these advertisements?

A. No.

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Finally, during closing argument, the State told the jury 

that Stacy Cary’s money was not a political contribution 

because it “never goes into [Wooten’s] account. It’s never 

reported.”

The State argues on appeal that the payments to Spencer 

for Wooten’s benefit should not be considered political 

contributions because the evidence demonstrates that 

appellant “deliberately engaged in several deceptive 

practices to prevent the funds from being traced to him.”

We must confine our analysis, however, to the definitions 

found in the election code. And under the definition of 

“political contribution” in the election code, no exception 

is made for covert indirect transfers of money.

Additionally, under the applicable definitions in the 

election code, the money did not need to be transferred 

directly to Wooten’s campaign account, nor did it need to 

be properly reported in Wooten’s campaign filings, in 

order for it to constitute a political contribution. Instead, if 

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.

The State also argues that a conclusion that the benefits to 

Wooten were political contributions would lead to an 

absurd result because it would mean that anyone could 

covertly and indirectly fund a judge’s campaign in 

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 

its burden under the specific language in section 36.02 of 

the penal code and Title 15 of the election code. SeeTEX. 

PENAL CODE ANN. § 36.02; TEX. ELEC. CODE 

ANN. § 251.001(2)–(7).

The State also argues that a rational jury could have found 

that appellant did not intend for the 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 wife Stacy.” The 

State contends that because of a difference between the 

amount Spencer spent on Wooten’s campaign and the 

amount she reimbursed him, the jury could have inferred 

“that Appellant had no specific intent that every payment 

made by his wife be used specifically in connection with 

the campaign.” But 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.

*6 We recognize that the majority did not reach this 

conclusion in Cary. See2014 WL 4261233, at *33–34. In 

that appeal, however, Stacy Cary did not raise the same 

issues as those presented here. For example, Stacy Cary 

did not raise the issue of whether the State failed to prove 

that the transfers from her to Spencer were not political 

contributions. Instead, Stacy Cary affirmatively argued in 

her appeal that the transfers to Spencer were 

compensation for services rendered under a consulting 

agreement. And the majority’s discussion of unassigned 

error raised by the dissent was obiter dictum and not 

material to the majority’s resolution of Stacy Cary’s 

appeal.

We conclude that the State’s evidence proved that the 

only benefits to Wooten were the transfers from Stacy 

Cary to Spencer, which the State argued were payments 

made to fund her campaign. As a result, the State did not 

meet its burden to prove bribery beyond a reasonable 

doubt by something other than a political contribution.3

We resolve appellant’s first issue in his favor, reverse the 

convictions for bribery, and render judgments of acquittal.

MONEY LAUNDERING

A person commits the offense of money laundering if he 

“knowingly finances or invests or intends to finance or 

invest funds that the person believes are intended to 

further the commission of criminal activity.” TEX. 

PENAL CODE ANN. § 34.02(a)(4) (West 2011). In this 

case the State alleged that appellant,

on or about and between January 4, 

2008 and March 14, 2008, ... did 

then and there, pursuant to one 

scheme and continuing course of 

conduct, knowingly finance, invest, 

and intend to finance and invest 

funds that [appellant] believed were 

intended to further the commission 

of criminal activity, to-wit: Bribery,

and the aggregate value of said 

proceeds was $100,000 or more but 

less than $200,000[.]

In his third issue, appellant argues that the evidence is 

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legally insufficient to support his conviction for money 

laundering because there is “insufficient evidence of the 

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 

commission of bribery. But in this case, the State’s only 

evidence was that appellant believed Stacy Cary was 

making what constitutes political contributions under the 

election code. And the political contributions Stacy Cary 

made are subject to the exception under the bribery 

statute. As a result, there is no evidence that appellant 

believed he was furthering the commission of bribery. We 

resolve appellant’s third issue in his favor, reverse the 

conviction for money laundering, and render a judgment 

of acquittal.

ENGAGING IN ORGANIZED CRIMINAL 

ACTIVITY

A person commits the offense of engaging in organized 

criminal activity “if, with the intent to establish, maintain, 

or participate in a combination or in the profits of a 

combination, ... the person commits or conspires to 

commit one or more [enumerated offenses].” SeeTEX. 

PENAL CODE ANN. § 71.02(a) (West Supp.2014). In 

this case the State alleged that appellant engaged in 

organized criminal activity by committing or conspiring 

to commit three predicate offenses: bribery, money 

laundering, and tampering with a governmental record. 

See id. §§ (9) (bribery), (10) (money laundering), (13) 

(tampering with a governmental record).

*7 We have concluded that the evidence is insufficient to 

support the convictions for bribery and money laundering; 

consequently, those predicate offenses will not support 

the conviction for engaging in organized criminal activity. 

The sole remaining alleged predicate offense is tampering 

with a governmental record.

The Indictment

In the indictment the State alleged that appellant engaged 

in organized criminal activity by tampering with a 

governmental record as follows:

on or about and between September 19, 2007 and 

October 20, 2009, ... with intent to establish, maintain, 

and participate in a combination and in the profits of a 

combination of three or more persons, namely, 

[appellant], Suzanne H. Wooten, Stacy Stine Cary, and 

James Stephen Spencer, did commit and conspire to 

commit the following offenses:

...

Tampering with a Government Record, in that 

Suzanne H. Wooten did then and there, with the intent 

to defraud and harm another, namely, the State of 

Texas, the Texas Ethics Commission, and the citizens 

of Texas, intentionally and knowingly make, present, 

and use a governmental record with knowledge of its 

falsity, to-wit: prepared, swore, and affirmed a Personal 

Financial Statement that was submitted to the Texas 

Ethics Commission and did not list and report all gifts 

and loans, as required by Texas Government Code Sec. 

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 

Stephen Spencer during the calendar year 2008;

and in furtherance of the conspiracy to commit said 

offenses [appellant] performed one or more overt acts, 

to-wit: communicated with other members of the 

combination, and organized, planned, and supervised 

the other members of the combination....

See id.§§ 37.10(a)(5), 71.02(a)(13).

The governmental record at issue here is Wooten’s 

Personal Financial Statement for calendar year 2008 that 

she filed with the Texas Ethics Commission as part of her 

judicial campaign. The State argued that appellant, 

Wooten, and at least one other person committed and 

conspired to commit tampering with a governmental 

record, specifically, falsifying Wooten’s Personal 

Financial Statement by omitting loans and gifts she 

received from appellant, Stacy Cary, and Spencer.

Applicable Law

The government code requires a candidate or officeholder 

to file a Personal Financial Statement and, in that report, 

to disclose personal loans over $1,000 and personal gifts 

over $250 made or given to the reporting individual, the 

reporting individual’s spouse, or the reporting 

individual’s dependent child. TEX. GOV’T CODE ANN. 

§ 572.023(a)(5), (7) (West 2012). As charged in this case, 

a person commits the offense of tampering with a 

governmental record if the person makes, presents, or 

uses a Personal Financial Statement with knowledge of its 

falsity and with intent to defraud or harm another. 

SeeTEX. PENAL CODE ANN. § 37.10(a)(5); State v. 

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2015 WL 1346126

Vasilas, 198 S.W.3d 480, 484 (Tex.App.–Dallas 2006), 

aff’d,253 S.W.3d 268 (Tex.Crim.App.2008).

“Gift,” “personal loan,” and “personal note” are not 

defined in the statute. The ordinary meaning of “gift” is a 

voluntary transfer of property to another made 

gratuitously and without consideration. Magness v. 

Magness, 241 S.W.3d 910, 912 (Tex.App.–Dallas 2007, 

pet. denied). The elements of a gift are (1) the intent to 

make a gift; (2) delivery of the property; and (3) 

acceptance of the property. Id. The ordinary meaning of 

“loan” is “money lent at interest.” WEBSTER’S THIRD 

NEW INTERNATIONAL DICTIONARY 1326 (1981). 

And “note” means “a written or printed paper 

acknowledging a debt and promising payment.” Id. at 

1544. The State’s campaign finance expert, Ian Steusloff, 

testified that he understood “personal note” to include a 

“document that states that you agree to pay a specific 

amount to another person[.]”

Analysis

*8 In his second issue, appellant argues that there is no 

evidence of unreported loans or gifts to Wooten 

individually; there is no evidence Wooten’s Personal 

Financial Statement was false; and there is no evidence 

appellant knew about the existence or contents of 

Wooten’s Personal Financial Statement. We agree.

All of the State’s evidence, indeed its entire theory, was 

that the money Stacy Cary transferred to Spencer was 

used to benefit Wooten’s judicial campaign. But the 

State’s ethics expert testified that the Personal Financial 

Statement applied only to loans and gifts to the candidate, 

not to the campaign. And the State did not present any 

evidence that appellant, Stacy Cary, or Spencer directly or 

indirectly gave money to Wooten individually. In fact, 

Swihart, the State’s fraud expert who investigated this 

case for four years, agreed that “there’s not a single 

payment that went from either Dave or Stacy Cary to 

Suzanne Wooten” and “there’s not even a situation where 

there’s been a payment from either [of] the Carys to a 

third party who then turned around and forwarded that 

money to Judge Wooten[.]” Steusloff testified that he was 

sitting in the courtroom for a majority of the witnesses’ 

testimony and he had “not heard of any gifts.” And he 

agreed that if there was no evidence Wooten received a 

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 

Cary, or Spencer intended to make a gift of money to 

Wooten individually, that appellant, Stacy Cary, or 

Spencer delivered a gift of money to Wooten, or that 

Wooten accepted a gift of money from appellant, Stacy 

Cary, or Spencer.

We also conclude that the State did not offer any evidence 

that appellant, Stacy Cary, or Spencer loaned Wooten 

money. Wooten’s Personal Financial Statement disclosed 

a loan to Wooten individually from Bank of America, and 

Swihart testified that “[a]s far as [he knew]” that was the 

only loan for Wooten’s campaign. The State offered no 

evidence that Wooten signed a personal note in favor of 

appellant, Stacy Cary, or Spencer. And Steusloff testified 

that he believed to constitute a personal note “as a 

minimum, there would need to be a document that said ‘I, 

Suzanne Wooten, promise to pay.’ ” The State offered no 

such document. We conclude that the State offered no 

evidence of a personal note or personal loan to Wooten 

individually.

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 

statement was required to include, or knew what Wooten 

disclosed when she filed it. The State concedes that there 

is “no direct evidence of [a]ppellant’s knowledge of 

Wooten’s campaign records or record filing 

requirements,” but it argues that the jury could have 

inferred based on appellant’s “blatant disregard for 

complying with any [reporting] restrictions [that] 

[a]ppellant must have intended for Wooten to omit him, 

his wife, and/or Spencer from her Personal Financial 

Statement as the bulk of her campaign resources.” Based 

on this record, any such inference amounts to mere 

surmise or suspicion.

We conclude that the State offered no evidence that 

Wooten’s Personal Financial Statement omitted alleged 

loans and gifts from appellant, Stacy Cary, or Spencer 

because there is no evidence of loans or gifts from them 

to Wooten individually. We further conclude that the 

State offered no evidence of appellant’s knowledge that 

Wooten allegedly falsified her Personal Financial 

Statement. Because there is no evidence to support any of 

the alleged predicate offenses, the conviction for engaging 

in organized criminal activity cannot stand. We resolve 

appellant’s second issue in his favor, reverse the 

conviction for engaging in organized criminal activity, 

and render a judgment of acquittal.

CONCLUSION

*9 We conclude that the evidence is legally insufficient to 

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sustain appellant’s convictions for bribery, money 

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 

appellant’s remaining arguments.

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

2014 WL 4261233

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION 

AND SIGNING OF OPINIONS.

OPINION

Do Not Publish Tex.R.App. P. 4

Court of Appeals of Texas,

Dallas.

Stacy Stine CARY, Appellant

v.

The STATE of Texas, Appellee.

No. 05–12–01421–CR. | Aug. 28, 2014. | 

Discretionary Review Refused March 25, 2015

On Appeal from the 366th Judicial District Court, Collin 

County, Texas, Trial Court Cause No. 366–81637–2011. 

James Fallon, Judge.

Attorneys and Law Firms

John M. Helms, Robert R. Smith, Dallas, TX, for 

appellants.

Cara Blossom Hanna, David Glickler, Harry Eugene 

White, Greg Abbott, Austin, TX, for appellees.

Before Justices FITZGERALD, LANG, and FILLMORE.

OPINION

Opinion by Justice FILLMORE.

*1 A jury found appellant Stacy Stine Cary (Stacy) guilty 

of one count of engaging in organized criminal activity, 

six counts of bribery, and one count of money laundering. 

The trial court assessed punishment of ten years’ 

confinement and a fine of $10,000 for each count, those 

sentences to run concurrently. The trial court suspended 

imposition of the sentences, and placed Stacy on 

community supervision for a period of ten years. The trial 

court required her to serve thirty days in county jail as a 

condition of her community supervision.1

In four issues, Stacy contends the evidence is insufficient 

to support the bribery, engaging in organized criminal 

activity, and money laundering convictions, and the trial 

court erred by excluding evidence that Stacy’s husband 

did not need to bribe a judge to obtain favorable rulings in 

his child custody case. We affirm the trial court’s 

judgments.

Background

Indictment

With regard to six transfers of money ($50,000 on 

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

on February 14, 2008, $25,000 on February 26, 2008, 

$10,000 on March 7, 2008, and $15,000 on March 14, 

2008), Stacy was charged with six counts of bribery for 

intentionally and knowingly offering, conferring, and 

agreeing to confer a benefit, other than a political 

contribution as defined by Title 15 of the election code, or 

an expenditure made and reported in accordance with 

Chapter 305 of the government code, to Suzanne H. 

Wooten as a public servant:

to-wit: a candidate for the office of 

Judge of the 380th Judicial District 

Court and presiding Judge of the 

380th Judicial District Court, as 

consideration for Suzanne H. 

Wooten’s decision, opinion, 

recommendation, vote, or other 

exercise of discretion as a public 

servant or as consideration for 

Suzanne H. Wooten’s decision, 

vote, recommendation, or other 

exercise of official discretion in a 

judicial proceeding, to-wit: filing 

paperwork to run for Judge, 

proceeding or continuing with a 

campaign to unseat the incumbent 

elected judge of the 380th Judicial 

District Court, and as Judge of the 

380th Judicial District Court 

presiding over and issuing 

favorable rulings in cases in which 

[Stacy] and David Cary are 

parties[.]

Stacy was charged with money laundering as follows:

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[Stacy] on or about and between 

January 4, 2008 and March 14, 

2008, ... did then and there, 

pursuant to one scheme and 

continuing course of conduct, 

knowingly finance, invest, and 

intend to finance and invest funds 

that [Stacy] believed were intended 

to further the commission of 

criminal activity, to-wit: Bribery, 

and the aggregate value of said 

proceeds was $100,000 or more but 

less than $200,000[.]

Stacy was also charged with engaging in organized 

criminal activity as follows:

[O]n or about and between September 19, 2007 and 

October 20, 2009, ... with intent to establish, maintain, 

and participate in a combination and in the profits of a 

combination of three or more persons, namely, [Stacy], 

Suzanne H. Wooten, David Cary, and James Stephen 

Spencer, did commit and conspire to commit the 

following offenses:

*2 Bribery, in that [Stacy] did then and there 

intentionally and knowingly offer, confer, and agree to 

confer a benefit, other than a political contribution as 

defined by Title 15, Election Code, or an expenditure 

made and reported in accordance with Chapter 305 of 

the Government Code, to-wit: one or more of the 

following transactions:

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

to Suzanne H. Wooten, a public servant, to-wit: a 

candidate for the office of Judge of the 380th Judicial 

District Court and presiding Judge of the 380th Judicial 

District Court, as consideration for Suzanne H. 

Wooten’s decision, opinion, recommendation, vote, or 

other exercise of discretion as a public servant or as 

consideration for Suzanne H. Wooten’s decision, vote, 

recommendation, or other exercise of official discretion 

in a judicial proceeding, to-wit: filing paperwork to run 

for Judge, proceeding and continuing with a campaign 

to unseat the incumbent elected Judge of the 380th 

Judicial District Court, or as Judge of the 380th Judicial 

District Court presiding over and issuing favorable 

rulings in cases in which [Stacy] or David Cary are 

parties; OR

Money Laundering, in that [Stacy] did then and 

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there, pursuant to one scheme and continuing course 

of conduct, knowingly finance, invest, intend to 

finance and invest funds that [Stacy] believed were 

intended to further the commission of criminal 

activity, to-wit: Bribery, and the aggregate value of 

said proceeds was $100,000 or more but less than 

$200,000; OR

Tampering with a Government Record, in that 

Suzanne H. Wooten did then and there, with intent to 

defraud and harm another, namely, the State of 

Texas, the Texas Ethics Commission, or the citizens 

of the State of Texas, intentionally and knowingly 

make, present, and use a governmental record with 

knowledge of its falsity, to-wit: prepared, swore, or 

affirmed a Personal Financial Statement that was 

submitted to the Texas Ethics Commission and did 

not list and report all gifts and loans, as required by 

Texas Government Code Sec. 572.023, omitting 

[Stacy], David Cary, and James Stephen Spencer 

under the heading “Gifts,” and the heading “Personal 

Note and Lease Agreements,” when in truth and fact 

said Suzanne H. Wooten had received gifts and loans 

from [Stacy], David Cary, and James Stephen 

Spencer during the calendar year 2008;

and in furtherance of the conspiracy to commit said 

offenses [Stacy] performed one or more overt acts, 

to-wit: initiated, authorized, and executed six 

monetary transactions composed of wire transfers 

and checks totaling $150,000 to James Stephen 

Spencer[.]

Evidence at Trial

*3 The reporter’s record in this appeal includes the 

testimony of the numerous witnesses at trial, as well as 

voluminous documents admitted in evidence. Because 

this appeal involves a challenge to the sufficiency of the 

evidence to support Stacy’s convictions, a rather lengthy 

discussion of the testimony and key exhibits admitted at 

trial is necessary.

Rick Robertson

David Cary (David) filed for divorce from Jennifer Cary 

(Jennifer) in December 2003. The divorce petition was 

filed in the 380th Judicial District Court of Collin County, 

Texas. Judge Charles Sandoval (Sandoval) was the 

presiding judge of that court. Rick Robertson, a board 

certified family law attorney practicing in Collin County, 

represented Jennifer throughout the divorce proceeding. 

Robertson testified at trial regarding the divorce and a 

subsequent suit affecting the parent-child relationship 

(SAPCR). David was represented by four different 

lawyers during the divorce proceeding, and in the divorce 

proceeding and subsequent SAPCR many depositions 

were taken and hearings conducted.

In the divorce proceeding, David and Jennifer reached an 

agreement regarding the terms of possession of their twin 

daughters, the amount of child support, and a fund to be 

established by David for the children’s education 

expenses. Sandoval signed the final divorce decree on 

October 5, 2004.2

In April 2005, Jennifer filed a SAPCR in 

the 380th Judicial District Court. The parties mediated 

Jennifer’s SAPCR, and a partial mediated settlement 

agreement was signed in June 2005 and filed in 

Sandoval’s court in July 2005.

In the summer or fall of 2005, a hearing in the SAPCR 

proceeding was conducted on Jennifer’s motion for 

temporary orders. David filed a motion to transfer the 

proceeding to Dallas County, Texas, which Jennifer 

opposed. Sandoval denied David’s motion to transfer the 

case.3

In April 2006, David filed a motion to recuse 

Sandoval. On May 8, 2006, the judge appointed to hear 

the motion to recuse denied that motion. In October 2006, 

a trial was conducted before Sandoval concerning a 

number of issues in the SAPCR. Among Sandoval’s 

rulings following the trial was an order that David pay 

Jennifer’s attorney’s fees in the amount of $416,543.16.4

A 

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 

appealed Sandoval’s final order of modification. In 

January 2007, David filed a motion to modify the prior 

order in the SAPCR. Robertson testified that in moving to 

modify a SAPCR order, one typically must allege some 

change in circumstances occurring since the last order. 

Robertson was surprised by David’s motion to modify, 

because it was filed the month after Sandoval’s December 

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, 

and he had a court-ordered duty to support a teenage 

daughter from a marriage prior to his marriage to Jennifer. 

David also moved again for transfer of the proceeding to 

Dallas County.5

Jennifer answered the January 2007 

motion to modify and sought an order that David pay her 

attorney’s fees and sanctions for filing frivolous 

pleadings. Sandoval denied David’s motion to modify the 

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December 1, 2006 order. On June 25, 2007, Sandoval 

signed an order sanctioning David in the amount of 

$50,000.

Sandoval was opposed by Suzanne Wooten (Wooten) in 

the 2008 Republican primary for judge of the 380th 

Judicial District Court. There was no candidate in the 

2008 Democrat primary for judge of the 380th Judicial 

District Court, so the winner of the Republican primary 

would be elected judge of that court in the 2008 general 

election. Sandoval was defeated by Wooten in the 2008 

Republican primary, and his last day in office was 

December 31, 2008. Wooten became the judge of the 

380th Judicial District Court in January 2009.

*4 Robertson testified that in January 2009, David filed 

another motion to modify in the SAPCR. Robertson 

understood Jennifer retained attorney Kyle Basinger to 

represent her in David’s motion to modify. Before 

Wooten announced her candidacy for judge of the 380th 

Judicial District Court, she was affiliated with Basinger’s 

law firm and practiced in the Collin County office of that 

firm.

Israel Suster

Jennifer retained attorney Israel Suster to assist her in the 

collection of $416,543.16 in attorney fees and the $50,000 

sanction Sandoval had previously ordered David to pay. 

Suster testified that to facilitate collection of these sums, 

he filed a Motion for Turnover Order in Sandoval’s court. 

In the application, Jennifer sought to require the turnover 

to a previously appointed receiver of funds held by 

David’s legal counsel that allegedly constituted an unused 

retainer paid by David, and funds held by Tolleson 

Private Bank that allegedly were owned by or for the 

benefit of David and which he had the authority to 

withdraw. In support of Jennifer’s Motion for Turnover 

Order, Suster filed his affidavit and supporting exhibits 

which, among other things, stated that documents 

produced by David’s legal counsel in response to a 

subpoena duces tecum indicate the counsel was in 

possession of $12,798.50 being held on behalf of David 

for the purpose of payment of future legal services, and 

that upon Suster’s information and belief, David was the 

owner and/or beneficiary of funds held at Tolleson Private 

Bank. Attached as Exhibit 2 to Suster’s affidavit is a copy 

of a $30,000 cashier’s check issued by Tolleson Private 

Bank, representing payment by David to Jennifer of 

educational funds for their children that had been ordered 

by Sandoval. Suster therefore assumed the educational 

fund payment originated from an account held by or on 

behalf of David at Tolleson Private Bank.

Suster filed a motion to hold David in contempt for failure 

to pay the $50,000 sanction and for failure to provide 

information and documents as ordered by Sandoval on 

January 31, 2007. Shortly after Sandoval signed the 

requested turnover order, Stacy filed a petition in 

intervention and motion to dissolve the turnover order, 

and objections to subpoenas seeking information from 

third parties pursuant to the turnover order. Stacy sought 

sanctions against Suster. David filed a motion to set aside 

the turnover order and the orders imposing sanctions and 

awarding attorney’s fees. At the January 3, 2008 hearing 

of David’s motions, Stacy testified she intervened in the 

lawsuit because Suster and Jennifer were trying to seize 

Stacy’s funds, claiming the funds were owned by David. 

At the hearing, Stacy testified she purchased the cashier’s 

check from Tolleson Private Bank used by David to 

establish the educational fund ordered by Sandoval in 

order to keep David from being held in contempt for 

failure to make the payment. Stacy also testified at the 

hearing regarding payments she made to attorneys who 

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 

2007 lawsuit filed by Stacy against him in County Court 

at Law No. 4, Collin County, Texas. Stacy alleged Suster 

had committed fraud by filing a lien in the 380th Judicial 

District Court in conjunction with the application for a 

turnover order. On May 28, 2008, Judge Wheless signed 

an order transferring Stacy’s lawsuit against Suster from 

County Court at Law No. 4 to the 380th Judicial District 

Court to be consolidated with the SAPCR involving 

David and Jennifer over which Sandoval was presiding. 

Stacy objected to Wheless transferring her lawsuit against 

Suster to the 380th Judicial District Court and filed a 

motion to reconsider the transfer. After Stacy’s lawsuit 

against Suster was transferred to the 380th Judicial 

District Court, Stacy did not press for the discovery she 

had sought while the case was pending in the County 

Court at Law. However, after Wooten became judge of 

the 380th Judicial District Court in January 2009, Stacy 

pursued her motions for additional discovery and 

depositions. When Wooten allowed only a limited amount 

of the discovery Stacy requested, Stacy dismissed her 

lawsuit against Suster.

Michael Puhl

*5 Michael Puhl is a board certified family law attorney 

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practicing in Collin County, Texas. In 2006, the judge of 

the 366th Judicial District Court in Collin County was not 

seeking reelection, and Puhl ran as a candidate for 

election to that bench. Puhl’s campaign expenses totaled 

$20,000 to $25,000, and $5,000 to $8,000 of that amount 

was funded from Puhl’s personal resources. Puhl testified 

that his opponent spent over $100,000 on the campaign. 

Puhl was not successful in that election.

In the fall of 2007, Puhl received a telephone call from 

James Spencer. Puhl had not previously met Spencer. 

Spencer told Puhl that he was interested in speaking to 

Puhl about the possibility of Puhl running for election 

against Sandoval as the sitting judge of the 380th Judicial 

District Court. Puhl’s best recollection was that he met 

with Spencer in mid or late summer of 2007. Spencer’s 

phone records show a phone call with Puhl on December 

5, 2007, but Puhl testified his initial phone conversation 

with Spencer took place much earlier than that date. 

Either in the phone conversation or in the subsequent 

meeting, Spencer told Puhl that he was involved with the 

Texas Home School Coalition (THSC), and there were 

several people he knew who were dissatisfied with 

decisions rendered by Sandoval and were seeking an 

opponent for Sandoval in the 2008 Republican primary. 

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 

materials. With regard to financial support, Spencer’s 

representations to Puhl were very general in nature; 

Puhl’s impression was that Spencer could marshal 

supporters who would provide financial assistance to the 

campaign. Puhl also testified that most attorneys are not 

inclined to contribute to a campaign against an incumbent 

judge, because contributions are listed on the candidate’s 

State campaign finance disclosure forms. Puhl testified 

that the maximum campaign contribution that could be 

made to a candidate for a Collin County bench in 2006 

was $2,500 per household. Puhl declined to run as a 

candidate in the election.

Daniel Dodd

*6 Daniel Dodd, chair of the Democratic Party in Collin 

County in 2007, testified that in early November 2007, he 

learned Wooten wanted to run for election as a Collin 

County judge. At a meeting with Dodd, Wooten indicated 

she was considering running for judge of the 380th 

Judicial District Court against Sandoval, but Wooten had 

not decided whether to run as a Democrat or a 

Republican. Dodd informed Wooten that if she ran as a 

Democrat, he could not give her money for signs because 

of a lack of funds. Dodd advised Wooten that if she had 

signs, the Democratic Party would make sure they were 

distributed.

After Dodd met with Wooten, he received a telephone call 

from an individual in Austin, Texas. Dodd could not 

remember the name of the caller, but the man told Dodd 

that “a bunch of lawyers ... did not like” Sandoval and 

they would “like to get him out.” The man told Dodd that 

Wooten looked like a good candidate to defeat Sandoval, 

and “they” wanted to help her. The man told Dodd that he 

thought it would probably cost about $100,000 to run a 

successful campaign, and he could get the money. The 

man was requesting permission to contact Wooten. Dodd 

told the man that Wooten was considering whether she 

would run as a Democrat or a Republican. Dodd testified 

that an individual had better odds of being elected in 

Collin County running as a Republican. Dodd gave the 

man Wooten’s contact information. Sometime after that, 

Dodd contacted Wooten and inquired whether she was 

going to run for election as a Democrat or a Republican. 

Wooten informed Dodd she was going to run for election 

as a Republican.

James Stephen Spencer

Spencer testified that he was charged with the same 

offenses as Stacy: engaging in organized criminal activity, 

bribery, and money laundering. He confirmed that he was 

being compelled to testify under a grant of testimonial 

immunity.

Spencer had an employment background in health care 

administration, but for the past fifteen years has done 

independent consulting work in areas ranging from 

marketing to finance, with some work involving political, 

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 

four and one-half hour drive from Collin County, Texas.

Beginning in 1997 or 1998, Spencer became engaged in a 

contentious legal fight with his wife’s parents over rights 

of visitation with his child and stepchild. Spencer “went 

to the legislature” beginning in 2005 to try to amend laws 

regarding parental rights that he believes are 

unconstitutional. Spencer is not a registered lobbyist in 

Texas; his legislative advocacy was in advancement of his 

personal interests. According to Spencer, he had a 

conversation in 2007 with Tim Lambert of the THSC, and 

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Lambert thought “we’re going to have to unseat some 

judges to get their attention around the state, especially on 

this issue of parental rights.”Spencer indicated the THSC 

has between 50,000 and 70,000 dues-paying members and 

he thought he could possibly raise money from THSC 

members if he ran a candidate against a “bad judge.” The 

THSC was the only organization that “got involved” in 

Wooten’s campaign for election to the 380th Judicial 

District Court.

In 2007, Spencer met Hank Clements, a registered 

lobbyist, who also had political campaign experience. 

Clements was very knowledgeable about political 

advertising, including purchasing radio broadcasting time 

and preparation of mail, flier, and sign advertising. 

Spencer talked to Clements about working together on 

political campaigns, however Spencer knew Clements 

would not work as a political campaign consultant 

without compensation. Spencer thought working with 

Clements would be an opportunity to learn from 

Clements, develop relationships with Clements’s 

connections, and “make some money,” although Spencer 

testified he did not make a lot of money working on the 

Wooten campaign. Clements’s original quote to Spencer 

for working on a district court judicial campaign was 

$50,000. Spencer told Clements that there were only 

sixty-three days until the primary election and there was 

“no way” compensation of that magnitude “was going to 

happen.” Wooten eventually spoke to Clements in the 

latter half of December 2007. Ultimately, Clements 

worked on the Wooten campaign and was paid $25,000 

for his services.

*7 Royce Poinsett, general counsel for the Speaker of the 

Texas House of Representatives, put Spencer in touch 

with David and Stacy in September 2007.6 On September 

19, 2007, Spencer emailed David and Stacy. The first 

time Spencer met David and Stacy was at their home in 

Dallas, Texas on October 2, 2007. That meeting lasted 

approximately two to two and one-half hours. Spencer 

learned that Stacy had an interest in a family-owned oil 

and gas company and also had some independent 

investments in the oil and gas industry. There was to be 

some liquidation of an investment Stacy or her family 

had, and she was going to have “significant proceeds from 

that sale” that she would either have to reinvest or incur 

some “pretty hefty capital gains taxes.” In short, Stacy 

“had a significant gain that she had to turn around and put 

to work.”David was an executive in the software industry, 

and Spencer told David he had clients involved in internet 

technology, including cyber security. Spencer felt that he 

and David “had some common ground on that area of 

business.”

During the meeting, David and Stacy shared with Spencer 

their experience in meeting with legislators and 

advocating for change in laws relating to parental rights. 

Spencer testified that the “greatest substance” of their 

conversation was about the issue of parental rights, and 

Spencer wanted to do research on David and Stacy’s 

legislative agenda, which involved shared-custody 

concepts. At the meeting, David and Stacy told Spencer 

they had been through a significant, lengthy, and 

expensive family law battle that was continuing. Spencer 

also testified that during the meeting, he discussed “in 

general terms” with Stacy his interest in providing her 

consulting services in the following areas:

1. Assessment of possible investment in new 

pumping technology;

2. Analysis of the U.S. electric marketplace, and 

potential investment in SmartGrid-related ventures;

3. Assistance in assessing and securing counsel in 

anticipation of and for contemplated litigation; and

*8 4. Assessment and proposal for family-centered 

advocacy, with an emphasis on parental rights.

According to Spencer, this discussion culminated in an 

Acknowledgment of Engagement letter dated October 1, 

2007 (the consulting agreement) between Spencer and 

Stacy, which was admitted in evidence. Stacy agreed to 

pay Spencer $250,000 based on the “overall project,” and 

$150 per hour pursuant to a fee schedule. The term of the 

agreement was October 1, 2007 to December 31, 2009. 

Spencer testified the consulting agreement was drafted 

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

to October 1, 2007. He testified he hand-delivered the 

consulting agreement to Stacy in October or early 

November 2007.

As a result of their meeting, in October or November 

2007, Spencer reviewed David’s divorce and SAPCR case 

file in the 380th Judicial District Court. It was Spencer’s 

“determination” after reviewing the case file that 

Sandoval was not applying the law correctly, and it was 

Spencer’s impression that the SAPCR was being “handled

poorly.” One of Sandoval’s rulings that Spencer found 

“problematic” was a ruling in which Sandoval sanctioned 

David’s attorney $50,000 to be paid to David’s ex-wife, 

Jennifer.

Spencer testified that in the first half of November 2007, 

he decided he wanted to find a candidate to unseat 

Sandoval as judge of the 380th Judicial District Court, 

and he acknowledged that David’s divorce and SAPCR 

were factors in that decision. There were other factors as 

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well: an informal internet poll regarding Sandoval’s 

performance, comments of THSC members in Collin 

County, Sandoval’s clearance rate for cases on his docket, 

and Sandoval’s “appellate record.” It appeared to Spencer 

that Sandoval was a “good target” for a challenger. 

Spencer believed Collin County was a “high profile place 

to make a stand on the issue of parental rights,” and a 

competitive judicial race in Collin County seemed a good 

way to make a statement that would “resonate throughout 

the judiciary.” Spencer learned that in the history of 

Collin County, there had never been a challenger to a 

sitting district judge, so Spencer believed he and THSC 

could send a powerful message by unseating a judge they 

perceived to be unfriendly concerning parental rights 

issues.

With regard to identifying potential candidates to run 

against Sandoval, Spencer believed he telephoned several 

people for recommendations, including Stacy. Spencer 

testified that he contacted attorney Puhl regarding running 

against Sandoval. Spencer told Puhl he could provide 

operational support, grassroots support, and 

organizational support, and Spencer may have generally 

mentioned the THSC. Spencer told Puhl that he would 

help him raise money for the race if he committed to run. 

Spencer told Puhl he thought it would require between 

$100,000 and $150,000 to run a “serious challenge.”

Spencer acknowledged that very few lawyers would want 

to contribute to a campaign in opposition to Sandoval. 

Spencer knew that anyone running against Sandoval 

would not raise much money from attorneys before 

election day and that most contributions to judicial 

campaigns are made by lawyers. Spencer thought “other 

people,” like grassroots activists, might contribute money 

to a campaign against Sandoval, although Spencer did not 

know any “grassroots activists” in Collin County that he 

could rely on for campaign contributions. Puhl declined to 

run against Sandoval, and he did not think Sandoval could 

be defeated.

Spencer called Puhl’s former law partner, Brian 

Loughmiller, about running against Sandoval. Spencer 

told Loughmiller that he would help Loughmiller raise 

money for the campaign, and Spencer thought he talked to 

Loughmiller about the amount of money required to win 

the race. Loughmiller declined to run against Sandoval, 

and he did not think Sandoval was going to be defeated in 

the next election cycle.

*9 Spencer testified that Wooten’s name, as a potential 

candidate to run against Sandoval, came from a “couple 

of directions.” Loughmiller may have mentioned Wooten. 

In mid-November or mid-December 2007, Spencer 

contacted Dodd. Spencer told Dodd he was looking for a 

candidate to run in the Republican primary against 

Sandoval, and he thought Sandoval was a good target for 

a challenger. Spencer had heard the Democratic Party was 

recruiting Wooten to run for office and, as a courtesy, 

Spencer wanted to inform Dodd that he was going to try 

to recruit Wooten to run as a Republican. Spencer learned 

Wooten had declined to run as a Democrat.

Spencer testified he telephoned Wooten in mid-December 

2007, in advance of the January 2, 2008 deadline to file as 

a candidate for the March 4, 2008 Republican primary. 

Spencer told Wooten that he had a “contact” in the area 

who could get her name out, but Spencer did not mention 

Clements at that point. Spencer told Wooten the campaign 

would cost $100,000 to $150,000, and Wooten thought 

that was a reasonable estimate. Spencer told Wooten 

about the support he thought her campaign could garner, 

such as endorsements, grassroots support, and volunteers 

walking in neighborhoods and handing out campaign 

materials. Spencer does not recall if he mentioned the 

THSC. Spencer told Wooten he would do everything he 

could to be supportive of her campaign. Spencer testified 

that most of the estimated $100,000 to $150,000 

campaign expense would have to come from Wooten.

On January 2, 2008, Wooten filed as a candidate for the 

380th Judicial District Court and appointed attorney Alma 

Benavides as her campaign treasurer. Sometime prior to 

January 2, 2008, Wooten called Spencer and asked him to 

serve as her campaign manager. At the time Wooten hired 

Spencer as her campaign manager, she had not met him in 

person. Spencer hired an assistant to help him with 

campaign management “after we had a candidate and had 

a campaign up and running.”

Spencer acknowledged that at the time he was recruiting 

Wooten as a candidate for the 380th Judicial District 

Court, and when she agreed to run for election, Spencer 

was receiving money from Stacy. He also acknowledged 

there were probably times when he placed telephone calls 

to Stacy and Wooten in close proximity. According to 

Spencer, when he contacted David and Stacy, he did not 

reveal details about his relationship with Wooten. Spencer 

testified he did not provide information to David and 

Stacy about Wooten’s campaign, and he did not discuss 

his “business” with David and Stacy. He did mention to 

David and Stacy that he was involved in a judicial 

campaign in Collin County and that they would not be 

involved in it. He also testified Stacy knew he was 

working on a campaign, but he did not know if he 

identified it as the Wooten campaign. He told Stacy it was 

a contested judicial primary in Collin County, but he 

testified that it would not be difficult to figure out which 

campaign because there were not many contested races. 

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David knew Wooten was running for judge. David asked 

Spencer about the campaign, but Spencer told David that 

he could not discuss it with him because David had a case 

pending in the 380th Judicial District Court. When David 

inquired further about why he could not be involved in 

Wooten’s campaign, Spencer told him it was because 

Spencer was working with Stacy, Spencer and David 

were friends, and Wooten was Spencer’s client. David 

picked up Wooten campaign signs and placed them in his 

yard, and Spencer went to David’s office at some point 

during Wooten’s campaign and saw a Wooten campaign 

sign there.

Spencer testified that the only thing he spoke to Wooten 

about that would be closely related to his business with 

David and Stacy was the issue of parental rights. When 

asked whether Wooten knew anything about David and 

Stacy, Spencer testified that he did not believe so. While 

Spencer indicated he spoke with Wooten at length about 

campaign strategy, he testified he did not talk to her about 

the money he was receiving from Stacy because one had 

nothing to do with the other. Spencer did not think he was 

placing Wooten in a difficult position; he thought he was 

protecting her by “partitioning off” his business 

relationship with David and Stacy from Wooten’s 

political campaign. Spencer denied stating that he 

“owned” Wooten or that Wooten was going to “fix”

David’s divorce.

*10 Between January 1, 2008 and March 15, 2008, Stacy 

paid Spencer $150,000 in the form of checks and wire 

transfers.7

Spencer testified this compensation related to 

his consulting agreement with Stacy, however he 

indicated the compensation was for services that were not 

yet performed but were “in progress.” According to 

Spencer, he received these payments for his services at 

the same time he was serving as campaign manager for 

Wooten.

Spencer testified that his “champagne” budget for a 

successful Wooten election campaign was $149,200. 

Spencer acknowledged at trial that without Stacy’s 

money, he probably would not have been able to pay for 

all of Wooten’s campaign expenses. According to 

Spencer, Stacy’s $150,000 was “put to work to run”

Wooten’s campaign; however, at that point, he was 

spending “his money” on Wooten’s campaign. Spencer 

testified he believed Wooten would pay him back and she 

did. Spencer testified that Wooten told him she had 

opened a line of credit to “back” all of her campaign 

expenses. Spencer wanted to avoid using that line of 

credit because, when reports of campaign expenditures 

are filed with the Texas Ethics Commission (Ethics 

Commission), it apprises the opponent of how funds 

available to the campaign are being used. In a February 5, 

2008 email from Spencer to Wooten and Clements, 

Spencer stated that Sandoval “raised some money, but I 

don’t think he’s in a position to match our 

resources.”Spencer testified that in that email, he was 

speaking not only of Wooten’s campaign account, but 

also Wooten’s line of credit. However, Spencer testified 

that without Stacy’s transfers of money to him before 

February 5, 2008, Spencer might not have been able to 

pay Clements or the other expenses of Wooten’s 

campaign incurred by that date or “we might have had a 

line of credit early.”

The first transfer of money from Stacy to Spencer 

occurred on January 4, 2008, in the amount of $50,000. 

The payment, which was made without Spencer providing 

Stacy an invoice for consulting services, occurred with 

only two months remaining until the Republican primary. 

Before receipt of that wire transfer, Spencer had $2.39 in 

his bank account. Spencer paid Clements $7,500 on 

January 7, 2008 and $7,500 on January 8, 2008. Spencer 

testified that without the wire transfer from Stacy, he 

would not have had the money to pay Clements’s $15,000 

fee, and Wooten would have had to pay Clements’s fee 

directly.

The second transfer of money from Stacy to Spencer 

occurred on January 30, 2008, in the amount of $25,000. 

The third transfer of money from Stacy to Spencer 

occurred on February 14, 2008, in the amount of $25,000. 

The fourth transfer of money from Stacy to Spencer 

occurred on February 26, 2008, in the amount of $25,000.

*11 After the March 4, 2008 Republican primary, Spencer 

and Clements were in contact on March 7, 2008 regarding 

Clements’s $10,000 bonus payable as a result of 

Wooten’s success in the primary election. On March 7, 

2008, the fifth transfer of money from Stacy to Spencer 

occurred in the amount of $10,000. On March 6, 2008, 

Spencer’s bank balance was $2,407.69. After the transfer 

of $10,000, Spencer’s bank balance was $11,707. Within 

an hour of Stacy’s March 7, 2008 wire transfer of $10,000 

to Spencer’s account, Spencer’s wife purchased a 

cashier’s check for payment of Clements’s $10,000 

victory bonus. Spencer testified he did not recall if he was 

in contact with David regarding the March 7, 2008 wire 

transfer. The sixth transfer of money from Stacy to 

Spencer occurred on March 14, 2008, in the amount of 

$15,000.

When Wooten announced her candidacy, Spencer and 

Clements advised her that it would cost a minimum of 

$100,000 to be competitive in the race. Spencer testified 

that he billed Wooten about $111,000 for campaign 

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expenses. Copies of Spencer’s invoices and his “working 

copy” of bills to Wooten’s campaign were admitted in 

evidence. Spencer testified that at the time Wooten was 

raising money after her successful political campaign, she 

still owed Spencer $80,000. Spencer invoiced Wooten’s 

campaign $4,536.75 on February 20, 2008, $2,409.25 on 

March 4, 2008, $10,009.25 on March 23, 2008, $12,000 

on April 16, 2008, $15,000 on April 25, 2008, and $5,000 

on May 26, 2008. On May 29, 2008, Spencer invoiced 

Wooten’s campaign $84,368.75, with credits and 

adjustments of $51,929.82 for payments between 

February 13, 2008 and April 28, 2008, leaving a balance 

due of $37,438.93. Spencer invoiced Wooten’s campaign 

$9,241.50 on June 3, 2008. By invoice dated July 1, 2008, 

Spencer’s cumulative bill to Wooten showed she still 

owed Spencer $33,369.91.

In the cover letter forwarding Spencer’s May 29, 2008 

invoice to Wooten, he advised that “we recognize your 

July filing deadline with the Ethics Commission, and will 

render a supplemental Invoice to your office in 

June.”Spencer testified he knew Wooten needed 

information regarding amounts spent or incurred for the 

benefit of her campaign in order to report these items 

properly on her campaign finance report filed with the 

Ethics Commission. Spencer believed a candidate is 

required to report not only campaign contributions and 

expenses on campaign finance reports, but also must list 

funds the candidate holds in a campaign account on a 

given date. Spencer testified he did not prepare Wooten’s 

campaign finance reports, but when asked, he provided 

the information she needed to prepare the reports.

Wooten did not have to draw down on her line of credit 

until sometime after the March 4, 2008 Republican 

primary. While Spencer testified he did not know whether 

Wooten drew on her line of credit for the first time on 

August 19, 2008 when she paid Spencer $33,369, 

documents admitted in evidence indicate Wooten’s line of 

credit was opened on August 13, 2008.

*12 Spencer’s consulting agreement with Stacy, dated 

October 1, 2007, was admitted in evidence. Also admitted 

in evidence was Spencer’s October 15, 2009 

“Engagement Letter for Outsourced Marketing Services”

relating to consulting services to be provided by Spencer 

to TDI, David’s employer. Spencer testified regarding 

certain aspects of those two documents. The consulting 

agreement was not signed by Stacy and was dated prior to 

the date Spencer testified he first met Stacy on October 2, 

2007. The TDI Engagement Letter for Outsourced 

Marketing Services was signed by William Johnson, 

Chief Executive Officer of TDI, on October 14, 2009, 

however the date of Johnson’s signature was the day 

before the date of the engagement letter. Spencer’s 

consulting agreement with Stacy and the TDI engagement 

letter each indicate the term of the agreement ended on 

December 31, 2009. Spencer believed Stacy paid him no 

money in connection with the consulting agreement after 

March 15, 2008.

Spencer testified that he made mistakes in preparing 

Stacy’s consulting agreement. The consulting agreement 

dated October 1, 2007, and the TDI Engagement Letter 

for Outsourced Marketing Services dated October 15, 

2009, both contain an identical phrase relating only to 

TDI: “[a]ny additional time spent on TDI’s behalf is part 

and parcel to, and inclusive of this engagement.”Spencer 

initially testified that in October 2007, he did not know 

the TDI company name, but he later changed his 

testimony and indicated that David gave him a business 

card at their October 2, 2007 meeting. Spencer denied that 

the reason Stacy’s consulting agreement and the TDI 

engagement letter contain the same language concerning 

“additional time spent on TDI’s behalf” was that when he 

received a subpoena and produced documents to the State 

in November 2009, he fabricated Stacy’s consulting 

agreement to “paper” the $150,000 Spencer received from

Stacy. Spencer denied that some of the work the 

consulting agreement indicates he was to perform for 

Stacy was actually work he was to perform pursuant to his 

Engagement Letter for Outsourced Marketing Services 

with TDI; he testified that he thought Stacy was interested 

in the same subject matter because she and David had an 

equity interest in TDI.

Spencer also testified that he made mistakes in the 

paperwork supporting invoices to Stacy. For example, 

Spencer testified that, according to the schedule of 

payments due under the consulting agreement with Stacy, 

she was to pay him $25,000 “per project,” and Stacy 

“roughly” paid $100,000 according to the schedule. An 

August 1, 2008 “summary” invoice from Spencer to Stacy 

was admitted in evidence. That summary shows that for 

the “balance” of $100,000, credits were applied for the 

following transfers of money to Spencer: $25,000 on 

February 5, 2008; $25,000 on February 14, 2008; $15,000 

on March 4, 2008; and $10,000 on March 7, 2008. 

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

26, 2008, however that transfer is handwritten on Stacy’s 

copy of the “summary” invoice. The “summary” invoice 

did not include the January 4, 2008 wire transfer of 

$50,000 from Stacy.

One of the “projects” for which Spencer testified he was 

paid $25,000 or more by Stacy involved possible equity 

investment by Stacy in Down Hole Injections (DHI). 

Spencer provided information to Stacy concerning DHI 

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which included eighteen pages of DHI financial 

statements contained in a private offering memorandum 

given to Spencer in mid–2007 by an individual living in 

Dripping Springs, Texas. By letter dated April 7, 2008, 

Spencer advised Stacy he did not believe DHI was a good 

investment for her. Another “project” for which Spencer 

testified he was paid $25,000 by Stacy involved analysis 

of the rural electricity marketplace. By letter dated July 

10, 2008, Spencer sent Stacy a summary analysis of the 

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

Acquire Broadband Service Delivery Rights.”Spencer 

acknowledged that the contents of that letter were taken in 

large part from an article published in the Harvard Journal 

of Legislation. Spencer testified he also provided 

information to Stacy in July 2008 concerning new 

pumping technology, the U.S. electric marketplace, and 

ventures related to Smart–Grid technology, based upon 

materials he had previously received.8

With regard to the 

“project” concerning parental rights for which Stacy was 

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

introduced in evidence that described creation of a 

for-profit internet service provider that could “sustain 

advocacy of parental rights,” and, according to the 

presentation, would gross $46,000,000 in revenue during 

a one year period, although Spencer testified he did not 

have experience creating an internet service provider.

*13 Spencer testified that in early 2008, he began doing 

work with TDI, which he then would have known was 

David’s employer. The first time Spencer was paid by 

TDI was in July or August 2008. He was initially asked to 

obtain a release of a lien on an account. Later, he was 

asked to retain a lobbyist on behalf of TDI and to obtain 

sales contracts. An August 26, 2008 letter from Spencer 

to TDI regarding “Proposed Legislative/Regulatory 

Strategic Plan” contains identical language to a July 10, 

2008 communication from Spencer to Stacy regarding 

“Analysis of the U.S. Electric Co–Op Market and 

Potential Venture to Acquire Broadband Service Delivery 

Rights.”

Spencer testified regarding the events surrounding 

Wooten’s recusal in March 2009 from David’s SAPCR. 

Benavides, Wooten’s campaign treasurer and an associate 

with the law firm with which Wooten practiced before her 

election, filed an answer on behalf of Jennifer on 

February 27, 2009 at 9:59 a.m., in advance of a March 2, 

2009 hearing before Wooten. According to the phone 

records admitted in evidence, David phoned Spencer at 

1:35 p.m. and 8:30 p.m. on February 26, 2009. On 

February 27, 2009 at 8:56 a.m., Spencer received a text 

message from David. At 9:07 a.m., Spencer sent a text 

message to Benavides. At 9:46 a.m., Spencer and David 

exchanged text messages. Thereafter, Spencer telephoned 

Benavides, and Spencer then called David. At 11:03 a.m., 

Spencer phoned David. David then called Spencer and 

spoke to him for several minutes. Benavides returned 

Spencer’s telephone call. Spencer then called David.

Spencer acknowledged at trial that David contacted him 

to advise him that an answer had been filed for Jennifer in 

the SAPCR by Benavides. Spencer testified that he “may 

have known” that for a period of time, Wooten would not 

preside over cases in which Benavides was counsel. 

Spencer stated that he contacted Benavides regarding her 

appearance on behalf of Jennifer. Spencer indicated that 

he cautioned Benavides about involvement in the 

SAPCR; specifically, he warned her “not to go in” the 

case. Spencer said he was giving Benavides “a read on the 

case [he] thought she was getting into” and that he 

thought the case was a “real mess.”9

Benavides asked 

Spencer if she could call him back with the law firm’s 

managing partner, Basinger, on the line. Benavides and 

Basinger called Spencer, and Spencer told them they did 

not want to be on this case.

*14 Spencer and David spoke on the phone on February 

28, 2009. Spencer testified he did not speak with Wooten 

on February 26, 27, 28, or March 1, 2009. A hearing was 

scheduled in the SAPCR before Wooten on March 2, 

2009. There were a number of text messages between 

Spencer and David on March 2, 2009. A transcript of the 

March 2, 2009 hearing was admitted in evidence. As she 

began the hearing, Wooten stated:

I had a chat with Judge Oldner, our 

administrative judge, about whether 

or not it was appropriate for me to 

hear this, especially in light of Ms. 

Benavides appearing on the case. 

Not to blame Ms. Benavides, but I 

was with her firm up until right 

about the end of last year. So, for 

various reasons, I have to recuse 

myself off this case.

Wooten signed a recusal in the SAPCR on March 4, 2009.

Spencer testified he did contact Wooten in early March 

2009 prior to her recusal. He told Wooten he was going to 

be in the area on a trip and wanted to take her to lunch. 

Records introduced in evidence established Spencer also 

called the office of Judge Oldner during this period of 

time, and Spencer testified he did not dispute calling 

Oldner’s office. He testified that at some point he tried to 

recruit Oldner to run for an appellate bench, although he 

did not know whether that was the subject of this 

particular phone call. Spencer testified that he did not 

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think it was accurate that Oldner would have control over 

“where David’s case [was] going” after Wooten’s recusal. 

After Wooten recused herself in the SAPCR, Spencer 

understood there was a case involving Stacy and Suster 

that remained pending in Wooten’s court, and Spencer 

acknowledged that he discussed that case with David.

A June 9, 2009 email exchange between David and 

Spencer was admitted in evidence regarding a June 8, 

2009 decision of the United States Supreme Court in 

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 

S.Ct. 2252, 173 L.Ed.2d 1208 (2009), a case involving 

judge recusal. Spencer’s email to David included the 

following text from an article about the decision:

Today’s decision by the U.S. 

Supreme Court that judges who 

receive campaign contributions 

large enough to create the 

appearance of bias should recuse 

themselves.... In Caperton v. 

Massey, the nation’s high court 

ruled 5–4 that because a West 

Virginia Supreme Court justice 

received $3 million in campaign 

contributions from an energy 

company executive, the judge 

should not have taken part in a 

decision affecting the executive’s 

company.

Spencer emailed David that “I think you’ll understand 

why I’m interested in this subject matter.”David then 

emailed “the entire story” to Spencer. Spencer denied that 

the reason he and David were interested in the news 

article was because Stacy’s money was used to finance 

Wooten’s campaign.

Deanna Kedzie

*15 Deanna Kedzie, a certified public accountant, 

testified that her practice focuses upon tax accounting and 

Stacy was her client. Kedzie testified about a 2008 

income and expense report dated March 16, 2009 that was 

prepared by Stacy. According to Kedzie, the report 

indicates legal fees of $226,602.96 were incurred in 2008 

relating to divorce and child custody issues. Kedzie 

testified that Stacy wanted to deduct from 2008 taxable 

income a total of $226,773 for legal and professional fees. 

Kedzie also testified about a March 31, 2008 email to her 

from Stacy, relating to Stacy’s 2007 tax return, in which 

Stacy wrote that her legal expenses were high “THANKS 

TO MY STEP CHILDREN’S 

LITIGIOUS/ABUSIVE/NARCISSIsTC[sic]/GOLD 

DIGGING MOTHER” and inquired why legal fees 

“defending my home and family” could not be deducted 

from taxable income on her 2007 income tax return. 

Kedzie testified that none of Stacy’s legal fees relating to 

divorce and child custody issues were actually deducted 

from taxable income on her income tax returns.

Kedzie testified she was unaware that Stacy had hired 

Spencer to perform consulting services. None of the 

backup documentation for calendar years 2007 and 2008 

income and expense that Stacy provided to Kedzie for 

purposes of income tax return preparation contained any 

indication Stacy paid Spencer for consulting work during 

that period. According to Kedzie, if Stacy was unsure 

about how to address the tax aspects of an expenditure or 

deduction, Stacy would typically contact Kedzie for 

advice; and if Stacy had needed any advice on how to 

address the tax aspects of a $150,000 consulting 

agreement, Stacy would most likely have contacted 

Kedzie because Kedzie prepared Stacy’s personal and 

business tax returns. Stacy did not seek advice from 

Kedzie concerning the consulting agreement with 

Spencer.

Kyle Basinger

Attorney Kyle Basinger testified that Wooten previously 

had operated a Collin County office for Basinger’s law 

firm. Basinger’s law firm formalized separation from 

Wooten’s Collin County office on September 1, 2008, 

after Wooten won the Republican primary for judge of the 

380th Judicial District Court.

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 

running as an Independent. Basinger told her he saw very 

little chance of her winning a Collin County judicial 

election as an Independent. Basinger learned of Wooten’s 

decision to run for judicial office just before the filing 

deadline in January 2008. Basinger was concerned that it 

seemed a last minute decision by Wooten. Basinger talked 

to Wooten about the difficulty of raising campaign funds 

to oppose an incumbent judge in Collin County, and told 

her that it was extremely difficult to defeat an incumbent 

judge in Collin County.

Benavides, an associate in Basinger’s law firm, served as 

Wooten’s campaign treasurer. After her election, Wooten 

requested that members of Basinger’s law firm not appear 

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in her court for a period of nine months in order to avoid 

the appearance of impropriety. With respect to a Basinger 

firm case pending in Sandoval’s court at the time Wooten 

assumed office, Basinger testified that his office would 

contact Wooten’s court coordinator to advise her of the 

pending case, and the case would be ministerially 

transferred to another Collin County judge.

*16 Basinger represented Jennifer with regard to a motion 

to modify filed in the SAPCR involving David and 

Jennifer that was pending in Wooten’s court. On February 

27, 2009, at 9:59 a.m., Basinger’s law firm filed pleadings 

on behalf of Jennifer concerning the motion to modify. 

Basinger received a telephone call from Spencer at 

approximately 10:30 a.m. on February 27, 2009. Basinger 

was aware Spencer had served as Wooten’s campaign 

manager. Basinger testified this was the only time he had 

received a telephone call from Spencer, and he was 

surprised Spencer was calling him and that Spencer had 

his telephone number. Basinger had only met Spencer one 

time prior to this telephone call. Spencer asked that 

Basinger consider withdrawing from the SAPCR 

involving David and Jennifer. Spencer’s position was that 

Basinger needed “to get off this case.” Basinger told 

Spencer he could not “just tell me I need to get off the 

case.”Spencer told Basinger that he did not want to be a 

part of this case and that Basinger had “to trust [him] on 

that.” Basinger told Spencer that he had to give Basinger 

“more than that.” Spencer said there was an ongoing 

investigation of Sandoval in Austin, but Basinger told 

Spencer that Sandoval was not hearing the SAPCR. 

Basinger told Spencer that he had given Basinger no 

reason to get off the case, and that was “pretty much the 

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 

modify the SAPCR. Basinger’s and Benavides’s names 

were listed as counsel on that motion. On March 4, 2009, 

Wooten granted the motion to recuse.

Jennifer approached Basinger regarding his firm 

representing her in two additional civil litigation matters, 

one pending in Collin County and the other pending in 

Dallas County. The civil litigation in Collin County was 

related to the SAPCR between David and Jennifer; the 

case was filed by Stacy against Jennifer and Suster, who 

was attempting to collect attorney’s fees Sandoval had 

ordered David to pay Jennifer in the SAPCR. That lawsuit 

was originally filed in the County Court at Law No. 4 of 

Collin County. Because it was related to the SAPCR 

involving David and Jennifer, the case was transferred to 

Wooten’s court in which the SAPCR case was pending.

Basinger and Benavides are listed as counsel on an April 

23, 2009 pleading filed on behalf of Jennifer in the 

lawsuit filed by Stacy against Jennifer and Suster that was 

pending before Wooten. Basinger filed a motion for 

protection regarding Stacy’s attempt to depose Jennifer. 

Wooten denied Jennifer’s motion for protection. On May 

8, 2009, Basinger filed a motion to recuse Wooten in 

Stacy’s lawsuit against Jennifer and Suster. Basinger 

anticipated the motion to recuse would be granted because 

Wooten had recused herself previously with regard to the 

motion to modify filed in the SAPCR involving David 

and Jennifer, and there were overlapping facts in Stacy’s 

lawsuit against Jennifer and Suster.

Unlike the prior motion to recuse, however, Wooten did 

not voluntarily recuse herself from Stacy’s lawsuit against 

Jennifer and Suster. Judge G. Calhoun, Jr. was appointed 

to hear the motion to recuse Wooten in that matter. On 

June 29, 2009, Basinger forwarded correspondence to 

Wooten withdrawing Jennifer’s motion to recuse. 

Basinger testified that his law partner had met with 

Jennifer, and the decision had been made to withdraw the 

motion to recuse Wooten. Basinger testified that he 

wanted Wooten to continue as the judge presiding over 

this case, and he thought she would be a “great judge” on 

the case. However, Basinger testified that, at that time, he 

had no idea of any allegation that Spencer helped finance 

Wooten’s campaign, and had he known of and believed 

such an allegation, it would have affected his view of 

Wooten. Basinger testified that after the motion to recuse 

Wooten was filed in Stacy’s lawsuit against Jennifer and 

Suster, Stacy nonsuited her case.

Hank Clements

*17 Hank Clements, an attorney and registered lobbyist in 

Texas, testified that his firm provides political and 

legislative consulting services, including lobbying. 

Clements also provides services to candidates for public 

office, including campaign management, direct mail 

advertisement, media strategies, and speech preparation. 

Prior to 2008, Clements had worked on approximately six 

judicial campaigns.

In the spring of 2007, Clements met Spencer in the office 

of a legislator. Clements believes Spencer was there with 

regard to a family law issue. Spencer told Clements he 

was interested in managing political campaigns, 

advocating for parental rights legislation, and getting “bad 

judges” off the bench. It was Clements’s understanding 

from speaking with Spencer in the fall of 2007 that 

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Spencer wanted to field a candidate in a judicial race. 

Spencer specifically asked if Clements had ever managed 

a campaign in Collin County, and Clements advised 

Spencer that he had. Spencer told Clements there were a 

number of judges that had been targeted by a group he 

belonged to because the judges were opposed to the 

family law agenda the group was trying to advocate at the 

legislature. Clements recalled specifically that Spencer 

wanted to “go after” and defeat Sandoval. Clements 

understood Spencer had been unable to find a candidate to 

run against Sandoval, but Spencer identified Wooten as a 

potential candidate who was considering entering the 

race. Spencer wanted Clements to talk to Wooten 

regarding the magnitude of such a campaign. Clements 

spoke on the telephone with Wooten toward the end of 

2007, and he met with her on a Saturday in December 

2007. Clements gave Wooten an idea of the time 

commitment and cost required for an effective political 

campaign. Clements also told Wooten it would require a 

substantial commitment on Wooten’s part to defeat an 

incumbent judge, and that the campaign would cost 

$60,000 to $70,000 or more.

By late December 2007 or early January 2008, Clements 

knew Wooten was going to run against Sandoval in the 

Republican primary for judge of the 380th Judicial 

District Court. The primary election was scheduled for 

early March 2008, and Clements testified that was a short 

time in which to execute the campaign. Although Spencer 

had never managed a political campaign, Clements 

testified Spencer wanted to run Wooten’s campaign and 

Wooten hired Spencer as her campaign manager. Spencer 

hired Clements as a subcontractor to handle media, 

prepare a campaign plan, develop overall strategies, and 

design a direct mail plan. Clements was to be paid 

$15,000 for the scope of work and a $10,000 victory 

bonus if Wooten won the race. Clements received 

cashier’s checks for payment of his fees as follows: 

$7,500 on January 7, 2008, $7,500 on January 8, 2008, 

and $10,000 on March 7, 2008 after Wooten defeated 

Sandoval in the March 4, 2008 Republican primary.

Clements did not send his bills directly to Wooten. 

Clements did not discuss individual campaign 

expenditures with Wooten; that would have been done by 

Spencer and the campaign treasurer. Clements testified 

that it is important for a campaign manager to obtain the 

candidate’s “buy off” on individual campaign 

expenditures because the expenditures must be reported to 

the Ethics Commission. According to Clements, 

management of a campaign is characterized as “turnkey”

when the candidate pays a fee to a campaign manager or 

political consultant, and the manager or consultant is then 

responsible for paying vendors and service providers. 

Clements indicated that Spencer provided turnkey 

management of Wooten’s election campaign.

*18 In other campaigns, Clements assisted the candidate 

in preparing campaign finance reports to be filed with the 

Ethics Commission. He was not asked to review 

Wooten’s campaign finance reports. According to 

Clements, campaign finance reports generally itemize the 

amount of campaign contributions and expenditures. 

Campaign finance reports filed with the Ethics 

Commission are public records, and the public can view 

the reports to see how candidates raised and spent their 

campaign funds.

The bank records for the “Suzanne H. Wooten for Judge 

Campaign” were admitted in evidence. Those records 

indicate that on February 4, 2008, the balance in the 

campaign account was $2,366, and on February 5, 2008, 

the balance in the account was $1,933. Clements 

recollects he received a telephone call from Spencer 

regarding how much money Sandoval had raised in his 

campaign and that Spencer was “not impressed” with the 

amount. Sandoval’s Campaign Finance Report filed with 

the Ethics Commission on February 4, 2008 was admitted 

in evidence. That report reflected Sandoval had raised 

$12,575 in campaign contributions, had expended 

$8,997.08, and on February 4, 2008, his campaign 

account had a balance of $4,231.37. Spencer sent an email 

to Wooten and Clements regarding Sandoval’s February 

4, 2008 Campaign Finance Report. In that email, Spencer 

said Sandoval had “raised some money,” but Spencer did 

not think Sandoval was “in a position to match our 

resources.”Clements did not know what Spencer meant by 

his reference to “resources” in that email. Spencer did not 

tell Clements that there were contributors Spencer could 

go to for money, but that was Clements’s interpretation of 

the email. It sounded to Clements like there were some 

contributors who could be “tapped” in order to raise more 

campaign funds than Sandoval. Clements testified he had 

no role in raising money for Wooten’s campaign or in 

managing the finances of the campaign.

Records regarding paid political advertisements for the 

Wooten campaign on local radio stations were admitted in 

evidence. For example, a $6,000 cashier’s check from 

Spencer for payment for radio advertisements airing on a 

radio station from February 25 through February 28, and 

on March 3, 2008, was admitted in evidence. The invoice 

for the radio advertisements was dated March 10, 2008. A 

$4,000 cashier’s check from Spencer for payment for 

radio advertisements airing on another radio station from 

February 25 through February 28, and on March 3, 2008 

was also admitted in evidence. The contract confirmation 

for that radio advertising was dated February 22, 2008, 

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and the invoice for that radio advertising was dated March 

10, 2008. An invoice from Spencer to Wooten’s campaign 

for the $6,000 and $4,000 radio advertisement expenses 

was dated March 23, 2008. A cashier’s check dated 

February 26, 2008 from Spencer in the amount of 

$14,454.25 was presented as payment for radio 

advertisements for Wooten’s campaign that aired on three 

other radio stations from February 24 through March 3, 

2008, pursuant to contracts entered into at the end of 

February 2008. A February 4, 2008 cashier’s check from 

Spencer to Cartwright Signs and T–Shirt Printing in the 

amount of $4,036.75 was admitted in evidence. 

Documents on which Wooten gave approval for campaign 

expenditures and edited or approved campaign 

advertisements and media materials were admitted in 

evidence. Clements testified with regard to this evidence 

that there is nothing improper with Spencer paying a 

campaign expense and billing the candidate later for that 

expense. Although not holding himself out as an expert on 

campaign finance reports, Clements testified that a 

campaign manager could bill the candidate later for an 

invoice paid by the campaign manager, but he believed 

the law required that the expense incurred be posted on 

the candidate’s campaign finance report. Clements further 

testified that even if a consultant decided not to send a 

candidate a bill, the candidate nevertheless would be 

required to itemize campaign expenses on the campaign 

finance report covering the time period the expenses were 

incurred.

Ian Steusloff

*19 Ian Steusloff, an assistant general counsel for the 

Ethics Commission, testified that the Ethics Commission 

is an agency that, among other things, administers laws 

relating to campaign finance, ethics disclosure, and 

regulation of lobbyists. It also serves as an enforcement 

agency.

Steusloff testified regarding filings with the Ethics 

Commission that candidates and officeholders are 

required to make. Candidates for election to a judicial 

office are required to file campaign finance reports. Those 

reports show campaign contributions, campaign 

expenditures made from a campaign account, campaign 

expenditures made from personal funds, and loans to a 

campaign. Typically candidates must file campaign 

finance reports on January 15th and July 15th. If opposed 

in an election, candidates must also file campaign finance 

reports thirty days and eight days before the election.10

Candidates are required to swear the information provided 

in a campaign finance report is true and correct. The 

campaign finance reports filed by a judicial candidate are 

public records, and the Ethics Commission posts those 

reports on its internet website.

Steusloff testified that contributions to a judicial 

campaign must be individually itemized on the campaign 

finance report if the contribution, whether money or 

in-kind, exceeds $50. A candidate must also disclose on 

the campaign finance report outstanding loans to a 

judicial campaign. Steusloff explained that campaign 

expenditures of over $50 must be itemized on the 

campaign finance report. For disclosure purposes, an 

expenditure is deemed made when the amount of the 

expenditure is readily determinable. Steusloff testified 

that, in 2008, when an individual or entity made an 

expenditure of more than $100 that benefitted, but was 

independent from, a campaign, such as paying for 

advertising that benefitted a candidate, the individual or 

entity was required to file a report with the Ethics 

Commission disclosing the expenditure and send a report 

of the expenditure to the candidate. According to 

Steusloff, if an employee of a candidate makes an 

expenditure for the campaign, the expenditure would be 

itemized on the campaign finance report as if the 

expenditure had been made by the candidate. If, however, 

the candidate hired an independent consultant and 

delegated authority to the consultant to make decisions 

concerning campaign expenditures without the 

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.

Steusloff testified that in judicial races, there are limits on 

campaign contributions. The limit depends on the 

population of the judicial district. If the population in the 

judicial district is between 250,000 and one million, as in 

Collin County in 2008, the contribution limit is $2,500. 

According to Steusloff, if an individual lends money to a 

candidate specifically to support the candidate’s 

campaign, the loan counts against the campaign 

contribution limit for that individual; however, that is not 

the case when the candidate obtains a campaign loan from 

a bank. Additionally, there are limits on a candidate’s 

campaign expenditures, which apply whether the 

candidate is using campaign contributions or personal 

funds. When a candidate pays campaign expenditures 

from personal funds, there is a limit on reimbursement of 

those expenditures from campaign contributions; the limit 

is five times the maximum permissible campaign 

contribution. Therefore, where the campaign contribution 

limit for a judicial race is $2,500, the total amount of 

reimbursement from campaign contributions of a 

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candidate’s out-of-pocket campaign expenditures is 

$12,500.

Wooten’s campaign finance reports were admitted in 

evidence. Wooten’s Campaign Finance Report for the 

period January 25, 2008 through February 23, 2008 

indicated she had received a total of $10,425 in campaign 

contributions, with total political expenditures of 

$11,734.41. Wooten’s Campaign Finance Report for the 

period February 24, 2008 through June 30, 2008 indicates 

she received $59,755. 19 in campaign contributions and 

expended $65,515.91. Wooten’s January 11, 2009 

Campaign Finance Report filed for the period July 1, 

2008 to December 31, 2008 indicates she received 

campaign contributions of $5,150 and expended 

$42,419.91.

*20 Wooten’s January 11, 2009 Campaign Finance 

Report indicates payments to Spencer in the amounts of

$1,500 and $7,550 for “turnkey mgmt svcs fees and 

costs-per invoice[s].” Earlier campaign finance reports 

and amended campaign finance reports filed by Wooten 

in 2009 disclose the following payments to Spencer: an 

August 28, 2008 payment in the amount of $33,369, 91 

for “turnkey mgmt svcs fees and costs—per invoice”; a 

February 13, 2008 payment in the amount of $4,002.32 

for signs and fees; a February 22, 2008 payment in the 

amount of $4,527.50 for campaign material and fees; a 

March 7, 2008 payment in the amount of $2,400 for a 

direct mailer; a May 29, 2008 payment in the amount of 

$5,000 for “turnkey management svcs fee and costs—per 

invoice[s]”; June 24, 2008 payments of $5,241.50 and 

$2,700 for “turnkey mgmt svcs fees and costs—per 

invoice”; a June 30, 2008 payment in the amount of 

$7,550 for “turnkey management services fees and 

costs—per invoice”; and a June 30, 2008 payment of 

$1,500 for “turnkey management services fees and 

costs—per invoice.”The campaign finance reports also 

include campaign expenditures for “CBS radio buy—per 

invoice” on March 31, 2008 in the amount of $10,000, 

“WBAP radio buy fee” on April 17, 2008 in the amount 

of $12,000, and “radio buy and direct mail—per invoice”

on April 28, 2008 in the amount of $14,000. A campaign 

finance report reflects a “personal loan” from Wooten to 

the campaign on August 28, 2008 in the amount of 

$33,369.91, matching the August 28, 2008 payment of 

$33,369.91 to Spencer for “turnkey mgmt svcs fees and 

costs—per invoice.”

Kyle Swihart

Kyle Swihart, a certified fraud examiner and a forensic 

auditor employed by the office of the Texas Attorney 

General, testified that he investigates allegations and 

complaints of white-collar crime relating to public 

integrity and money laundering. His investigation of 

Stacy included review of bank records; phone records; 

campaign finance reports; credit card statements and 

documents establishing a credit card account; invoices; 

payments made by Wooten to Spencer; and records of 

emails and other forms of communication.

A chart created by Swihart containing a summary of the 

evidence he relied upon was admitted in evidence. That 

chart contained a summary of bank records, invoices for 

services or products provided to Wooten’s campaign, 

transfers of money from Stacy to Spencer, the dates when 

products or services benefitting the Wooten campaign 

were purchased or rendered, and the dates Spencer 

invoiced Wooten’s campaign. The summary of the 

evidence spans the period of January 1, 2008, the day 

before Wooten filed her candidacy for judge of the 380th 

Judicial District Court, and August 29, 2008, when 

Wooten wrote a check in the amount of $33,369.91 from 

her line of credit to Spencer. The records Swihart 

reviewed establish Spencer made six deposits to his bank 

account of funds transferred to him by Stacy in the form 

of wire transfer or check.

On January 3, 2008, Spencer had $2.39 in his bank 

account and Wooten had $25 in her campaign account. 

On January 4, 2008, $50,000 was deposited in Spencer’s 

bank account from Stacy’s first transfer of money to him. 

Without the money transferred by Stacy to Spencer on 

January 4, 2008, Spencer did not have funds in his bank 

account, and Wooten did not have funds in her campaign 

account, for Spencer to make payment by cashier’s check 

to Clements on January 7, 2008 in the amount of $7,500 

and on January 8, 2008 in the amount of $7,500. On 

January 23, 2008, Spencer had a balance of $7,656.31 in 

his bank account remaining from the January 4, 2008 

transfer of money from Stacy, $16,856.37 having been 

spent by Spencer on Wooten’s campaign.

*21 On February 4, 2008, a payment from Stacy to 

Spencer in the amount of $25,000 was posted to 

Spencer’s bank account. Before this deposit, Spencer had 

an account balance of $5,545.51, and Wooten had a 

balance of less than $3,000 in her campaign account. 

After that deposit, the balance in Spencer’s bank account 

was $25,692.30. The records show that on February 5, 

2008, Spencer began using the $25,000 for Wooten’s 

campaign, including an expenditure of $2,345 for an 

advertisement in the Plano Profile magazine, and 

payments of $4,036.75 and $3,877.32 to Cartwright 

Signs. Without Stacy’s February 4, 2008 payment of 

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$25,000 to Spencer, these campaign expenses could not 

have been paid from either Spencer’s bank account or 

Wooten’s campaign account.

On February 13, 2008, Spencer had $1,180.97 in his bank 

account and Wooten had $5,885.06 in her campaign 

account. On February 15, 2008, another $25,000 check 

from Stacy was posted to Spencer’s bank account. After 

deposit of that check, Spencer’s bank balance was 

$25,000.92. Spencer used the money in his account after 

that deposit to purchase cashier’s checks on February 20, 

2008 totaling $10,000 to pay invoices for radio 

advertisements. Absent the $25,000 from Stacy, neither 

Spencer’s bank account nor Wooten’s campaign account 

had sufficient funds for payment of the radio stations’ 

advertising invoices.

On February 26, 2008, a $25,000 wire transfer from Stacy 

posted to Spencer’s bank account. Prior to that deposit, 

Spencer had $5,565.18 in his bank account and Wooten 

had $5,166.58 in her campaign account. The day Stacy’s 

wire transfer was made, Spencer made additional radio 

advertisement purchases in the amount of $14,454.25, as 

well as payments to the THSC Political Action 

Committee for a mailer and to an assistant. Without the 

$25,000 payment from Stacy, Spencer did not have 

sufficient funds in his bank account, and Wooten did not 

have sufficient funds in her campaign account, to pay 

those campaign expenses.

On March 7, 2008, after the March 4, 2008 Republican 

primary, Stacy wire-transferred a fifth payment to 

Spencer in the amount of $10,000. At the time of that 

transfer, Spencer had $11,707 in his bank account, and 

Wooten had $2,710.08 in her campaign account. 

Approximately one hour after the $10,000 wire transfer, 

Spencer purchased a cashier’s check in the amount of 

$10,000 made payable to Clements. A sixth payment by 

wire transfer in the amount of $15,000 was made by Stacy 

to Spencer on March 13, 2008. On March 14, 2008, that 

payment was posted to Spencer’s bank account.

Swihart reviewed phone and email records of Stacy, 

David, Clements, Spencer, and Wooten. Swihart testified 

regarding the dates and times of communications among 

those individuals and others. The first communication 

Swihart was able to document between Spencer and 

David and Stacy was September 21, 2007. Swihart was 

able to document a telephone call from Wooten to 

Spencer on December 20, 2007. Swihart testified 

regarding communications occurring around the dates of 

payments from Stacy to Spencer. Swihart also testified 

regarding communications occurring around the dates of 

events in matters before the 380th Judicial District Court 

after Wooten became judge of that court.

*22 At 3:40 p.m. on January 2, 2008, Wooten filed as a 

candidate for the 380th Judicial District Court. Moments 

before that filing, Wooten spoke to Spencer by telephone. 

After Wooten filed as a candidate, Spencer communicated 

with David. Between 6:49 p.m. and 9:45 p.m. that night, 

Spencer communicated with David on David’s cell phone, 

with Wooten on her cell phone, and with David, Stacy, or 

both, on the telephone at the Cary home.

At 10:17 a.m. on January 3, 2008, Paladini Financial

requested a third-party wire transfer from one of Stacy’s 

accounts to Spencer in the amount of $50,000.11 There 

were two attempts by Spencer to reach David and Stacy’s 

home phone during that day, and David spoke to Spencer 

from 1:13 p.m. to 1:23 p.m. At 4:49 p.m., Stacy was sent 

new wiring instructions because the earlier wire transfer 

could not be completed. On January 4, 2008, the date of 

the first wire transfer to Spencer from Stacy, Spencer had 

three telephone communications with someone on David 

and Stacy’s home phone. Swihart assumed those 

conversations were with Stacy as they occurred during the 

work day; David worked outside the home and Stacy had 

an office in her home from which she worked. After the 

wire transfer of $50,000 was posted to Spencer’s account 

at 4:34 p.m., Spencer telephoned Wooten’s office. 

Thereafter, there was a brief telephone call to Spencer 

from David.

On January 29, 2008, the night before the second payment 

by Stacy to Spencer, Spencer telephoned David’s cell 

phone. Immediately thereafter, either David or Stacy 

telephoned Spencer from David and Stacy’s home phone. 

Spencer then telephoned Wooten. After the telephone call 

to Wooten, Spencer telephoned David and Stacy’s home. 

Stacy made a second payment to Spencer on January 30, 

2008, and Spencer deposited that payment on February 1, 

2008. That payment posted to Spencer’s bank account on 

February 4, 2008. On February 5, 2008, Spencer sent an 

email to Wooten that Sandoval “cannot match our 

resources,” even though Wooten had raised only $3,620 

from campaign contributions at that time.

On February 14, 2008, Stacy made her third payment to 

Spencer. On that day, Spencer exchanged text messages 

by phone with David between 5:12 p.m. and 5:23 p.m. 

Between 5:34 p.m. and 5:46 p.m., Spencer then 

communicated in succession with Wooten, Clements, and 

David. Stacy’s third payment to Spencer posted to his 

account on February 15, 2008.

On February 26, 2008, Stacy made her fourth payment to 

Spencer. At 4:41 a.m., Spencer’s assistant confirmed to 

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Spencer by email that radio advertising time had been 

purchased for Wooten’s campaign. At 5:24 a.m. and 6:59 

a.m., David received text messages from Spencer. At 9:17 

a.m., Stacy sent instructions to Tolleson Private Bank to 

wire $25,000 to Spencer. At 2:14 p.m., the wire transfer 

was posted to Spencer’s account. At 2:37 p.m. and 2:53 

p.m., Spencer’s wife, Kipling Spencer, purchased 

cashier’s checks for payment of Wooten campaign 

expenses from the funds wired to Spencer’s account by 

Stacy.

*23 Swihart testified regarding telephone calls from TDI, 

David’s place of employment, to Wooten’s law office 

prior to her election as judge. There were a total of four 

telephone calls, with the longest being two minutes and 

fifty-four seconds. The first telephone call occurred on 

January 21, 2008 and the last call occurred on February 

25, 2008. Swihart testified there were also telephone calls 

between David’s cell phone and Wooten’s law office, 

totaling twelve to fifteen minutes.

On March 4, 2008, Wooten won the Republican primary. 

On March 7, 2008, Stacy made the fifth payment to 

Spencer. On March 7, 2008, between 7:07 a.m. and 8:29 

a.m., Spencer text-messaged four times with David. 

Clements text-messaged Spencer at 8:17 a.m. David and 

Stacy had three phone conversations between 8:45 a.m. 

and 9:10 a.m. Between 9:23 a.m. and 10:02 a.m., Spencer 

and David exchanged thirteen text messages. At 10:47 

a.m., Stacy attempted to reach David by telephone. At 

10:58 a.m., Stacy sent instructions to Tolleson Private 

Bank to wire $10,000 to Spencer. At 11:40 a.m., David 

text-messaged Spencer. At 2:51 p.m., the wire transfer of 

$10,000 posted to Spencer’s bank account. Between 3:21 

p.m. and 3:52 p.m., Spencer and David exchanged eleven 

text messages. At 3:59 p.m., Kipling Spencer purchased a 

cashier’s check made payable to Clements in the amount 

of $10,000.

Between 6:24 p.m. and 6:31 p.m. on March 13, 2008, the 

day of the sixth payment from Stacy to Spencer, Spencer 

text messaged David six times. At 9:41 p.m., Stacy sent 

instructions by email to Tolleson Private Bank to wire 

Spencer $15,000. On March 14, 2008, the sixth payment 

from Stacy to Spencer in the amount of $15,000 was 

posted to Spencer’s bank account.

On January 2, 2009, Wooten was sworn in as judge of the 

380th Judicial District Court. At 9:59 a.m. on February 

27, 2009, Benavides’s pleading regarding her appearance 

on behalf of Jennifer in the SAPCR case pending in 

Wooten’s court was file-stamped. At 11:03 a.m., there 

was a one-minute phone call between Spencer and 

David’s cell phone. At 11:04 a.m., there was a 

two-minute telephone call from Spencer to Benavides’s 

cell phone. At 11:06 a.m., Spencer attempted to call 

David. Between 11:08 a.m. and 11:13 a.m., there was a 

telephone call from David to Spencer. Between 11:14 

a.m. and 11:17 a.m., there was a telephone call from 

Spencer to Benavides. From 11:18 a.m. to 11:21 a.m., 

there was a telephone call from Spencer to David.

Swihart testified regarding events of March 2, 2009. On 

that date, Wooten was still presiding over the SAPCR 

involving David and Jennifer. Wooten and Spencer were 

communicating by text message. In the midst of their text 

messages, Spencer telephoned Judge Oldner’s office. A 

transcript of the March 2, 2009 hearing before Wooten in 

the SAPCR case was admitted in evidence. At the 

hearing, Wooten stated she learned Benavides was 

appearing in the family law matter between David and 

Jennifer on Friday, February 27, 2009. Wooten stated she 

had spoken with Judge Oldner, the administrative judge, 

on February 27, 2009, about whether it was appropriate 

for her to hear the matter, “especially in light of [Alma] 

Benavides appearing on the case.”Wooten indicated she 

had worked with Benavides through September 2008 and 

Benavides was her campaign treasurer. Wooten stated that 

“[F]or various reasons, I have to recuse myself off this 

case.”At that hearing, David’s counsel stated that David 

waived any conflict and asked Wooten to reconsider 

recusing herself from hearing the SAPCR. Wooten noted 

that during her election campaign, David “picked up 

some” of her campaign signs, but she stated she had not 

met him and would not know what he looked like. On 

March 2, 2009, Spencer and David exchanged thirty-one 

text messages. On March 3, 2009, there were eight text 

messages between Spencer and David. On March 4, 2009, 

Wooten recused herself from the SAPCR involving David 

and Jennifer. There was one phone call between Spencer 

and David that day.

*24 Swihart testified regarding Wooten’s campaign 

expenditures and Spencer’s invoices to the Wooten 

campaign for the period January 7, 2008 through August 

29, 2008. Swihart compiled a summary of those expenses 

and invoices from forty-two exhibits and testimony from 

a previous hearing.12 Swihart testified that pre-election 

expenditures on behalf of the Wooten campaign for the 

period January 1, 2008 through the Republican primary 

on March 4, 2008 totaled $81,215.26. The total amount of 

contributions deposited in Wooten’s campaign account 

for that period was $12,370. Swihart testified that Spencer 

spent about $118,000 on Wooten’s campaign, and 

Wooten actually paid back only about $102,000 of that 

amount.

Swihart testified David had a motive to bribe Wooten. 

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Swihart explained there was a connection between the 

money Stacy paid to Spencer and the money Spencer 

spent on behalf of the Wooten campaign, and there was a 

connection among Stacy, David, Spencer, and Wooten. 

Swihart testified bribery could occur without Stacy or 

David ever speaking directly to Wooten about the 

collusive plan. Based on the evidence he reviewed, 

Swihart testified David used Spencer as a barrier between 

Wooten and himself and Stacy. Swihart gave the example 

of the March 7, 2008 wire transfer of $10,000 from Stacy 

to Spencer. On March 7, 2008, Spencer and David were 

in communication, followed by David and Stacy 

communicating with one another. Stacy then provided 

instructions to her bank to wire money to Spencer’s bank 

account. One hour and eight minutes after the $10,000 

wire transfer was posted to Spencer’s account, the money 

was converted into a cashier’s check for payment of 

Clements’s $10,000 bonus following Wooten’s victory in 

the Republican primary. Swihart also testified that if 

David was screening Stacy from contact with Wooten by 

utilizing Spencer as a barrier, Stacy would have been 

involved in the collusive enterprise.

Jay Valentine

*25 Jay Valentine testified that in late 2006 or early 2007, 

David contacted him regarding Valentine becoming a 

sales vice president at TDI. In early 2007, David spoke to 

Valentine about being involved in a “nasty divorce” and a 

series of family law issues. Valentine thought that one of 

the people “causing [David] some trouble” was a local 

judge. David indicated to Valentine that he was doing 

some “advocacy work.” Valentine began working at TDI 

in November 2007. In February or March of 2008, 

Valentine had further conversations with David about his 

family law matters. David had Wooten campaign signs in 

his office, and he told Valentine that he was working to 

get Wooten elected. David told Valentine there was a 

judge by the name of Sandoval who had made an adverse 

ruling against David. According to Valentine, David said 

Wooten was going to change “the rulings” made in 

David’s family law matter.

David wanted to hire Spencer to work at TDI. David said 

several times that the reason he wanted to hire Spencer 

was because he was “able to fix problems.” David told 

Valentine that he had “hired Spencer to get a candidate to 

run against this judge” and that Spencer was the person 

who had “fixed his situation with the judge, and was 

going to get his situation reversed.”According to 

Valentine, David made those statements to Valentine and 

other employees of the TDI sales department several 

times. Valentine testified that Spencer also made 

comments to him about Spencer’s role in the judicial 

campaign. Spencer told Valentine that he was able to get 

Wooten elected and that “he owned her.” According to 

Valentine, Spencer said two or three times that he 

“owned” Wooten and “used that as a reason for why he 

was able to get things done” and an example of “the kind 

of stuff I can do.”

David was pushing Valentine to hire Spencer as a 

consultant who would facilitate meetings with executives 

of various corporations and help sell TDI’s product. 

Valentine objected to hiring Spencer because he did not 

think it made sense for the company to hire a “lobbyist,”

and the only people Spencer knew were politicians. 

Valentine told David, “Look, if I need to bribe a judge, 

[Spencer’s] my guy,” but Spencer cannot add value with 

regard to sales of the company’s product. Although other 

sales and marketing employees also opposed TDI hiring 

Spencer, David insisted, and Spencer was hired as a TDI 

consultant.

In March 2009, Valentine complained about Spencer to 

the TDI Board of Directors and demanded an outside 

investigation of Spencer by the Board based on an 

incident Valentine thought was a basis for TDI severing 

its relationship with Spencer. Valentine’s complaints 

about Spencer related to Spencer’s interaction with a 

female marketing director while on a business trip. In an 

email and memorandum setting forth his complaints about 

Spencer, Valentine also included information about the 

claims David and Spencer had made about getting 

Wooten elected and what Wooten was going to do in 

connection with David’s family law matters. David came 

to Spencer’s defense, and Valentine testified he knew his 

complaint about Spencer was not going to be taken 

seriously. TDI fired Valentine in April 2009. In June 

2009, Valentine filed an employment discrimination 

claim against TDI. In the employment discrimination 

complaint, Valentine asserted that David and Spencer had 

told him about their role in getting Wooten elected and 

bragged about bribing a judge. Valentine testified that the 

reason he included those claims in his employment 

discrimination complaint was to show David’s conflict of 

interest with regard to Spencer. Valentine testified that his 

employment discrimination claim against TDI was 

arbitrated, resulting in an arbitration award in his favor.

William Johnson

*26 William Johnson testified that he was CEO and 

owner of sixty-five to seventy percent of TDI. David 

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worked at TDI, but left the company in March or April 

2012. At the suggestion of David, TDI hired Spencer to 

resolve an issue related to TDI credit card debt, for which 

he was paid $5,000 by TDI. Later, David suggested to 

Johnson that Spencer could provide access to legislators 

and officials at the Texas Department of Information 

Resources that would facilitate marketing TDI’s products 

to the State. Johnson and David traveled to Austin, Texas 

to discuss the initiative with Spencer. As a result of this 

initiative, Spencer was paid $80,000 by TDI for work in 

obtaining a rider on a State budget that would facilitate 

acquisition by the State of data security technology. 

David then proposed that TDI set up a conference with 

Spencer in Washington, D.C. to speak to Spencer’s 

contacts in the federal sector.

Johnson testified that Jay Valentine was hired as the head 

of sales and marketing of TDI in 2007. Valentine had 

been well-recommended by David and two of the 

members of the TDI Board of Directors. In March 2009, 

Johnson received an email from Valentine detailing a 

complaint that Spencer had allegedly sexually harassed a 

female marketing director.13The email further described 

what Valentine believed was a conflict of interest 

involving David and Spencer, because TDI’s hiring of 

Spencer could be viewed as payback for Spencer’s 

valuable work for David personally. In a “memorandum”

to TDI, Valentine said Spencer and David had been 

bragging about unseating a judge who had ruled against 

David. Johnson testified that if Spencer said he saw 

Wooten campaign signs in David’s office, Johnson would 

not dispute that testimony.

Verdict

The jury found Stacy guilty of engaging in organized 

criminal activity, six counts of bribery, and money 

laundering. The trial court assessed punishment of ten 

years’ confinement and a fine of $10,000 as to each count, 

those sentences to run concurrently. The trial court 

suspended imposition of the sentences, and placed Stacy 

on community supervision for a period of ten years. The 

trial court required her to serve thirty days in county jail 

as a condition of her community supervision. Stacy filed 

this appeal of those convictions.

Bribery

In her first issue, Stacy asserts there is insufficient 

evidence to support her bribery convictions. In connection 

with each of the six bribery counts, the jury found Stacy 

offered, conferred, or agreed to confer a benefit to 

Wooten as consideration for Wooten’s filing to run for 

election, proceeding or continuing with a campaign for 

election as judge, or presiding over and issuing favorable 

rulings to Stacy or David in cases before her as judge.

Standard of Review

We review the sufficiency of the evidence under the 

standard set out in Jackson v. Virginia, 443 U.S. 307, 99 

S.Ct. 2781, 61 L.Ed.2d 560 (1979).Matlock v. State, 392 

S.W.3d 662, 667 (Tex.Crim.App.2013). We examine all 

the evidence in the light most favorable to the verdict and 

determine whether any rational trier of fact could have 

found the essential elements of the offense beyond a 

reasonable doubt. Jackson, 443 U.S. at 319; Matlock, 392 

S.W.3d at 667; see also Hooper v. State, 214 S.W.3d 9, 

12 (Tex.Crim.App.2007) (in assessing legal sufficiency of 

the evidence, we consider all the evidence in the light 

most favorable to the verdict and determine whether, 

“based on that evidence and reasonable inferences 

therefrom, a rational juror could have found the essential 

elements of the crime beyond a reasonable doubt”). This 

standard recognizes “the responsibility of the trier of fact 

fairly to resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic 

facts to ultimate facts.”Jackson, 443 U.S. at 319; see also 

Adames v. State, 353 S.W.3d 854, 860 

(Tex.Crim.App.2011). The standard is the same for both 

direct and circumstantial evidence cases; under this 

standard, circumstantial evidence is as probative as direct 

evidence and, alone, can be sufficient to establish guilt. 

Hooper, 214 S.W.3d at 13; Kutzner v. State, 994 S.W.2d 

180, 184 (Tex.Crim.App.1999).

The jury, as the fact finder, is entitled to judge the 

credibility of the witnesses, and can choose to believe all, 

some, or none of the testimony presented by the parties. 

Chambers v. State, 805 S.W.2d 459, 461 

(Tex.Crim.App.1991). We defer to the jury’s 

determinations of credibility, and may not substitute our 

judgment for that of the fact finder. Jackson, 443 U.S. at 

318–19; Brooks v. State, 323 S.W.3d 893, 899–900 

(Tex.Crim.App.2010) (plurality op.); King v. State, 29 

S.W.3d 556, 562 (Tex.Crim.App.2000) (in conducting 

legal sufficiency analysis, appellate court “may not 

re-weigh the evidence and substitute our judgment for that 

of the jury”). Evidence is not rendered insufficient simply 

because conflicting evidence is introduced. Matchett v. 

State, 941 S.W.2d 922, 936 (Tex.Crim.App.1996).“An 

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appellate court determines whether the necessary 

inferences are reasonable based upon the combined and 

cumulative force of all the evidence when viewed in the 

light most favorable to the verdict.”Ervin v. State, 331 

S.W.3d 49, 55 (Tex.App.-Houston [1st Dist.] 2010, pet. 

ref’d). “[I]t is not necessary that every fact point directly 

and independently to the defendant’s guilt; it is enough if 

the conclusion is warranted by the combined and 

cumulative force of all the incriminating circumstances.”

Johnson v. State, 871 S.W.2d 183, 186 

(Tex.Crim.App.1993). Any inconsistencies in the 

evidence are resolved in favor of the verdict. Matson v. 

State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991).

Analysis

*27 Section 36.02 of the penal code provides, in pertinent 

part, that a person commits bribery if:

he intentionally or knowingly offers, confers, or agrees 

to confer on another ...:

(1) any benefit as consideration for the recipient’s 

decision, opinion, recommendation, vote, or other 

exercise of discretion as a public servant, party 

official, or voter;

(2) any benefit as consideration for the recipient’s 

decision, vote, recommendation, or other exercise of 

official discretion in a judicial or administrative 

proceeding....

TEX. PENAL CODE ANN. § 36.02(a)(1) & (2) (West 

2011).14 It is no defense to prosecution that a person 

whom the actor sought to influence was not qualified to 

act in the desired way, whether because she had not yet 

assumed office, she lacked jurisdiction, or for any other 

reason. Id. § 36.02(b). The offense of bribery is complete 

when the offer or solicitation is made.Martinez v. State,

696 S.W.2d 930, 933 (Tex.App.-Austin 1985, pet. ref’d).

A person acts intentionally with respect to the nature of 

her conduct or to the result of her conduct when it is her 

conscious objective or desire to engage in the conduct or 

cause the result. TEX. PENAL CODE ANN. § 6.03(a)

(West 2011). A person acts knowingly with respect to the 

nature of her conduct or to circumstances surrounding her 

conduct when she is aware of the nature of her conduct or 

that the circumstances exist. Id. § 6.03(b). A person acts 

knowingly with respect to a result of her conduct when 

she is aware that her conduct is reasonably certain to 

cause the result. Id.“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.”Mustard v. State, 711 S.W.2d 71,

75 (Tex.App.-Dallas 1986, pet. ref’d); see also Hubbard 

v. State, 668 S.W.2d 419, 420–21 (Tex.App.-Dallas 1984)

(bribery focuses on the mental state of the actor, and is 

complete if a private citizen, by offering, conferring, or 

agreeing to confer, or a public servant or party official, by 

soliciting, accepting, or agreeing to accept, intends an 

agreement), pet. granted and remanded on other 

grounds,739 S.W.2d 341 (Tex.Crim.App.1987). Intent 

may be inferred from circumstantial evidence such as 

acts, words, and conduct of the accused. Guevara v. State,

152 S.W.3d 45, 50 (Tex.Crim.App.2004); Hart v. State,

89 S.W.3d 61, 64 (Tex.Crim.App.2002) (intent may be 

inferred from accused’s acts, words, and conduct); see 

also Conner v. State, 67 S.W.3d 192, 197 

(Tex.Crim.App.2001). Whether the person possessed the 

requisite intent to commit an offense is most often proven 

through the circumstantial evidence surrounding the 

crime.Sholars v. State, 312 S.W.3d 694, 703

(Tex.App.-Houston [1st Dist.] 2009, pet. ref’d).

In this case, the jury was charged that Stacy could be 

found guilty as a principal or as a party to the offenses of 

bribery. Under the law of parties, each party to an offense 

may be charged with the commission of the offense.TEX. 

PENAL CODE ANN. § 7.01(b) (West 2011). A person is 

responsible for the criminal conduct of another person if 

“acting with intent to promote or assist the commission of 

the offense, he solicits, encourages, directs, aids, or 

attempts to aid the other person to commit the offense.”Id.

§ 7.02(a)(2) (West 2011). When a party is not the 

“primary actor,” the State must prove conduct constituting 

an offense plus an act by the defendant alone with the

intent to promote or assist such conduct. Beier v. State,

687 S.W.2d 2, 3 (Tex.Crim.App.1985). The jury may 

consider “events occurring before, during and after the 

commission of the offense, and may rely on actions of the 

defendant which show an understanding and common 

design to do the prohibited act.”Ransom v. State, 920 

S.W.2d 288, 302 (Tex.Crim.App.1996). Circumstantial 

evidence may suffice to show the defendant is a party to 

the offense. Id.; Miller v. State, 83 S.W.3d 308, 313 

(Tex.App.-Austin 2002, pet. ref’d).“Since an agreement 

between parties to act together in a common design can 

seldom be proved by words, the State must rely on the 

actions of the parties, shown by direct or circumstantial 

evidence, to establish an understanding or common design 

to commit the offense .”Miller, 83 S.W.3d at 314. 

Because the charge authorized the jury to convict Stacy as 

a principal or a party, the verdict will be upheld if the 

evidence was sufficient on either of those theories. See 

Sorto v. State, 173 S.W.3d 469, 472 

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(Tex.Crim.App.2005).

Allegation Bribery Statute Does Not Support Conviction

*28 Stacy contends the bribery statute does not support a 

conviction for offering, conferring, or agreeing to confer a 

benefit to Wooten as consideration for Wooten’s decision 

to become a judicial candidate, because a potential 

candidate or someone who has yet to become a candidate 

is not a “public servant” as referenced in the bribery 

statute. “Public servant” means:

a person elected, selected, 

appointed, employed, or otherwise 

designated as one of the following, 

even if he has not yet qualified for 

office or assumed his duties: (A) an 

officer, employee, or agent of 

government; ... (C) an arbitrator, 

referee, or other person who is 

authorized by law or private written 

agreement to hear or determine a 

cause or controversy; ... (E) a 

candidate for nomination or 

election to public office....

TEX. PENAL CODE ANN. § 1.07(41) (West 

Supp.2013). Assuming, without deciding, that Stacy could 

not be guilty of bribery for offering, conferring, or 

agreeing to confer a benefit on Wooten as consideration 

for Wooten’s decision to become a judicial candidate, the 

assumption would not be dispositive with respect to the 

legal sufficiency of the evidence to support the bribery 

convictions if the jury could have found Stacy guilty of 

bribery for offering, conferring, or agreeing to confer a 

benefit to Wooten as consideration for Wooten 

proceeding or continuing with a campaign for election as 

judge or for favorable rulings in cases involving Stacy or 

David. “[W]hen the trial court’s charge authorizes the 

jury to convict on more than one theory, as it did in this 

case, the verdict of guilty will be upheld if the evidence is 

sufficient on any one of the theories.”See Guevara, 152 

S.W.3d at 49; see alsoTEX. ELEC.CODE ANN. § 

251.001(1) (West 2010) (“candidate” means a “person 

who knowingly and willingly takes affirmative action for 

purpose of gaining nomination or election to public office 

or for the purpose of satisfying financial obligations 

incurred by the person in connection with the campaign 

for nomination or election”).

Allegation Evidence is Insufficient to Support 

Conviction

*29 Stacy argues that while she was charged under the 

bribery statute with offering, conferring, or agreeing to 

confer a benefit to Wooten in consideration for Wooten 

proceeding or continuing with a campaign for judge, the 

evidence does not support that charge because the 

evidence does not show Stacy had the requisite intent or 

that Wooten “even considered, at any time, getting out of 

the race after she made the decision” to become a 

candidate.15 Additionally, Stacy argues that while she was 

charged under the bribery statute with offering, 

conferring, or agreeing to confer a benefit to Wooten in 

consideration for Wooten’s favorable rulings in cases 

involving Stacy or David, the evidence does not support 

that charge because the evidence does not show Stacy had 

the requisite intent or that Stacy knew that any benefit to 

Wooten was supposed to constitute a bilateral agreement 

for favorable rulings.16 We are unpersuaded by these 

arguments.

Stacy acknowledged in her appellate briefing that there 

“was certainly evidence that David believed that Judge 

Sandoval was a bad judge and was unfairly biased against 

him” and there “was also evidence that [David] wanted 

Judge Sandoval to be defeated.”From this evidence, a 

rational jury could have reasonably concluded that David 

wanted Sandoval unseated in the March 2008 Republican 

primary.

The evidence showed Spencer traveled from his home 

near Austin, Texas to meet with David and Stacy on 

October 1, 2007. Shortly after that meeting, Spencer 

reviewed the court file in David’s divorce case and 

SAPCR and began contacting individuals in Collin 

County to find a candidate to run against Sandoval for the

office of judge of the 380th Judicial District Court. The 

deadline for filing as a candidate in that race was January 

2, 2008. Therefore, there was a limited amount of time to 

locate a candidate. Because there was no Democrat 

candidate in that judicial race, the winner of the 

Republican primary would be the elected judge following 

the general election in the fall of 2008.

In his discussions with Wooten, Spencer expressed his 

belief that a successful campaign to unseat Sandoval 

would require $100,000 to $150,000, and Wooten 

believed that was a reasonable estimate. The primary 

election was to be held only two months after Wooten 

declared her candidacy, and the evidence indicated it was 

not likely Wooten could solicit significant campaign 

contributions in that limited period of time, particularly 

since the majority of campaign contributions in judicial 

races are made by lawyers and lawyers are not readily 

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inclined to make contributions to a candidate seeking to 

unseat an incumbent judge. Despite this fundraising 

challenge, Wooten agreed to run for election, and she 

appointed Spencer, who had never before managed a 

political campaign, to serve as her campaign manager.

In her appellate briefing, Stacy acknowledged that “the 

evidence shows that [Stacy] made payments to [Spencer] 

and that [Spencer] used a large portion of those payments 

to make campaign expenditures for the Wooten campaign 

at times when the campaign had not raised enough money 

to cover them.”17For example, the day following 

Wooten’s January 2, 2008 declaration of her candidacy, 

Stacy attempted to wire transfer $50,000 to Spencer. 

When that wire transfer was unsuccessful, Stacy wire 

transferred $50,000 the following day, January 4, 2008. 

Before that wire transfer, Spencer had $2.39 in his bank 

account. The evidence establishes Spencer immediately 

began utilizing money transferred by Stacy to pay 

campaign consultant Clements and other campaign 

expenses. Spencer testified that without the money wire 

transferred by Stacy, he would not have been able to pay 

Clements $7,500 on January 7, 2008, and $7,500 on 

January 8, 2008.

Sandoval’s February 4, 2008 Campaign Finance Report 

indicated Sandoval had raised $12,575 in campaign 

contributions, had expended $8,997.08, and had a balance 

of $4,231.37 in his campaign account. The bank records 

for Wooten’s campaign account show that on February 4, 

2008, the account had a balance of $2,366, and on 

February 5, 2008, the account had a balance of $1,933. 

Despite the fact Sandoval had received significantly 

greater campaign contributions than Wooten, Spencer told 

Clements he was not impressed with the amount Sandoval 

had raised. Spencer also communicated to Wooten and 

Clements that Sandoval was not “in a position to match 

our resources.”Clements interpreted Spencer’s email to 

mean that there were people Spencer could go to for 

money.

*30 The evidence showed numerous communications 

between Spencer, David, and Stacy at or about the time of 

transfers of funds from Stacy to Spencer. For example, on 

January 29, 2008, the night before the second payment by 

Stacy to Spencer, Spencer telephoned David’s cell phone. 

Immediately thereafter, either David or Stacy telephoned 

Spencer from David and Stacy’s home phone. Spencer 

then telephoned Wooten. After the telephone call to 

Wooten, Spencer telephoned David and Stacy’s home. 

Stacy made the second payment to Spencer on January 

30, 2008, and Spencer deposited that payment to his 

account on February 1, 2008. That payment posted to 

Spencer’s bank account on February 4, 2008. On 

February 5, 2008, Spencer sent an email to Wooten 

indicating that Sandoval “cannot match our resources,”

even though Wooten had raised only $3,620 for her 

campaign at that time. On February 14, 2008, Stacy made 

her third payment to Spencer. On that day, Spencer 

exchanged text messages by phone with David between 

5:12 p.m. and 5:23 p.m. Between 5:34 p.m. and 5:46 p.m., 

Spencer then communicated in succession with Wooten, 

Clements, and David. Stacy’s third payment to Spencer 

posted to his account on February 15, 2008. On February 

26, 2008, Stacy made her fourth payment to Spencer. At 

4:41 a.m. on that day, Spencer’s assistant confirmed to 

Spencer by email that radio advertising time had been 

purchased for Wooten’s campaign. At 5:24 a.m. and 6:59 

a.m ., David received text messages from Spencer. At 

9:17 a.m., Stacy sent instructions to Tolleson Private 

Bank to wire $25,000 to Spencer. At 2:14 p.m., the wire 

transfer was posted to Spencer’s account. Swihart testified 

those funds from Stacy were immediately used for 

payment of Wooten campaign expenses. At 2:37 p.m. and 

2:53 p.m., Spencer’s wife purchased cashier’s checks for 

payment of Wooten campaign expenses from the funds 

wired to Spencer’s account by Stacy.

On March 4, 2008, Wooten won the Republican primary. 

On March 7, 2008, Stacy made the fifth payment to 

Spencer. Between 7:07 a.m. and 8:29 a.m. on that day, 

Spencer text-messaged four times with David. Clements 

text-messaged Spencer at 8:17 a.m. David and Stacy had 

three phone conversations between 8:45 a.m. and 9:10 

a.m. Between 9:23 a.m. and 10:02 a.m., Spencer and 

David exchanged thirteen text messages. At 10:47 a.m., 

Stacy attempted to reach David by telephone. At 10:58 

a.m., Stacy sent instructions to Tolleson Private Bank to 

wire $10,000 to Spencer. At 11:40 a.m., David 

text-messaged Spencer. At 2:51 p.m., the wire transfer of 

$10,000 posted to Spencer’s bank account. Between 3:21 

p.m. and 3:52 p.m., Spencer and David exchanged eleven 

text messages. At 3:59 p.m., Spencer’s wife purchased a 

cashier’s check made payable to Clements in the amount 

of $10,000. Between 6:24 p.m. and 6:31 p.m. on March 

13, 2008, the day of the sixth payment from Stacy to 

Spencer, Spencer text messaged David six times. At 9:41 

p.m., Stacy sent instructions by email to Tolleson Private 

Bank to wire Spencer $15,000. On March 14, 2008, the 

sixth payment from Stacy to Spencer in the amount of 

$15,000 was posted to Spencer’s bank account.

Spencer testified he kept Stacy removed from his work on 

Wooten’s campaign. However, evidence of the consulting 

agreement between Spencer and Stacy and a summary of 

invoices purportedly related to the agreement were 

introduced in evidence. The consulting agreement is dated 

prior to Spencer’s meeting with David and Stacy where 

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his consulting services were first purportedly discussed. 

The consulting agreement, dated October 1, 2007, was 

strikingly similar to Spencer’s October 15, 2009 

engagement letter with TDI. Both agreements include an 

identical phrase relating solely to TDI: “[a]ny additional 

time spent on TDI’s behalf is part and parcel to, and 

inclusive of this engagement.”Spencer admitted when 

testifying at trial that when he left the October 2, 2007 

meeting with David and Stacy, he did not know the name 

of David’s employer.18The August 1, 2008 “summary”

invoice for purported consulting services rendered by 

Spencer did not apply a credit for the $50,000 wire 

transfer from Stacy to Spencer on January 4, 2008, and 

the $25,000 transfer on February 26, 2008 from Stacy to 

Spencer did not appear as a credit on the invoice, but was 

handwritten on Stacy’s copy of the invoice. The work 

product purportedly produced by Spencer pursuant to the 

consulting agreement was insubstantial, especially in light 

of the generous compensation of $25,000 for each of the 

four “projects” outlined in the consulting agreement. 

Further, the evidence indicated that Stacy purportedly 

paid Spencer for “projects” at times when she had not 

been invoiced for the work and Spencer had not provided 

any work product. Stacy transferred $150,000 to Spencer 

between January 4, 2008 and March 14, 2008, although 

Spencer testified he was to be paid $25,000 for each of 

four “projects,” which would total only $100,000 under 

the consulting agreement.

*31 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. 

On this record, including the evidence concerning the six 

transfers of funds from Stacy to Spencer and the 

communications among Spencer, David, and Stacy at or 

about the time of the transfers, a rational jury could have 

reasonably inferred that Stacy intentionally or knowingly, 

either as the primary actor or a party, offered, conferred, 

or agreed to confer a benefit, as to each of her transfers of 

funds to Spencer, as consideration for Wooten’s decision 

to proceed or continue with a campaign to unseat 

Sandoval through the Republican primary.

Although Spencer denied stating that he “owned” Wooten 

or that Wooten was going to “fix” David’s divorce, 

Valentine testified Spencer said two or three times that he 

“owned” Wooten, and “used that as a reason for why he 

was able to get things done” and an example of “the kind 

of stuff [he could] do.”Valentine testified David told him 

that he had “hired Spencer to get a candidate to run 

against this judge” and that Spencer had “fixed [David’s] 

situation with the judge, and was going to get his situation 

reversed.”The jury heard Johnson’s testimony regarding 

Valentine’s “memorandum” in which he said Spencer and 

David had been bragging about unseating a judge who 

had ruled against David and Valentine’s email to Johnson 

in which he expressed his concern that TDI’s hiring 

Spencer could be seen as a conflict of interest, that is, as 

payback for Spencer’s role in unseating the judge 

presiding over David’s divorce and SAPCR.

The jury also heard evidence concerning a June 2009 

email exchange between Spencer and David regarding an 

opinion of the United States Supreme Court concerning 

judge recusal. See Caperton, 556 U.S. 868, 129 S.Ct. 

2252, 173 L.Ed.2d 1208. The email included a statement 

from an article discussing Caperton, stating that “judges 

who receive campaign contributions large enough to 

create the appearance of bias should recuse 

themselves....” In the email, Spencer stated to David that 

he thought David would understand why he was 

interested in the subject matter of that case, although 

Spencer denied that he and David were interested in 

Caperton because Stacy’s money was used to finance 

Wooten’s campaign.

*32 After Wooten became the judge presiding over 

David’s SAPCR, David’s motion to modify was set to be 

heard by Wooten. However, shortly before the hearing on 

the SAPCR, Benavides appeared in the case on behalf of 

Jennifer. This appearance as counsel would result in 

Wooten’s recusal because Wooten had indicated an intent 

to recuse herself for a period of nine months after January 

2009 from cases in which Benavides appeared. The 

evidence showed David contacted Spencer regarding 

Benavides appearing in the SAPCR, and Spencer, in turn, 

contacted Benavides and Basinger and told them to “get 

off this case,” despite not being able to provide a 

satisfactory reason. The evidence showed numerous other 

contacts between Spencer and David shortly after 

Benavides’s appearance in the SAPCR. Further, the 

evidence showed that shortly after Benavides appeared in 

the SAPCR, Spencer contacted the office of Judge 

Oldner, the administrative judge. On this record, 

including evidence of the efforts of Spencer and David to 

avoid Wooten’s recusal in the SAPCR, the effort of 

Spencer to make contact with the administrative judge 

that had advised Wooten to recuse herself, and Stacy’s six 

transfers of funds to Spencer and the communications 

among Spencer, David, and Stacy at or about the time of 

the transfers, a rational jury could have reasonably 

inferred that Stacy, intentionally or knowingly, either as 

the primary actor or a party, offered, conferred, or agreed 

to confer a benefit, as to each of her transfers of funds to 

Spencer, as consideration for favorable rulings by Wooten 

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in cases in which David was a party. Further, the evidence 

showed that despite Benavides and Basinger appearing in 

the suit brought by Stacy against Jennifer and Suster that 

had been transferred to Wooten’s court, Wooten did not 

voluntarily recuse herself in that lawsuit. On this record, 

including evidence of Wooten’s failure to recuse herself 

from Stacy’s lawsuit and Stacy’s six transfers of funds to 

Spencer and the communications among Spencer, David, 

and Stacy at or about the time of the transfers, a rational 

jury could have reasonably inferred that Stacy, 

intentionally or knowingly, either as the primary actor or 

a party, offered, conferred, or agreed to confer a benefit to 

Wooten in consideration for favorable rulings by Wooten 

in cases in which Stacy was a party.

Stacy argues that the evidence does not show Stacy knew 

that any benefit to Wooten was supposed to constitute a 

bilateral agreement for favorable rulings by Wooten in 

cases in which David and Stacy were parties. Stacy cites 

McCallum v. State, 686 S.W.2d 132 

(Tex.Crim.App.1985), for the proposition that the phrase 

“as consideration for,” as contained in the bribery statute, 

“requir[es] a bilateral agreement—in effect an illegal 

contract to exchange a benefit as consideration for the 

performance of an official function.”Id. at 136. However, 

McCallum is distinguishable from the instant case. “In 

McCallum, the indictment alleged only that the defendant 

conferred the benefit on the recipient. Under that 

indictment, proof that the defendant offered the alleged 

benefit was not sufficient to convict.”Martinez, 696 

S.W.2d at 932. Here, Stacy was indicted for offering, 

conferring, and agreeing to confer a benefit to Wooten as 

consideration for Wooten’s running for election, 

proceeding or continuing with a campaign for election, 

and issuing favorable rulings in cases in which Stacy or 

David are parties. The jury was charged that they could 

find Stacy guilty of each count of bribery if they found 

she either offered, conferred, or agreed to confer a benefit 

to Wooten as consideration for Wooten’s running for 

election, proceeding or continuing with a campaign for 

election, and issuing favorable rulings in cases in which 

Stacy or David are parties. See id. at 932–33 (“Common 

sense dictates that when it is alleged and proved that the 

defendant offered or solicited a proscribed benefit, it is 

not necessary to further prove that the offer or solicitation 

resulted in a bilateral agreement or unlawful contract with 

the other party.”); see also Valencia v. State, No. 

13–02–020–CR, 2004 WL 1416239, at *2

(Tex.App.-Corpus Christi June 24, 2004, pet. ref’d) 

(mem. op., not designated for publication).

Political Contribution Exception

*33 Reaching unassigned error, the dissent argues the 

State failed to prove the transfers from Stacy were not 

political contributions subject to section 36.02(d) of the 

penal code. Stacy did not raise as error a contention that 

the political contribution exception requires the reversal 

of her convictions. The dissent recognizes that there must 

be an exceptional reason for entertaining unassigned error 

but concludes it is appropriate in this case. We disagree 

that this case presents an appropriate circumstance for 

exercising our discretion to address, in the interest of 

justice, the argument made by the dissent. See Pfeiffer v. 

State, 363 S.W.3d 594, 599 (Tex.Crim.App.2012)

(“[A]ppellate courts may review unassigned error-a claim 

that was preserved in the trial court but was not raised by 

either party on appeal.”) (emphasis added). While an 

appellate court may in its discretion address unassigned 

error, it is rarely required to do so, and the dissent does 

not argue this is a case involving fundamental unassigned 

error that an appellate court must recognize on its own. 

Nevertheless, because the dissent raises the unassigned 

error, we will address the merits of the dissent’s 

argument.

Under section 36.02(d), “[i]t is an exception to the 

application of Subdivisions (1), (2), and (3) of Subsection 

(a) that the benefit is a political contribution as defined by 

Title 15, Election Code, or an expenditure made and 

reported in accordance with Chapter 305, Government 

Code.”TEX. PENAL CODE ANN. § 36.02(d). As the 

dissent acknowledges, the bribery counts specifically 

alleged that the benefits Stacy offered to, conferred on, or 

agreed to confer on Wooten were benefits “other than 

political contribution[s] as defined by Title 15, Election 

Code, or ... expenditures[s] made and reported in 

accordance with Chapter 305 of the Government Code.”In 

accordance with the bribery counts, the jury charge 

instructed the jury that it could find Stacy guilty of 

bribery only if the transfers were “other than ... political 

contribution[s] as defined by Title 15, Election Code, or 

... expenditure[s] made and reported in accordance with 

Chapter 305 of the Government Code.”The jury charge 

also instructed the jury about the following definitions of 

“contribution,” “political contribution,” “campaign 

contribution,” and “expenditure”:

*34 “Contribution” means a direct or indirect transfer 

of money, goods, services, or any other thing of value 

and includes an agreement made or other obligation 

incurred, whether legally enforceable or not, to make a 

transfer. The term includes a loan or extension of 

credit, other than those expressly excluded by law, and 

a guarantee of a loan or extension of credit, including a 

loan described by law. The term does not include a loan 

made in the due course of business by a corporation 

that is legally engaged in the business of lending 

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money and that has conducted the business 

continuously for more than one year before the loan is 

made or an expenditure required by law to be reported.

“Political contribution” means a campaign contribution 

or an officeholder contribution.

“Campaign contribution” means a contribution to a 

candidate or political committee that is offered or given 

with the intent that it be used in connection with a 

campaign for elective office or on a measure. Whether 

a contribution is made before, during, or after an 

election does not affect its status as a campaign 

contribution.

“Expenditure” means a payment, distribution, loan, 

advance, reimbursement, deposit, or gift of money or 

any thing of value and includes a contract, promise, or 

agreement, whether or not legally enforceable, to make 

an expenditure.

Each of those definitions essentially tracks the language 

of the applicable statute, seeTEX. ELEC.CODE ANN. § 

251.001, and therefore properly instructed the jury.19As to 

each of the six bribery counts, the jury found Stacy guilty 

as alleged in the indictment.

The evidence showed Stacy did not transfer funds directly 

to Wooten’s campaign; Stacy’s contention was that she 

transferred funds to Spencer to compensate him for his 

work under the purported consulting agreement. Steusloff 

testified as to what constitutes a lawful political 

contribution under the election code in a race for a Collin 

County district court bench in 2008. According to 

Steusloff, a political contribution to a candidate for a 

Collin County bench could not exceed $2,500 for the 

election cycle. Each of the six transfers of funds from 

Stacy to Spencer that were funneled to the Wooten 

campaign vastly exceeded the amount of an allowable 

political contribution to a judicial candidate, and the 

transfers of funds were not reported by Wooten as 

political contributions under the election code on any 

campaign finance report or amended campaign finance 

report filed with the Ethics Commission or as loans under 

the election code on any personal financial statement filed 

with the Ethics Commission. SeeTEX. ELEC.CODE 

ANN. § 253.155(b) (West 2010).

Based on the applicable standard of review, a rational jury 

could have reasonably found that Stacy’s payments were 

not political contributions as defined by the statute. Stacy 

does not argue otherwise on appeal.

Conclusion

*35 The jury was entitled to judge the weight of the 

evidence, resolve conflicts in the testimony, and draw 

reasonable inferences from basic facts to ultimate facts. 

See Jackson, 443 U.S. at 319. Based on our review of the 

record and viewing the evidence in the light most 

favorable to the jury’s findings of guilt, we conclude that 

as to each conviction for bribery, the evidence is 

sufficient to allow a rational jury to find beyond a 

reasonable doubt that Stacy intentionally or knowingly 

offered, conferred, or agreed to confer on Wooten a 

benefit as consideration for Wooten proceeding or 

continuing with a campaign for election to the 380th 

Judicial District Court or for favorable rulings in cases in 

which Stacy or David were parties. See id. at 318–19; see 

also Hooper, 214 S.W.3d at 13; see alsoTEX. PENAL 

CODE ANN. § 36.02(a)(1), (2). Further, viewing the 

evidence in the light most favorable to the jury’s findings 

of guilt, we conclude the evidence is sufficient to allow a 

rational jury to find beyond a reasonable doubt that, as to 

each conviction for bribery, Stacy acted with intent to 

promote or assist in the bribery, and solicited, 

encouraged, directed, aided, or attempted to aid Spencer 

or David in offering, conferring, or agreeing to confer on 

Wooten a benefit as consideration for Wooten proceeding 

or continuing with a campaign for election to the 380th 

Judicial District Court or for favorable rulings in cases in 

which Stacy or David were parties. SeeTEX. PENAL 

CODE ANN. § 7.02(a)(2); see also Hooper, 214 S.W.3d 

at 14, n3; Hart, 89 S.W.3d 61, 64 (Tex.Crim.App.2002)

(direct evidence of intent may be inferred from any facts 

which tend to prove its existence, including acts, words, 

and conduct of the accused, and jury may infer knowledge 

from such evidence) (quoting Manrique v. State, 994 

S.W.2d 640, 649 (Tex.Crim.App.1999)). We resolve 

Stacy’s first issue against her.

Engaging in Organized Criminal Activity and Money 

Laundering

In her second issue, Stacy contends the evidence is 

insufficient to support her conviction of engaging in 

organized criminal activity because there is insufficient 

evidence of the predicate offenses of bribery, money 

laundering,20 or tampering with a government record21

with which she was charged. In her third issue, Stacy 

argues that, because there was insufficient evidence of the 

predicate offense of bribery, there is insufficient evidence 

to support her conviction of money laundering.

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

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was sufficient evidence to support the jury finding Stacy 

guilty of the offenses of bribery. Accordingly, having 

concluded there was sufficient evidence of the predicate 

offense of bribery, we necessarily reject Stacy’s 

contentions that there was insufficient evidence to support 

her convictions for engaging in organized criminal 

activity and money laundering because there was 

insufficient evidence of the predicate offense of bribery. 

We resolve Stacy’s second and third issues against her.

Exclusion of Evidence

*36 In her fourth issue, Stacy contends the trial court 

reversibly erred by excluding from evidence the findings 

of fact and conclusions of law signed by the judge hearing 

the SAPCR case involving David and Jennifer after 

Wooten recused herself. On appeal, she argues that the 

excluded evidence “completely vindicated David” and 

“undercut the charge that [David] had to bribe a judge to 

obtain favorable rulings.”According to Stacy, Judge 

McCraw’s findings “undo much of what Sandoval had 

done,” and “undercut[ ] any alleged evidence that [David] 

attempted to bribe, or intended to bribe” Wooten, because 

the evidence shows David did not need to do so.

Before trial, the State objected to any evidence being 

admitted concerning rulings made by judges in the civil 

cases involving David, Stacy, and Jennifer, subsequent to 

Wooten recusing herself in the SAPCR case, as irrelevant 

to the allegations against Stacy that she “offered a bribe to 

Suzanne Wooten to encourage her to run for Judge, to 

continue to run for Judge once she filed to run, unseat 

Judge Sandoval from the bench and/or issue favorable 

rulings for Stacy and David.”The trial court granted the 

State’s motion in limine concerning reference to court 

rulings after Wooten ceased serving as the presiding judge 

on the cases.

Stacy filed a bill of exception containing Judge John L. 

McCraw, Jr.’s findings of fact and conclusions of law 

signed after Wooten recused herself from the SAPCR 

involving David and Jennifer. Stacy argued to the trial 

court that the findings of fact should be admitted in 

evidence to show Jennifer was the “one being stubbornly 

litigious.” The trial court ruled that the proffered evidence 

was not relevant.

We review the trial court’s decision to admit or exclude 

evidence under an abuse of discretion standard. Martinez 

v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010). The 

trial court abuses its discretion when its ruling is arbitrary, 

unreasonable, or without reference to any guiding rules or 

principles. Lyles v. State, 850 S.W.2d 497, 502 

(Tex.Crim.App.1993). The trial court does not abuse its 

discretion unless its determination lies outside the zone of 

reasonable disagreement. Martinez, 327 S.W.3d at 736.

Stacy’s argument on appeal does not comport with her 

argument for admission of the evidence at trial. At trial, 

she did not argue that the evidence should be admitted to 

undercut the charge that David had to bribe a judge to 

obtain favorable rulings, as she now argues on appeal. 

Instead, the argument advanced at trial for admission of 

the evidence was to show Jennifer was the “stubbornly 

litigious” individual in the SAPCR.

An appellate issue involving a proffer of evidence, in 

contrast to an issue involving an objection to evidence, 

must nevertheless satisfy the preservation-of-error 

requirements. Reyna v. State, 168 S.W.3d 173, 179 

(Tex.Crim.App.2005). To preserve an issue for appellate 

review, rule 33.1 of the rules of appellate procedure 

requires the appellant to have made “a timely request, 

objection, or motion that stated the grounds for the ruling 

that the complaining party sought from the trial court with 

sufficient specificity to make the trial court aware of the 

complaint, unless the specific grounds were apparent from 

the context.”TEX.R.APP. P. 33.1(a)(1)(A). Arguments on 

appeal must comport with the arguments made at trial and 

must bring to the trial court’s attention the very complaint 

that is now made on appeal. See Reyna, 168 S.W.3d at 

177. “[I]t is not enough to tell the judge that evidence is 

admissible. The proponent, if he is the losing party on 

appeal, must have told the judge why the evidence was 

admissible.”Id. Stacy may not, for the first time on 

appeal, urge error not raised at trial. The explanation 

given at trial for admissibility must match the one urged 

on appeal. See Martinez v. State, 91 S.W.3d 331, 336 

(Tex.Crim.App.2002) (under rule of appellate procedure 

33.1, issue is whether complaining party on appeal 

brought to trial court’s attention the very complaint that 

party is making on appeal).22

Stacy did not articulate to the trial court her assertion that 

the findings of fact and conclusions of law signed after 

Wooten recused herself was evidence David did not 

attempt or intend to bribe Wooten because the evidence 

showed David did not need to bribe Wooten.23Therefore, 

the trial court never had the opportunity to rule upon that 

specific rationale for admissibility. Because Stacy did not 

raise in the trial court the argument she now makes on 

appeal, she forfeited this appellate challenge to the trial 

court’s refusal to admit that evidence. See id.We resolve 

Stacy’s fourth issue against her.

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Conclusion

*37 Having resolved Stacy’s four issues against her, we 

affirm the trial court’s judgments.

FITZGERALD, J., dissenting.

DISSENTING OPINION

Dissenting Opinion by Justice FITZGERALD.

*37 I dissent from the majority’s opinion and judgment 

because the evidence is insufficient to support appellant’s 

convictions.

With respect to the bribery charges at the heart of this 

case, this case is most unusual because the State’s 

evidence is not merely insufficient—it affirmatively 

negates an essential element of the bribery charges and 

proves appellant not guilty. To convict appellant under 

the penal-code sections relied on by the State, sections 

36.02(a)(1) and (a)(2), the State had to prove that certain 

transfers of funds by appellant were not political 

contributions. But the State’s own theory of the case was 

that the transfers were political contributions-monies 

intended to be spent on a particular judicial candidate’s 

campaign for office. Accordingly, the State could not 

properly charge appellant under sections 36.02(a)(1) and 

(a)(2), yet it did. Only section 36.02(a)(4) deals with 

political contributions of the sort involved in this case, 

and that section carries considerably more onerous 

requirements than the State was required to prove under 

sections 36.02(a)(1) and (a)(2) in this case.

I. BRIBERY

A. Applicable law

Appellant was convicted of six counts of bribery. The 

bribery statute provides as follows:

(a) A person commits an offense if he intentionally or 

knowingly offers, confers, or agrees to confer on 

another, or solicits, accepts, or agrees to accept from 

another:

(1) any benefit as consideration for the recipient’s 

decision, opinion, recommendation, vote, or other 

exercise of discretion as a public servant, party 

official, or voter;

(2) any benefit as consideration for the recipient’s 

decision, vote, recommendation, or other exercise of 

official discretion in a judicial or administrative 

proceeding;

(3) any benefit as consideration for a violation of a 

duty imposed by law on a public servant or party 

official; or

(4) any benefit that is a political contribution as 

defined by Title 15, Election Code, or that is an 

expenditure made and reported in accordance with 

Chapter 305, Government Code, if the benefit was 

offered, conferred, solicited, accepted, or agreed to 

pursuant to an express agreement to take or withhold 

a specific exercise of official discretion if such 

exercise of official discretion would not have been 

taken or withheld but for the benefit; 

notwithstanding any rule of evidence or jury 

instruction allowing factual inferences in the absence 

of certain evidence, direct evidence of the express 

agreement shall be required in any prosecution under 

this subdivision.

(b) It is no defense to prosecution under this section 

that a person whom the actor sought to influence was 

not qualified to act in the desired way whether because 

he had not yet assumed office or he lacked jurisdiction 

or for any other reason.

*38 (c) It is no defense to prosecution under this 

section that the benefit is not offered or conferred or 

that the benefit is not solicited or accepted until after:

(1) the decision, opinion, recommendation, vote, or 

other exercise of discretion has occurred; or

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

(d) It is an exception to the application of Subdivisions 

(1), (2), and (3) of Subsection (a) that the benefit is a 

political contribution as defined by Title 15, Election 

Code, or an expenditure made and reported in 

accordance with Chapter 305, Government Code.

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

second degree.1

The court of criminal appeals has explained that the 

phrase “as consideration for” means that the accused 

offered or conferred the benefit “as an inducement to an 

illegal contract, that of bribery.”2

When the allegation is 

that the accused actually conferred the benefit, the statute 

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requires “a bilateral arrangement—in effect an illegal 

contract to exchange a benefit as consideration for the 

performance of an official function.”3

The McCallum court 

favorably quoted commentary from the Model Penal 

Code in which the drafters opined on the significance of 

the “consideration” requirement in modern bribery 

statutes: “This is the more conventional formula in 

bribery legislation, and prevents application of the 

bribery sanction to situations where gifts are given in 

mere hope of influencing, without any agreement by the 

donee.”4

Even when the conduct made the basis of a 

charge is an offer instead of a completed transfer of a 

benefit, the statute requires purposeful conduct aimed at 

an illegal contract-that is, an offer of a benefit with the 

purpose of accomplishing an exchange of the benefit for 

an official action.5

The superseding indictment charged appellant with 

bribery in counts two through seven. Count two is 

illustrative of all six of those counts, and in that count the

State alleged as follows:

COUNT TWO

STACY STINE CARY

hereinafter styled Defendant, on or about January 4, 

2008, and before presentment of this indictment, in the 

County and State aforesaid, did then and there 

intentionally and knowingly offer, confer, and agree to 

confer a benefit, other than a political contribution as 

defined by Title 15, Election Code, or an expenditure 

made and reported in accordance with Chapter 305 of 

the Government Code, to wit: $50,000, to Suzanne H. 

Wooten, a public servant, to-wit: a candidate for the 

office of Judge of the 380th Judicial District Court, and 

presiding Judge of the 380th Judicial District Court, as 

consideration for Suzanne H. Wooten’s decision, 

opinion, recommendation, vote, and other exercise of 

discretion as a public servant and as consideration for 

Suzanne H. Wooten’s decision, vote recommendation, 

and other exercise of official discretion in a judicial 

proceeding, to wit: filing paperwork to run for Judge of 

the 380th Judicial District Court, and as Judge of the 

380th Judicial District Court presiding over and issuing 

favorable ruling cases in which the Defendant and 

David Cary are parties;

The jury was charged that appellant could be guilty of 

bribery either as a principal or as a party. Under the law 

of parties, a person is guilty of an offense if the offense is 

committed by another and the person is criminally 

responsible for the other person’s conduct.6

As relevant to 

this case, a person is criminally responsible for another’s 

conduct if, acting with intent to promote or assist the 

commission of the offense, the person solicits, 

encourages, directs, aids, or attempts to aid the other 

person to commit the offense.7

To convict appellant of 

bribery as a party, the State had to prove (1) that someone 

else committed bribery, and (2) that appellant committed 

a listed act with the intent to promote or assist the 

commission of bribery.8

*39 Under the appropriate standard of review, we 

consider all of the evidence in the light most favorable to 

the jury’s verdict and determine whether a rational fact 

finder could have found the essential elements of the 

crime beyond a reasonable doubt, based on the evidence 

and the reasonable inferences therefrom.9

We must defer 

to the jury’s credibility and weight determinations 

because the jury is the sole judge of the credibility of the 

witnesses and the weight to be given to their testimony.10It 

is not necessary for every fact to point directly and 

independently to appellant’s guilt for us to uphold the 

conviction; the evidence is sufficient if the finding of guilt 

is warranted by the cumulative force of all the 

incriminating evidence.11

B. Summary of the evidence

In 2003, appellant’s future husband David Cary filed for 

divorce from his previous wife Jennifer Cary in the 380th 

Judicial District Court of Collin County. Charles 

Sandoval was the presiding judge of that court. The 

parties were divorced in October 2004, but contentious 

child-custody issues arose repeatedly after the divorce 

decree was signed. Appellant concedes the evidence 

supports the propositions that her husband thought Judge 

Sandoval was a bad and unfair judge, and that her 

husband wanted Judge Sandoval to be defeated in 2008.

There was evidence that James Spencer met with the 

Carys in October 2007, and that they discussed several 

topics, including promotion of “family-centered 

advocacy, with an emphasis on parental rights.”The State 

introduced into evidence a purported engagement letter 

from Spencer to appellant dated October 1, 2007, in 

which Spencer stated that he would provide consulting 

services in four areas for $150 per hour up to a maximum 

budget of $250,000. The majority concludes that the jury 

could have inferred that Spencer actually created this 

document much later, perhaps as late as 2009, to create an 

explanation for appellant’s large transfers of funds to 

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Spencer in early 2008. The evidence of the services 

Spencer allegedly performed for appellant under the 

agreement was such that the jury could have concluded 

that Spencer’s services were not worth the $150,000 that 

appellant paid Spencer in the first three months of 2008.

There was evidence that in December 2007, Spencer 

recruited Suzanne Wooten to run against Judge Sandoval 

in the 2008 Republican primary, which was to be held on 

March 4, 2008. Wooten asked Spencer to be her 

campaign manager. Wooten filed as a candidate in the 

Republican primary on January 2, 2008, and appointed 

attorney Alma Benavides as her campaign treasurer. Soon 

thereafter, appellant transferred sums of money to 

Spencer as follows:

January 4 $50,000

January 30 $25,000

February 14 $25,000

February 26 $25,000

March 7 $10,000

March 14 $15,000

*40 Each of those transfers was the basis of one of the 

six bribery counts against appellant. Spencer testified that 

he used the money from appellant to pay for Wooten’s 

campaign, but he also testified that it was his money to 

spend, that he thought Wooten would pay him back, and 

that Wooten did pay him back. As is chronicled in the 

majority opinion, appellant’s payments to Spencer 

generally correlated with (1) the timing of certain 

telephone calls involving Spencer, the Carys’ home 

telephone, David Cary’s cell phone, Wooten, and 

campaign consultant Hank Clements, and (2) the timing 

of certain financial needs of the Wooten campaign. Given 

the evidence, the jury could reasonably infer that 

appellant made the payments when Spencer requested 

them, and that Spencer’s requests were related to the 

financial needs of the Wooten campaign rather than any 

particular work he had done for appellant under the 

alleged October 2007 consulting agreement. The evidence 

did not show that Spencer ever made his requests for 

money directly to appellant; the evidence showed only 

that, around the times of the payments, Spencer had 

communications involving either David Cary’s cell phone 

or the Carys’ home telephone.

The State adduced other circumstantial evidence. David 

Cary’s co-worker Jay Valentine testified that he had heard 

David Cary say Wooten was going to change rulings 

made in David Cary’s family-law matter and that Spencer 

had “fixed his situation with the judge, and was going to 

get his situation reversed.”Valentine also testified that 

Spencer said he “owned” Wooten. But there was no 

evidence that appellant was present when any of these 

statements were made. There was also evidence that 

Spencer and David Cary were particularly interested in 

the United States Supreme Court’s Caperton12 decision 

about the ramifications of campaign contributions to 

judges. There was evidence that David Cary told Spencer 

when David Cary’s ex-wife hired Wooten’s campaign 

treasurer Benavides to represent her in their family-law 

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case, that Spencer told Benavides and her law partner that 

they did not want to be involved in the case, and that 

Wooten recused herself after Benavides appeared in the 

case. And there was evidence that Wooten did not 

voluntarily recuse herself from appellant’s lawsuit against 

Jennifer Cary and Israel Suster even though Benavides 

and her law partner appeared on Jennifer Cary’s behalf in 

that matter.

C. Application of the law to the facts

*41 The question presented is whether a rational jury, 

assessing all the evidence adduced at trial, could have 

found beyond a reasonable doubt that appellant herself 

committed bribery or that she encouraged or helped her 

husband or Spencer commit bribery with the intent to 

promote or assist the commission of the evidence. In my 

view, the answer is no, for several reasons.

1. The “political contribution” exception

The following analysis falls in the category of unassigned 

error. In my judgment, there must be an exceptional 

reason for entertaining unassigned error. This is such a 

case.

The State’s theory of its bribery case was that appellant 

paid Spencer the $150,000 to spend on Wooten’s judicial 

campaign. Although sections 36.02(a)(1) and (a)(2) of the 

bribery statute required, among other things, that the 

money not be a political contribution, and the indictment 

so alleged, the State’s evidence showed the money was a 

political contribution. Thus, in offering evidence to prove 

bribery under sections 36.02(a)(1) and (a)(2), the State 

simultaneously negated an essential element of its 

case—that the payments were not political contributions. 

In addition, such evidence demonstrated that the 

prosecution could properly be brought under section 

36.02(a)(4), with its attendant requirement of direct 

evidence of an express agreement.

We raise error sua sponte under the unassigned-error 

doctrine if the record discloses an error that should be 

addressed in the interest of justice.13 A serious concern is 

that the bench and bar will construe the majority opinion 

as approval of a prosecution brought under sections 

36.02(a)(1) and (a)(2), notwithstanding that the 

foundation of the case is built upon political 

contributions. Another concern is that the State failed to 

prove a substantial and critical element of the offense. Not 

only did the State fail to prove an element, the State also 

proved appellant was not guilty of the crime charged. By 

disproving an element, that is, by proving the funds were 

political contributions, the State proved appellant did not 

commit and could not have committed the offenses 

charged and thus could not legally be convicted of a 

criminal offense under sections 36.02(a)(1) and (a)(2). A 

conviction for conduct that does not constitute an offense 

under the law is an injustice we may not ignore. Bribery 

charges, as serious as they are, must be properly brought 

and proved under the appropriate statutory provisions.

The State, in seeking a conviction under sections 

36.02(a)(1) and (a)(2), sidestepped the obligation imposed 

by section 36.02(a)(4) to produce direct evidence of an 

express agreement and ignored the clear application of 

section 36.02(a)(4). An affirmance gives the seal of 

approval to a completely misdirected and unsupported 

prosecution and conviction that are not supported by law. 

For the more detailed reasons that follow, this case 

demands unassigned-error review.

At the outset, let us closely examine the provisions of the 

bribery statute.Sections 36.02(a)(1) and (a)(2) basically 

proscribe conferring a benefit on a public servant as 

consideration for an exercise of discretion as a public 

servant, or official discretion in a judicial proceeding.

Section 36.02(d) creates an exception to sections 

36.02(a)(1), (a)(2), and (a)(3) for certain political 

contributions and political expenditures. In other words, if 

the exception applies, a person may not be prosecuted 

under either provision because, as to the particular 

circumstances described, political contributions, the 

person has not committed a criminal offense. The State is 

obliged to “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.”14

*42 Accordingly, the superseding indictment specifically 

alleged that the benefits appellant offered to or conferred 

on Wooten were benefits “other than a political 

contribution as defined by Title 15, Election Code, or an 

expenditure made and reported in accordance with 

Chapter 305 of the Government Code.”15The relevant 

provisions of the election code provide:

(2) “Contribution” means a direct or indirect transfer of 

money, goods, services, or any other thing of value and 

includes an agreement made or other obligation 

incurred, whether legally enforceable or not, to make a 

transfer. The term includes a loan or extension of 

credit, other than those expressly excluded by this 

subdivision, and a guarantee of a loan or extension of 

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credit, including a loan described by this subdivision. 

The term does not include:

(A) a loan made in the due course of business by a 

corporation that is legally engaged in the business 

of lending money and that has conducted the 

business continuously for more than one year 

before the loan is made; or

(B) an expenditure required to be reported under 

Section 305.006(b), Government Code.

(3) “Campaign contribution” means a contribution to 

a candidate or political committee that is offered or 

given with the intent that it be used in connection 

with a campaign for elective office or on a measure. 

Whether a contribution is made before, during, or 

after an election does not affect its status as a 

campaign contribution.

(4) “Officeholder contribution” means a contribution 

to an officeholder or political committee that is 

offered or given with the intent that it be used to 

defray expenses that:

(A) are incurred by the officeholder in performing 

a duty or engaging in an activity in connection 

with the office; and

(B) are not reimbursable with public money.

(5) “Political contribution” means a campaign 

contribution or an officeholder contribution.

(6) “Expenditure” means a payment of money or any 

other thing of value and includes an agreement made 

or other obligation incurred, whether legally 

enforceable or not, to make a payment.

(7) “Campaign expenditure” means an expenditure 

made by any person in connection with a campaign 

for an elective office or on a measure. Whether an 

expenditure is made before, during, or after an 

election does not affect its status as a campaign 

expenditure.16

The State contended and the State’s evidence showed that 

the monies transferred in this case were political 

contributions—monies used to defray political 

expenditures incurred by Wooten during her election 

campaign. Indeed, that was the heart of the State’s theory 

of the case. Thus, section 36.02(d) comes into play, 

making the provisions of the bribery statute under which 

appellant was prosecuted inapplicable. In other words, 

under the facts in this case, in order to prosecute appellant 

under subsections (a)(1) and (a)(2), the State had to allege 

and prove the monies were not political contributions. 

The State properly alleged this, but the State’s proof 

showed the opposite, that the monies were political 

contributions used to pay political expenditures.

If appellant had been prosecuted under the proper 

provision, section 36.02(a)(4), the State would have had 

to allege and prove “an express agreement.” This 

provision also emphasized that “notwithstanding any rule 

of evidence or jury instruction allowing factual inferences 

in the absence of certain evidence, direct evidence of the 

express agreement shall be required in any prosecution 

under this subdivision.”17The record is bare of such 

evidence.

*43 If these convictions for bribery were permitted to 

stand, the distinction between a straightforward bribery 

scheme involving the improper payment of money for an 

exercise of discretion or the inappropriate extension of 

special treatment in a non-election context and the unique 

circumstances present in an election 

context—circumstances that are inherently sensitive 

because of the nature of the political campaign 

process—with its additional elements of proof necessary 

to secure a conviction, would be erased by judicial fiat.

The majority concludes that the jury was entitled to find 

that appellant’s payments to Spencer were not political 

contributions because there was evidence that those 

payments exceeded the legal contribution limits and there 

was evidence that Wooten did not report them in 

compliance with the election code. But the definitions of

“contribution,” “campaign contribution,” and “political 

contribution” do not incorporate these other legal 

requirements. In other words, an illegal political 

contribution is still a political contribution.

The State adduced no evidence that appellant conferred 

any benefits on Wooten that were not political 

contributions as defined by Title 15 of the election code. 

Further, the State adduced evidence appellant was not 

guilty of the offense charged. Accordingly, the State 

failed to prove an essential element of its case under 

sections 36.02(a)(1), (a)(2), and (d); accordingly, we 

should reverse all six convictions for bribery and render 

judgments of acquittal.

2. Lack of consideration

The matter does not end there. Sections 36.02(a)(1), 

(a)(2), and (a)(4) all require a benefit to be conferred on 

someone (in this case, Wooten) in consideration for the 

recipient’s decision, opinion, recommendation, vote or 

other exercise of discretion as a public servant. The first 

two methods delineated in the indictment, and the State’s 

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evidence related thereto, involved Wooten’s “filing 

paperwork to run for Judge and proceeding and 

continuing with a campaign to unseat the incumbent 

elected Judge.”Neither act is inherently criminal. Neither 

act constituted consideration. And neither constituted a 

decision or act of discretion by Wooten as a public 

servant. These acts constituted only steps in the process of 

Wooten’s attaining public office, that is, attaining the 

position of judge. Encouraging a person to run for office, 

any office, in and of itself, is a lawful and acceptable civic 

act, as is becoming a candidate for public office. 

Encouraging a person to proceed and continue with a 

campaign to unseat an incumbent judge is likewise a 

lawful and acceptable civic act. It is common for citizens 

to engage in such acts on a regular basis, and both acts are 

considered public spirited.18The bribery statute and the 

traditional idea of bribery involve the quid pro quo of 

paying a public servant so that the recipient will make 

decisions desired by the payor once the recipient assumes 

office.19In other words, bribery addresses graft and 

corruption. If acts such as encouraging a person to file or 

encouraging a person to keep running for office can be 

construed as the consideration to establish bribery, the 

statute will condemn legitimate civil and political activity 

and it will be left only to the State’s imagination what an 

indictment could allege in terms of similar acts, such as 

seeking the signatures of enough voters to qualify to run, 

attending specific political events or gaining 

endorsements, and the like.20In summary, these first two 

alleged acts of filing paperwork to run and continuing to 

run constitute but steps in the political process, and 

neither constitutes the kinds of decisions or exercises of 

discretion contemplated by the statute as consideration.

Accordingly, we should render judgment acquitting 

appellant of all six counts of bribery.

3. Insufficiency of the evidence as to other elements

*44 Even setting aside the State’s failure to disprove the 

political-contribution exception and the 

lack-of-consideration defect described above, I agree with 

appellant that the evidence was insufficient to support her 

bribery convictions. The jury reasonably could have 

believed that appellant’s consulting agreement with 

Spencer was merely a cover story to justify appellant’s 

sending Spencer money to pay for Wooten’s campaign 

expenses. The jury reasonably could have believed that 

appellant wanted to help elect Wooten because she 

thought Judge Sandoval was a bad judge and was treating 

appellant’s husband unfairly in his ongoing litigation with 

his ex-wife. The jury reasonably could have believed even 

that appellant expected and hoped that Wooten would 

make rulings favorable to appellant’s husband in that 

litigation. But, in my view, there is insufficient evidence 

to permit a reasonable jury to conclude beyond a 

reasonable doubt that appellant conferred monetary 

benefits on Wooten as consideration for Wooten’s joining 

the race, for her staying in the race, or for favorable 

judicial rulings in cases. Nor is there sufficient evidence 

to permit a reasonable jury to conclude beyond a 

reasonable doubt (1) that appellant’s husband or Spencer 

conferred monetary benefits on Wooten as consideration 

for Wooten’s joining or staying in the race, or for 

favorable rulings in cases or (2) that appellant 

intentionally promoted or assisted them in committing 

that offense.

Before delving into the evidence, I point out that the State 

makes no argument that appellant was guilty under the 

“offers” or the “agrees to confer” prongs of the bribery 

statute. Although the State alludes to these theories and 

cites general but inapplicable authority, it does not set 

forth any facts which would establish either theory, and I 

have found no such facts in the record evidence. The 

majority recites evidence at length, notes the allegations 

in the indictment of offer, agree to confer, and confer and 

distinguishes the McCallum decision on the basis that 

McCallum involved only conferring, not offering or 

agreeing to confer. The majority thus excuses the State 

from the necessity of establishing a bilateral agreement in 

this case because the State alleged offering and 

agreeing-to-confer theories, even though the evidence at 

most supports only the “conferring” theory. The majority 

ultimately upholds the bribery convictions based on the 

theories and allegations for offering, agreeing to confer, 

and conferring as they relate to proceeding and continuing 

to run and for favorable rulings, but not as to filing 

paperwork to run for judge. Like the State, the majority 

fails to identify any evidence supporting the convictions 

on the theory that appellant offered or agreed to confer 

benefits in exchange for Wooten’s proceeding and 

continuing to run and for favorable rulings.

In my judgment, all six of the bribery counts rest only on 

actual conferral of benefits—specific payments of specific 

amounts of money. Accordingly, I will not discuss the 

submitted but unsupported theories that appellant illegally 

offered Wooten any benefits or illegally agreed to confer 

any benefits on Wooten.

a. Becoming a candidate

*45 The State’s first theory is that appellant bribed 

Wooten as consideration for Wooten to file the paperwork 

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to become a candidate for the Republican nomination to 

be judge of the 380th Judicial District Court. The majority 

concludes it is unnecessary to address this theory but 

notes appellant’s argument that paying or offering to pay 

someone to become a candidate is not bribery as the 

offense is defined in the statute. I would address 

appellant’s argument and rule in her favor. Before 

Wooten filed her paperwork to run for the Republican 

nomination, Wooten was not a “public servant” as defined 

in the statute.21So even if appellant or someone in league 

with her paid or offered to pay Wooten money as 

consideration for Wooten’s becoming a candidate, that 

conduct would not be bribery.

Moreover, I see no evidence that appellant did such a 

thing before Wooten filed her paperwork to become a 

candidate, nor that her husband or Spencer committed 

such conduct either with or without appellant’s aid or 

encouragement. There is evidence that Spencer recruited 

Wooten to run against Judge Sandoval, but there is no 

evidence that he gave her any improper inducement to do 

so.

b. Remaining a candidate

The State’s second theory is that appellant bribed Wooten 

as consideration for Wooten to proceed with or continue 

her campaign to become judge of the 380th Judicial 

District Court. The evidence supporting this theory fails 

on the essential element that the payments were made “as 

consideration for” Wooten’s decision to continue her 

campaign. Again, as McCallum makes clear, a benefit 

conferred in the mere hope of influencing the recipient is 

not bribery; the benefit must be conferred for the purpose 

of achieving an exchange for the recipient’s decision or 

action.22

The critical defect in the evidence is the lack of any proof 

of the requisite intent and exchange—there is no evidence 

that appellant, David Cary, or Spencer conferred any 

benefit on Wooten as consideration for Wooten’s 

decision(s) to stay in the primary race against Judge 

Sandoval. The State argues that it did not have to prove 

that Wooten ever actually considered dropping out of the 

race, and this is correct. But the State did have to prove 

that appellant or someone in league with appellant 

conferred benefits on Wooten as consideration for—that 

is, in exchange for—Wooten’s staying in the race. 

Proving that the benefits were conferred, even under 

dubious circumstances, does not prove the specific intent 

required for bribery. In McCallum, there was evidence 

that McCallum, a litigant in a pending civil trial, 

encountered one of the jurors in a social setting after 

hours and bought champagne for her and her friends.23But 

the court of criminal appeals reversed McCallum’s 

bribery conviction because there was no evidence that 

McCallum bought the champagne for the juror “in 

exchange for or in consideration of her vote as a 

juror.”24The same is true in this case. The jury could infer 

that appellant wanted Judge Sandoval to lose and that she 

hoped Wooten would not abandon her campaign against 

him. But there is no evidence that appellant’s transfers of 

money to Spencer or Spencer’s spending on Wooten’s 

campaign were done in exchange for Wooten’s 

continuance of her judicial campaign.25

Absent evidence that appellant, her husband, or Spencer 

conferred benefits on Wooten with the intent of 

accomplishing an exchange of benefits for Wooten’s 

decision to stay in the race, any finding that appellant, her 

husband, or Spencer had the proscribed intent is based on 

speculation, not on evidence, and certainly not on proof 

beyond a reasonable doubt. There is no evidence to 

support appellant’s bribery convictions under this theory 

of the case.

c. Judicial rulings

*46 The State’s last theory is that appellant bribed 

Wooten in consideration for Wooten’s presiding over and 

issuing favorable rulings in cases in which appellant or 

her husband was a party. Again, the evidence falls short 

on the essential element of consideration—that appellant 

or someone in league with her conferred a benefit on 

Wooten as consideration for Wooten’s decisions or other 

exercises of discretion in a judicial proceeding.

The evidence shows that David Cary was a party to a 

long-running family-law case pending in the 380th 

Judicial District Court, and the jury could infer that he 

thought Judge Sandoval was a bad and unfair judge. The 

evidence also shows that appellant intervened in her 

husband’s case and also filed a separate lawsuit against 

Israel Suster that was transferred from another court to the 

380th Judicial District Court in May 2008. And, as 

previously discussed, the evidence supports reasonable 

inferences that appellant transferred money to Spencer six 

times during the primary campaign and shortly thereafter 

at Spencer’s requests (made either to appellant or to her 

husband), and that Spencer used that money to pay for 

Wooten’s campaign expenses. But the evidence does not 

permit an inference beyond a reasonable doubt that 

appellant paid the money, or Spencer spent the money 

with appellant’s intentional aid or encouragement, as 

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consideration for Wooten’s judicial rulings or exercises of 

discretion in appellant’s or David Cary’s cases. The 

evidence is equally consistent with the proposition that 

appellant merely hoped or believed that Wooten would 

make better rulings than Judge Sandoval had. Under 

McCallum, such evidence is not sufficient to prove 

bribery.26

The after-the-fact evidence regarding Wooten’s handling 

of the Carys’ litigation does not aid the State’s position. 

There was evidence that in early 2009 Spencer tried to 

dissuade Benavides from representing David Cary’s 

ex-wife in her ongoing dispute with David Cary, and 

given the pattern of telephone calls around that time, the 

jury might reasonably infer that Spencer did so because 

he and David Cary did not want Wooten to recuse herself 

from David Cary’s case. But this does not show that 

appellant, individually or through her husband or Spencer, 

had bribed Wooten a year earlier. It shows only that 

David Cary thought Wooten was preferable to other 

judges who might preside over his case if she recused 

herself. And Wooten did in fact recuse herself without 

making any rulings in David Cary’s case. So Wooten’s 

handling of David Cary’s case constitutes no evidence 

that anyone had bribed her.

As to appellant’s December 2007 lawsuit against Suster, 

there was evidence that in mid–2008 appellant fought to 

keep that lawsuit in County Court at Law No. 4 instead of 

having it transferred to the 380th Judicial District Court. 

There was also evidence that appellant did not press for 

certain discovery in her suit until Wooten had taken the 

bench in January 2009, that Wooten granted partial relief 

on a discovery motion filed by appellant, and that 

appellant later dismissed her suit. Again, this evidence 

does not show that appellant committed bribery, either 

personally or through her husband or Spencer. Wooten’s 

granting of only part of the relief appellant sought does 

not tend to show that appellant or someone in league with 

her had previously bribed Wooten in exchange for 

favorable rulings. Nor does Wooten’s failure to recuse 

herself in that matter indicate that appellant or someone in 

league with her had previously bribed Wooten.27

*47 There was other evidence of conduct by appellant’s 

husband and Spencer that put them in a bad light. There 

was evidence that in June 2009, Spencer and David Cary 

emailed each other about the Supreme Court’s decision in 

Caperton v. A.T. Massey Coal Co., Inc.,28 which imposed 

due-process limitations on elected judges’ ability to hear 

cases involving their campaign contributors. Notably, 

Caperton was not a bribery case, and the Court did not 

question the subjective impartiality of the judge involved 

in that case.29The jury reasonably could have concluded 

that Spencer and David Cary were interested in the 

Caperton decision because appellant had supplied much 

of the money used in the Wooten campaign, and Caperton

had the potential to require Wooten’s recusal in future 

cases on constitutional grounds. But again, this does not 

show that appellant conferred benefits on Wooten in 

exchange for favorable rulings in her cases or David 

Cary’s case. Nor does it show that Spencer or David Cary 

conferred benefits on Wooten in exchange for favorable 

rulings, with appellant’s intentional aid or encouragement. 

Concern over Caperton is as consistent with a mere belief 

that Wooten would make favorable rulings as it is with 

prior acts of bribery.

The testimony of Jay Valentine also put Spencer and 

David Cary in a bad light. According to Valentine, David 

Cary said that he was trying to get Wooten elected, that 

Wooten was going to change the rulings in David Cary’s 

family-law case, and that Spencer “fixed his situation 

with the judge and was going to get his situation 

reversed.”Valentine also testified that Spencer told 

Valentine that Spencer was able to get Wooten elected 

and that “he owned her.” There is no evidence that 

appellant was present when any of the statements 

described by Valentine were made.

In summary, I would hold that the evidence in this record 

is insufficient to prove that appellant, Spencer, or David 

Cary conferred a benefit on Wooten as consideration for 

favorable judicial rulings once Wooten took office. 

Specifically, there is no evidence that any of the three 

alleged conspirators reached an agreement to an illegal 

exchange with Wooten.

Moreover, even assuming there was sufficient evidence 

that Spencer committed bribery, for appellant to be guilty 

of his act, the State had to prove appellant solicited, 

encouraged, or aided in committing the offense “with 

intent to promote or assist the commission of the 

offense.”30Although appellant’s transfers of money to 

Spencer may have aided him in committing the offense, 

there is still no evidence that she acted with the intent of 

promoting or assisting the commission of the offense of 

bribery. There is no evidence that she knew of any 

understanding, express or tacit, between Spencer and 

Wooten that Wooten would make favorable judicial 

rulings in David Cary’s litigation in exchange for the 

campaign expenditures. For all the evidence shows, 

appellant may have helped finance Wooten’s campaign in 

the mere hope of influencing Wooten—or in the mere 

hope of defeating Judge Sandoval—without knowledge of 

any agreement Spencer may have struck with Wooten and 

without any intent to promote such an illegal agreement.

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4. Conclusion

*48 The State did not prove that the exception found in 

section 36.02(d) did not apply. Moreover, the State failed 

to prove beyond a reasonable doubt that appellant 

committed the elements of section 36.02(a)(1) or (a)(2), 

either individually or under the law of parties. I would 

reverse her bribery convictions and acquit her of those 

charges.

OTHER CRIMES

Appellant’s conviction for money laundering stands or 

falls with her bribery convictions. Because I conclude that 

appellant’s bribery convictions are supported by 

insufficient evidence, I would also reverse her conviction 

for money laundering.

Appellant’s conviction for engaging in organized criminal 

activity stands on a slightly different footing. The State 

submitted three theories of this crime to the jury. One 

theory was that appellant participated in a combination to 

commit bribery and another was that appellant 

participated in a combination to commit money 

laundering in connection with bribery. Both of those 

theories fail because of the insufficiency of the evidence 

to support the commission of bribery at all. The third and 

final theory of engaging in organized criminal activity 

was that appellant participated in a combination to 

commit tampering with a governmental record, 

specifically Wooten’s preparation and filing of personal 

financial statements that did not identify appellant, David 

Cary, or Spencer as people who had given Wooten loans 

or gifts during the relevant time period. This theory is 

unaddressed by the majority because it is unnecessary to 

the majority’s disposition of the case. For present 

purposes, it is enough for me to state my conclusion that 

there is no evidence in the record that appellant 

intentionally participated in any combination for the 

purpose of having Wooten commit the offense of 

tampering with a government record.

I would reverse appellant’s convictions for engaging in 

organized criminal activity and money laundering based 

on insufficiency of the evidence, and I would acquit her 

of those charges.

EXCLUSION OF EVIDENCE

*49 I also disagree with the majority’s conclusion that 

appellant failed to preserve her fourth issue on appeal. At 

trial, appellant offered into evidence some findings of fact 

and conclusions of law from a trial judge who presided 

over David Cary’s family-law case after Wooten recused 

herself. The findings were favorable to David Cary and 

critical of his ex-wife. The trial judge excluded the 

evidence. On appeal, appellant argues that the evidence 

was relevant and admissible to show that David Cary did 

not need to bribe a trial judge to obtain favorable rulings, 

and thus that he lacked the intent to commit bribery. The 

majority refuses to consider the merits of appellant’s 

argument, concluding that appellant presented a different 

argument for admissibility in the trial court. According to 

the majority, appellant’s only argument for admissibility 

in the trial court was that the findings of fact and 

conclusions of law showed that David Cary’s ex-wife was 

being “stubbornly litigious.”

I would conclude that appellant adequately preserved 

error in the trial court. She did not argue precisely that the 

findings of fact and conclusions of law were admissible to 

show that David Cary did not need to bribe a judge in 

order to win his case. But she did argue, albeit not very 

clearly, that the findings of fact and conclusions of law 

showed that David Cary’s position was right. The record 

shows the following argument by appellant’s counsel:

Counsel: Judge, we spent, I don’t know, four days 

proving that David Cary, and by way of David Cary, 

that Stacy Cary must also be stubbornly litigious. 

Well, here’s the proof that this stubborn litigiousness 

was on the right side of right. They were doing 

the right thing.This Jennifer Cary character is the 

one being stubbornly litigious.

The Court: I think in the end, all that’s irrelevant. I 

think there’s been evidence that both sides were 

litigious and was heated. I don’t think who 

ultimately prevailed in the end on the custody case 

makes any difference.

Counsel: Judge, I think it goes to show she was the 

one bringing the heat, not us, and that we’re just 

trying to do the right thing. That’s why we have 

courts.

(Emphases added.) In other words, appellant’s counsel 

argued to the trial judge that the findings of fact and 

conclusions of law were admissible to show that David 

Cary was in the right in his child-custody litigation 

against his ex-wife. Appellant has made the argument 

with greater detail on appeal, but there is nothing wrong 

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with that; arguments made in the heat of trial need not 

satisfy standards of appellate eloquence in order to 

preserve error.

I would conclude that appellant’s fourth issue was 

sufficiently preserved in the trial court. Given that I would 

reverse all of her convictions, I will refrain from 

addressing the merits of appellant’s fourth issue.

CONCLUSION

I would reverse all of appellant’s convictions. Because the 

majority does not, I respectfully dissent.

Footnotes

1 Stacy posted an appeal bond, thereby delaying the commencement of her community supervision. SeeTEX.CODE 

CRIM. PROC. ANN. art. 44.04(c) (West 2006); Lebo v. State, 90 S.W.3d 324, 329 (Tex.Crim.App.2002) (those placed 

on ten years’ community supervision may seek release on bail pending appeal).

2 The divorce decree signed by Sandoval named the parties joint managing conservators with David paying child 

support of $500 per month. David and Jennifer were awarded nearly equal possession of the children. The decree 

required the parents to reside in Dallas or Collin County. The decree also ordered each parent to pay one-half of the 

children’s school tuition for the 2004 school year and that $75,000 from an investment account owned by David be 

used to establish a fund for the children’s educational expenses. In re C.H.C., 396 S.W.3d 33, 39 (Tex.App.-Dallas 

2013, no pet.).

3 This Court issued a memorandum opinion on July 19, 2005 relating to a petition for writ of mandamus filed by David, in 

which he complained that Sandoval erred in denying his motion to dismiss Jennifer’s petition to modify the parent-child 

relationship and, alternatively, denying his motion to transfer venue of the SAPCR to Dallas County, Texas. We 

concluded that David had not shown Sandoval clearly abused his discretion in denying his motions, and we denied 

David’s petition for writ of mandamus. In re David Cary, No. 05–05–00979–CV, 2005 WL 1670797, at *1

(Tex.App.-Dallas July 19, 2005, orig. proceeding) (mem.op.).

4 Other Sandoval rulings included appointing Jennifer as the sole managing conservator of the children, modifying the 

schedule for the parents’ possession of the children by denying David possession of the children on weekdays, 

increasing the amount of child support David was to pay and ordering payment of retroactive child support, modifying 

the terms for reimbursement of the children’s medical expenses, and ordering David to place $30,000 each year into 

an account for private education and medical expenses of the children. See In re C.H.C., 396 S.W.3d at 39.

5 This Court issued a memorandum opinion on March 13, 2007 relating to a petition for writ of mandamus filed by David, 

in which he complained that Sandoval abused his discretion in denying David’s motion to transfer the SAPCR to Dallas 

County. We concluded that David had not shown Sandoval abused his discretion, and we denied David’s petition for 

writ of mandamus. In re David F. Cary, No. 05–07–00265–CV, 2007 WL 740895, at *1 (Tex.App.-Dallas March 13, 

2007, orig. proceeding [mand. denied] ) (mem.op.).

6 Poinsett testified that in 2007, he met with Spencer, who was interested in issues related to family law and, specifically, 

issues related to grandparents’ access to children. Also in 2007, Poinsett met with David and Stacy, and they spoke 

with him about “presumed equal joint parenting issues.”

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

8 Stacy’s brother, Scott Nicholas Stine (Stine), testified that Stacy is an owner of the family business, and she had other 

individual business ventures in addition to the family business. He testified that his family has hired consultants to 

advise on new investments, and such use of consultants is a “standard thing” in the oil industry. The consultants’ fees 

would be divided among the family members when the consultants were hired for family business. When Stine hired 

consultants on his individual business deals, he paid those consultants. Stine testified that he vetted business 

consultants before they were hired by meeting with them and considering recommendations.

According to Stine, the family business was sold on November 30, 2007 and the $6,375,000 proceeds were divided 

between Stacy, Stine, and their sister. To his knowledge, Stacy never invested in Smart Grid technology. Stacy had 

not shown Stine the DHI and Smart Grid documents provided her by Spencer, however Stine reviewed those 

documents before Stacy’s trial at the request of Stacy’s attorney.

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9 Spencer was at least generally familiar with David’s SAPCR proceeding. Spencer acknowledged discussing the case 

with David and testified that David had sent him pleadings in the case.

10 Steusloff testified that if a candidate files a statement that she is not going to accept or spend more than five hundred 

dollars on an election, she is not required to file a pre-election campaign finance report thirty days and eight days 

before the election.

11 Wendy Kelly, an investment analyst at the financial planning firm of Paladini Financial, testified that Stacy was a 

customer of Paladini Financial. On the morning of January 3, 2008, Stacy requested that Kelly wire $50,000 from one 

of her accounts to Security State Bank, Fredericksburg, Texas, for the benefit of Spencer. The wire transfer did not 

successfully transmit. Kelly contacted Stacy and advised her that the wire transfer had failed and that there was 

additional paperwork Stacy needed to complete before a third-party wire transfer could be accomplished. Stacy then 

transferred money from one of her accounts to an account at Tolleson Private Bank, which was able to wire transfer 

$50,000 to Spencer.

12 There are discrepancies between the invoices Spencer produced in a previous hearing and the invoices he submitted 

to the Wooten campaign as reported by Wooten to the Ethics Commission. Wooten’s campaign finance reports 

indicate she paid more to Spencer than was billed on the invoices produced by Spencer in the previous hearing. For 

example, Spencer submitted multiple invoices from Booker Industries to the Wooten campaign, but Spencer had not 

paid Booker Industries. Call Plus, a phone bank vendor that made telephone calls on behalf of the Wooten campaign, 

appears to be another vendor which had not received payment from Spencer, although Spencer invoiced the Wooten 

campaign for that expense. Spencer invoiced the Wooten campaign $403.15 for a purported organizational meeting 

with counsel and consultants, and Swihart testified that does not appear to be a legitimate charge. According to 

Swihart, Spencer overcharged the Wooten campaign for radio advertising when he invoiced the campaign for $17,005, 

but paid only $14,454.25 for that advertising.

13 Valentine was terminated by TDI on April 9, 2009 for “lack of performance.” Valentine filed an employment 

discrimination complaint, asserting he was terminated by TDI for making the sexual harassment complaint. Valentine’s 

employment discrimination complaint was arbitrated. According to Johnson, Valentine’s claims were denied by the 

arbitrator; however, TDI was required to pay $20,000 of Valentine’s attorney’s fees and $10,000 for Valentine’s shares 

of TDI stock.

14 It is proper for an indictment to allege different methods of committing the offense in the conjunctive and for the jury to 

be charged in the disjunctive. Vaughn v. State, 634 S.W.2d 310, 312 (Tex.Crim.App. [Panel Op.] 1982). If there is 

sufficient evidence to prove one of the methods of committing the offense of bribery, this Court need not consider 

whether the evidence is also sufficient to prove the alternative theory or theories. See Pinkerton v. State, 660 S.W.2d 

58, 62 (Tex.Crim.App.1983).

15 Stacy does not contend that a candidate for public office running in a party primary is not considered a public servant 

under the bribery statute. TEX. PENAL CODE ANN. § 1.07(41).See Kaisner v. State, 772 S.W.2d 528, 529 

(Tex.App.-Beaumont 1989) (“As a candidate in a party primary, Robinson was clearly a public servant under the 

[Penal] Code. The decision to withdraw from the runoff would have been the exercise of discretion as a public 

servant.”), pet. ref’d,780 S.W.2d 226 (Tex.Crim.App.1989) (per curiam).

16 Stacy does not contend that a sitting judge ruling on pending cases is not considered a public servant under the bribery 

statute. TEX. PENAL CODE ANN. § 1.07(41).

17 In her appellate briefing, Stacy acknowledged that the evidence shows Spencer did not immediately bill Wooten’s 

campaign for campaign expenditures. The evidence showed Wooten’s campaign was not billed for most of the 

campaign expenses paid by Spencer from the money transferred to him by Stacy until after the Republican primary. 

The jury heard testimony from Spencer that he did not want the expenditures timely shown on Wooten’s campaign 

finance reports because those are public records and he did not want it publicly known how much money was being 

spent on Wooten’s campaign. The jury also heard the testimony of Steusloff that a candidate must report a campaign 

expenditure when the amount is readily determinable, regardless of when the expense is actually billed. See Election 

Law Op. No. JWF–22 (1983) (where contract was entered into by a campaign to rent office space at a rate that 

exceeded $50 per month and was an expenditure under the election code upon the creation of the lessee’s obligation 

to pay a definite amount of money, the amount of expenditure was readily determinable at the time of contracting, and 

election code required candidate to report on applicable sworn statement the total amount of rent payable under the 

contract as an expenditure as of the day of contracting).

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

2007 meeting.

19 See Morales v. State, 357 S.W.3d 1, 5 (Tex.Crim.App.2011); Martinez v. State, 924 S.W.2d 693, 699 

(Tex.Crim.App.1996) (“Following the law as it is set out by the Texas Legislature will not be deemed error on the part of 

a trial judge.”).

20 Under section 34.02(a) of the penal code, a person commits the offense of money laundering if the person knowingly:

(1) acquires or maintains an interest in, conceals, possesses, transfers, or transports the proceeds of criminal 

activity;

(2) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity;

(3) invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds 

that the person believes are the proceeds of criminal activity; or

(4) finances or invests or intends to finance or invest funds that the person believes are intended to further the 

commission of criminal activity.

TEX. PENAL CODE ANN. § 34.02(a) (West 2011).

21 Section 37.10(a)(5) of the penal code provides that a person commits the offense of tampering with a governmental 

record if he “makes, presents, or uses a governmental record with knowledge of its falsity.”TEX. PENAL CODE ANN. § 

37.10(a)(5) (West Supp.2014).

22 See also Lofton v. State, No. 05–10–01265–CR, 2011 WL 6225415, at *2 (Tex.App.-Dallas Dec.9, 2011, pet. ref’d) (not 

designated for publication) (issue is whether complaining party brought to trial court’s attention the very complaint the 

party is now making on appeal) (citing Martinez, 91 S.W.3d at 335–36); Segovia v. State, No. 05–09–01070–CR, 2010 

WL 2387511, at *3 (Tex.App.-Dallas June 16, 2010, no pet.)(not designated for publication) (trial court never had 

opportunity to rule upon specific rationale for admissibility; because appellant did not raise in trial court argument in 

support of admissibility he made on appeal, he forfeited his appellate challenge).

23 Even if this argument had been made before the trial court, it is unpersuasive. The evidence Stacy would like to have 

in the record shows, according to Stacy, that when a judge other than Sandoval was presiding over David’s SAPCR, 

rulings were more favorable to David. This evidence does not advance Stacy’s cause.

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

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

3 Id. at 136.

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

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

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

7 Id.§ 7.02(a)(2).

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

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

10 Id.

11 Id.

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

2014 WL 4261233

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

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

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

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

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

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

18 This scenario is different from the fact pattern presented in cases like Valencia v. State, No. 13–02–020–CR, 2004 WL 

1416239 (Tex.App.-Corpus Christi June 24, 2004, pet. ref’d) (mem. op., not designated for publication).Valencia was a 

routine bribery case in which a county commissioner offered to vote for two men to be appointed as county constables 

if they agreed to exercise their discretion to hire as deputies two people designated by the county commissioner. Id. at 

*1. A paid job is clearly a benefit, unlike a decision to run for office or a decision to continue an already-started political 

campaign.

19 See United States v. Ciavarella, 716 F.3d 705, 731 (3d Cir.2013) (“A payment constitutes a bribe as long as the 

essential intent—a specific intent to give or receive something of value in exchange for an official act—exists.”) 

(internal quotation and citation omitted), cert. denied, ––– U.S. ––––, 134 S.Ct. 1491, 188 L.Ed.2d 378 (2014); United 

States v. Wright, 936 F.Supp.2d 538, 545 (E.D.Pa.2013) (“Bribery involves a ‘quid pro quo—a specific intent to give or 

receive something of value in exchange for an official act.’”) (citation omitted).

20 See Luzerne Cnty. Retirement Bd. v. Makowski, 627 F.Supp.2d 506, 561 (M.D.Pa.2007) (“[A]ccepting a compaign 

contribution does not equal taking a bribe unless the payment is in exchange for an explicit promise to perform or not 

perform an official act.”) (internal quotation and citation omitted).

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

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

agreement”).

23 Id. at 136–39.

24 Id. at 139.

25 As the majority notes, there was some evidence that Wooten had a line of credit. Neither side developed this evidence, 

nor did either side develop a detailed description of how much funding was necessary for Wooten to run a financially 

reasonable judicial campaign. The State argues that appellant’s funds “were necessary for Wooten to run for and 

maintain her campaign for the seat of the 380th Judicial District Court,” but there is absolutely no evidence that this is 

so. It is entirely possible that Wooten simply would have run a less-expensive campaign if appellant’s money had not 

been available.

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

27 In my view, judicial rulings are rarely persuasive evidence of bribery. The State can always argue that rulings favorable 

to the person accused of bribery demonstrate a quid pro quo, and that rulings against that person are made only to 

cover the parties’ tracks, even if those rulings are perfectly reasonable under the law and the facts. The State can 

argue that rulings that split the difference, like Wooten’s ruling on appellant’s motion, are sinister from both angles. 

Only a truly outlandish ruling that is utterly divorced from the facts and law of the case might constitute some evidence 

of bribery—and even then, the ruling might reflect only the judge’s lack of common sense rather than bribery.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 39
Cary v. State, Not Reported in S.W.3d (2014)

2014 WL 4261233

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

29 Id. at 882.

30 TEX. PENAL CODE ANN. § 7.02(a)(2).

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

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

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

______________________________

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 C

STATE’S PETITION FOR DISCRETIONARY REVIEW 

 
No. 05-13-01010-CR

______________________________

IN THE COURT OF APPEALS

FIFTH DISTRICT OF TEXAS

DALLAS, TEXAS

______________________________

DAVID FREDERICK CARY,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

______________________________

On Appeal from the 366th Judicial District Court

Of Collin County Texas

______________________________

STATE’S BRIEF

______________________________

GREG ABBOTT EDWARD L. MARSHALL

Attorney General of Texas Chief, Criminal Appeals Division

HARRY E. WHITE *GRETCHEN B. MERENDA

Assistant Attorney General Assistant Attorney General

State Bar No. 24010233

P. O. Box 12548, Capitol Station

Austin, Texas 78711

Telephone: (512) 936-1400

Facsimile: (512) 936-1280

*Lead Appellate Counsel

_____________________________

ATTORNEYS FOR THE STATE

ACCEPTED

05-13-01010-CR

FIFTH COURT OF APPEALS

DALLAS, TEXAS

9/10/2014 4:38:29 PM

LISA MATZ

CLERK

 RECEIVED IN 5th COURT OF APPEALS DALLAS, TEXAS 9/10/2014 4:38:29 PM LISA MATZ Clerk

5th Court of Appeals

FILED: 9/15/2014

Lisa Matz, Clerk
i

TABLE OF CONTENTS

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

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

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

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

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

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

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

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

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 4 SUMMARY OF THE ARGUMENTS 8

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

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

A. Standard of review for sufficiency of the tandard of review for sufficiency of the

evidence challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 evidence challenges. 1

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

C. Applicable law to the six charges of bribery agai C. Applicable law to the six charges of bribery against 

Appellant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Appellant.

D. The evidence is sufficient to support the jury’s D The evidence is sufficient to support the jury’s findings

of consideration for favorable rulings and Appellant’s

intent to commit bribery. . . . . . . . . . . . . . . . . . . . . . . . . . intent to commit bribery. 56
ii

E. The evidence sufficiently supports Appellant’s E. The evidence sufficiently supports Appellant’s

convictions for bribery as charged under § 36.02

(a)(1), (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (a)(1), (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

F. The evidence is sufficient to establish that a “p F. The evidence is sufficient to establish that a “public

servant” was bribed by Appellant in exchange for

the public servant’s exercise of discretion, and thus

sufficient to sustain Appellant’s convictions for

bribery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 bribery. 

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

THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . THREE. 79

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

B. The evidence was sufficient to support Appellant’ B. The evidence was sufficient to support Appellant’s

conviction for money laundering. . . . . . . . . . . . . . . . . . . conviction for money laundering. . 79

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

TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TWO. 80

A. Standard of review for a challenge to the suffici A. Standard of review for a challenge to the sufficiency

of the evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 of the evidence. 0

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

1. Applicable law to underlying criminal 1. Applicable law to underlying criminal

activities of bribery and money laundering. . . . . . . . activities of bribery and money laundering 82

2. Applicable law to underlying criminal 2. Applicable law to underlying criminal

activities of bribery and money laundering. . . . . . . . 8 activities of bribery and money laundering. 3

C. Sufficient evidence supports Appellant’s convicti C. Sufficient evidence supports Appellant’s conviction

for EOCA in committing or conspiring to commit

bribery and/or money laundering. . . . . . . . . . . . . . . . . . . bribery and/or money laundering. 84
iii

D. Sufficient evidence supports Appellant’s convicti D. Sufficient evidence supports Appellant’s conviction

for EOCA in the commission or conspiracy to commit

tampering with a governmental record. . . . . . . . . . . . . . tampering with a governmental record. . 85

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

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

B. Appellant was not Prejudice by Counsel’s B. Appellant was not Prejudice by Counsel’s

Performance at the Punishment Phase of

Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Trial.

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

A. Appellant’s Waived Challenges to the Constitution A. Appellant’s Waived Challenges to the Constitutionality

of Texas Penal Code Section 36.02. . . . . . . . . . . . . . . . . of Texas Penal Code Section 36.02. . 98

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

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

C. The Benefit Given by Appellant to Ms. Wooten Did C. The Benefit Given by Appellant to Ms. Wooten Did

Not Constitute Protected First Amendment Speech. . . Not Constitute Protected First Amendment Speech. 100

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

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

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

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

CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF

APPELLATE PROCEDURE 9.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLATE PROCEDURE 9.4 . 115

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

INDEX OF AUTHORITIES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Citizens United v. Federal Election Commission,

130 S. Ct. 876 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

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

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

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

Crum v. State, 946 S.W.2d 349 (Tex. App.–Houston

[14th Dist.] 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 87

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

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

Duncantell v. State, 230 S.W.3d 835 (Tex. App.–Houston

[14th Dist.] 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim

Eichelberger v. State, 232 S.W.3d 225 (Tex. App.–

Fort Worth 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Ervin v. State, 331 S.W.3d 49 (Tex. App.– Houston 

[1st Dist.] 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52, 81

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

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

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

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

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

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

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

Gibbs v. State, 7 S.W.3d 175 (Tex. App.–Houston 

[1st Dist.] 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
vi

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

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

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

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

Hagens v. State, 979 S.W.2d 788 (Tex. App.–Houston

[14th Dist.] 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

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

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

Hayes v. State, 265 S.W.3d 673 (Tex. App.–Houston 

[1st Dist.] 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 55, 67

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

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

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

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

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

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

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

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

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

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

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

Kfouri v. State, 312 S.W.3d 89 (Tex. App.–Houston

[14th Dist.] 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

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

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

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

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

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

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

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

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

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

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

McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434 

(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 103

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

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

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

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

Mendoza v. State, 2008 WL 2403769 (Tex. App.–Houston 

[14 Dist.[, Jun 12, 2008) . . . . . . . . . . . . . . . . . . . . . . . 90

Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.–Houston 

[14th Dist.] 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Torres v. State, 92 S.W.3d 911 (Tex. App.–Houston

[14th Dist.] 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

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

Trenor v. State, 333 S.W.3d 799 (Tex. App.–Houston 

[1st Dist.] 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 68

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

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

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

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

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

Watts v. State, No. 09-11-00383-CR, 2012 WL 403859, *2

(Tex. App. – Beaumont 2012) . . . . . . . . . . . . . . . . . . . . . . . . 57, 58

Weyandt v. State, 35 S.W. 3d 144 (Tex. App.–Houston

[14th Dist.] 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

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

Constitutions, Statutes and Rules

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tex. Const. Art I, sec. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
1

“CR” refer to the Clerk’s Record of papers filed in the trial court,

preceded by the volume number and followed by the page number(s). “RR” refers

to the Reporter’s Record of the transcribed trial proceedings which occurred

April 16, 2013 through April 26, 2013, preceded by the volume number and

followed by the page number(s). “MNT RR” refers to the transcribed motion for

new trial hearing, followed by the page number(s). 

1

STATEMENT REGARDING ORAL ARGUMENT

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

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

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

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

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

to assist the Court. 

STATEMENT OF THE CASE

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

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

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

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

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

Appellant worked in combination with his wife Stacy Cary, judicial

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

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

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

Counts Two through Seven alleged that Appellant bribed Wooten in
2

exchange for Wooten entering the judicial race, continuing her campaign

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

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

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

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

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

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

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

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

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

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

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

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

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

STATEMENT OF FACTS

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

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

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

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

(unpub.). The State-Appellee marks all altered text within brackets
2

[footnote omitted, referring to facts in In re C.H.C., 396 S.W.3d 33, 39

(Tex. App.-Dallas 2013, no pet.).]

3

[footnote omitted, discussing actions in In re David Cary, No. 05-05-

00979-CV, 2005 WL 1670797, at *1 (Tex. App.—Dallas July 19, 2005, orig.

proceeding) (mem. op.).]

3

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

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

Rick Robertson

David Cary (David) filed for divorce from Jennifer Cary

(Jennifer) in December 2003. [2 RR 101; State’s Exhibit (“SX”)

7A.] The divorce petition was filed in the 380th Judicial

District Court of Collin County, Texas. [Id.; 2 RR 99-100.]

Judge Charles Sandoval (Sandoval) was the presiding judge of

that court. [2 RR 112-14.] Rick Robertson, a board certified

family law attorney practicing in Collin County, represented

Jennifer throughout the divorce proceeding. [2 RR 84, 87.]

Robertson testified at trial regarding the divorce and a

subsequent suit affecting the parent-child relationship

(SAPCR). [2 RR 86-172.] . . . [I]n the divorce proceeding and

subsequent SAPCR[ (Suit Affecting the Parent-Child

Relationship),] many depositions were taken and hearings

conducted. [2 RR 124-26.] 

In the divorce proceeding, David and Jennifer reached an

agreement regarding the terms of possession of their twin

daughters, the amount of child support, and a fund to be

established by David for the children’s education expenses.

Sandoval signed the final divorce decree on October 5, 2004.2

[SX 7A; 2 RR 105-06.] In April 2005, Jennifer filed a SAPCR in

the 380th Judicial District Court. [2 RR 106.] [David filed a

motion to transfer the proceeding to Dallas County, Texas,

which Jennifer opposed. [2 RR 112-15.] Sandoval denied

David’s motion to transfer the case.3

 [Id.]] The parties mediated
4

[footnote omitted, describing “other Sandoval rulings,” citing In re

C.H.C., 396 S.W.3d at 39].

5

(footnote omitted, relaying procedural history in In re David F. Cary,

No. 05-07-00265-CV, 2007 WL 740895 (Tex. App.–Dallas March 13, 2007, orig.

proceeding [mand. denied] ) (mem. op.).)

4

Jennifer’s SAPCR, and a partial mediated settlement

agreement was signed in June 2005 and filed in Sandoval’s

court in July 2005. [2 RR 106-12.] 

In the summer or fall of 2005, a hearing in the SAPCR

proceeding was conducted on Jennifer’s motion for temporary

orders. [2 RR 113-14.] In April 2006, David filed a motion to

recuse Sandoval. [2 RR 115-17.] On May 8, 2006, the judge

appointed to hear the motion to recuse denied that motion. [2

RR 117-19.] . . . [A] trial was conducted before Sandoval

concerning a number of issues in the SAPCR. [2 RR 118-22.]

Among Sandoval’s rulings following the trial was an order that

David pay Jennifer’s attorney’s fees in the amount of

$416,543.16.4 [2 RR 124-26.] A final order of modification was

signed by Sandoval on December 1, 2006. [2 RR 127.]

Robertson testified that David appealed almost every order

signed by Sandoval, and Robertson found it unusual that

neither David nor Jennifer appealed Sandoval’s final order of

modification. [2 RR 119-21, 126-28.] In January 2007, David

filed a motion to modify the prior order in the SAPCR. [2 RR

128-29.] Robertson testified that in moving to modify a SAPCR

order, one typically must allege some change in circumstances

occurring since the last order. [2 RR 128.] Robertson was

surprised by David’s motion to modify, because it was filed the

month after Sandoval’s December 2006 final order of

modification[, and that i]n his motion to modify, David asserted

he had secured full-time employment at a higher salary than

attributed to him at the entry of prior modification orders,[

and] he had married Stacy . . . resulting in a [change] in his

monthly expenses . . . [2 RR 128-29.] David also moved again

for transfer of the proceeding to Dallas County.5

 [2 RR 129-30.
5

Appellant filed a Writ of Mandamus, appealing Judge

Sandoval’s denial of transfer, but his writ was denied;

Appellant’s Writ of Mandamus to the Supreme Court following

this Court’s denial was also rejected. 2 RR 131.] Jennifer

answered the January 2007 motion to modify and sought an

order that David pay her attorney’s fees and sanctions for filing

frivolous pleadings. [2 RR 131-32.] Sandoval denied David’s

motion to modify the December 1, 2006 order. [2 RR 132.] On

June 25, 2007, Sandoval signed an order sanctioning David in

the amount of $50,000. [2 RR 132-36.] 

Sandoval was opposed by Suzanne Wooten (Wooten) in

the 2008 Republican primary for judge of the 380th Judicial

District Court. [2 RR 145-46.] There was no candidate in the

2008 Democrat primary for judge of the 380th Judicial District

Court, so the winner of the Republican primary would be

elected judge of that court in the 2008 general election. [Id.]

Sandoval was defeated by Wooten in the 2008 Republican

primary[.] [2 RR 141.] Wooten became the judge of the 380th

Judicial District Court in January 2009. [Id.] 

Robertson testified that in January 2009, David filed

another motion to modify in the SAPCR. [2 RR 128, 141.]

Robertson understood Jennifer retained attorney Kyle Basinger

[and Alma Benavides] to represent her in David’s motion to

modify[, but another attorney finalized the case. 2 RR 142.] . .

. 

[Robertson affirmed that Appellant’s motion to modify led

to “the situation [being] reversed and [Appellant’s daughters]

with special needs were put into the home of [Appellant] with

his new wife Stacy Cary” in 2010. 2 RR 156, 158-61. On redirect, Robertson also affirmed that the change in

circumstances—as found by the Honorable Judge McCraw,

nearly four years after Judge Sandoval signed the prior

possession order—included Jennifer’s new marriage and move
6

to Fort Worth; that Appellant and his wife lived about ten miles

from the twins’ school; and the daily commute for the twins

between their primary residence in Fort Worth to their school

in Dallas was “detrimental and potentially dangerous.” 2 RR

164-67.] 

Israel Suster

Jennifer retained attorney Israel Suster to assist her in

the collection of $416,543.16 in attorney fees and the $50,000

sanction Sandoval had previously ordered David to pay. [2 RR

176, 180.] Suster testified that to facilitate collection of these

sums, he filed a Motion for Turnover Order in Sandoval’s court.

[2 RR 174-78.] In the application, Jennifer sought to require

the turnover to a previously appointed receiver of funds held by

David’s legal counsel that allegedly constituted an unused

retainer paid by David, and funds held by Tolleson Private

Bank that allegedly were owned by or for the benefit of David

and which he had the authority to withdraw. [2 RR 189-92.] In

support of Jennifer’s Motion for Turnover Order, Suster filed

his affidavit and supporting exhibits which, among other

things, stated that documents produced by David’s legal

counsel in response to a subpoena duces tecum indicate the

counsel was in possession of [nearly $13,000.00] being held on

behalf of David for the purpose of payment of future legal

services, and that upon Suster’s information and belief, David

was the owner and/or beneficiary of funds held at Tolleson

Private Bank. [Id.] Attached as Exhibit 2 to Suster’s affidavit

is a copy of a $30,000 cashier’s check issued by Tolleson Private

Bank, representing payment by David to Jennifer of

educational funds for their children that had been ordered by

Sandoval. [2 RR 192-94.] Suster therefore assumed the

educational fund payment originated from an account held by

or on behalf of David at Tolleson Private Bank. [Id.] 
7

Suster filed a motion to hold David in contempt for failure

to pay the $50,000 sanction and for failure to provide

information and documents as ordered by Sandoval on January

31, 2007. [2 RR 180-85, 189-90.] Shortly after Sandoval signed

the requested turnover order, Stacy filed a petition in

intervention and motion to dissolve the turnover order, and

objections to subpoenas seeking information from third parties

pursuant to the turnover order. [2 RR 193-95.] Stacy sought

sanctions against Suster. [2 RR 194.] David filed a motion to

set aside the turnover order and the orders imposing sanctions

and awarding attorney’s fees. [2 RR 193-96.] At the January 3,

2008 hearing of David’s motions, Stacy testified she intervened

in the lawsuit because Suster and Jennifer were trying to seize

Stacy’s funds, claiming the funds were owned by David. [2 RR

202-03.] At the hearing, Stacy testified she purchased the

cashier’s check from Tolleson Private Bank used by David to

establish the educational fund ordered by Sandoval in order to

keep David from being held in contempt for failure to make the

payment. Id. Stacy also testified at the hearing regarding

payments she made to attorneys who represented David. [2 RR

203-04.] Sandoval quashed the prior turnover order and denied

Stacy’s motion for sanctions against Suster. [2 RR 197, 201.] 

On January 3, 2008, Suster was served with a December

2007 lawsuit filed by Stacy against him in County Court at Law

No. 4, Collin County, Texas. [2 RR 205-06; SX 67, 92, 173.]

Stacy alleged Suster had committed fraud by filing a lien in the

380th Judicial District Court in conjunction with the

application for a turnover order. [2 RR 205-09.] On May 28,

2008, [County Court] Judge Wheless signed an order

transferring Stacy’s lawsuit against Suster from County Court

at Law No. 4 to the 380th Judicial District Court to be

consolidated with the SAPCR involving David and Jennifer

over which Sandoval was presiding. [2 RR 212-13.] Stacy

objected to Wheless transferring her lawsuit against Suster to

the 380th Judicial District Court and filed a motion to
8

reconsider the transfer. After Stacy’s lawsuit against Suster

was transferred to the 380th Judicial District Court, Stacy did

not press for the discovery she had sought while the case was

pending in the County Court at Law. [2 RR 213-19.] However,

after Wooten became judge of the 380th Judicial District Court

in January 2009, Stacy pursued her motions for additional

discovery and depositions. [2 RR 217-19.] When Wooten allowed

only a limited amount of the discovery Stacy requested, Stacy

dismissed her lawsuit against Suster. [2 RR 226-27.] 

Michael Puhl

Michael Puhl is a board certified family law attorney

practicing in Collin County, Texas. [3 RR 137-38.] In 2006, the

judge of the 366th Judicial District Court in Collin County was

not seeking reelection, and Puhl ran as a candidate for election

to that bench. [3 RR 139.] Puhl’s campaign expenses totaled

[$15,000] to $25,000, and $5,000 to [$10,000] of that amount

was funded from Puhl’s personal resources. [3 RR 139-40.] Puhl

testified that his opponent spent over $100,000 on the

campaign. [3 RR 140-41.] Puhl was not successful in that

election. [2 RR 141.] 

In the fall of 2007, Puhl received a telephone call from

James Spencer. [3 RR 142.] Spencer told Puhl that he was

interested in speaking to Puhl about the possibility of Puhl

running for election against Sandoval as the sitting judge of the

380th Judicial District Court. [3 RR 143, 151.] [Puhl agreed to

meet with Spencer. 3 RR 145.] . . . Either in the phone

conversation or in the subsequent meeting, Spencer told Puhl

that he was involved with the Texas Home School Coalition

(THSC), and there were several people he knew who were

dissatisfied with decisions rendered by Sandoval and were

seeking an opponent for Sandoval in the 2008 Republican

primary. [3 RR 144-45.] Spencer indicated to Puhl that he could

provide financial support for Puhl’s campaign as well as
9

volunteer support for walking neighborhoods to distribute

campaign materials. [Id.] With regard to financial support,

Spencer’s representations to Puhl were very general in nature;

Puhl’s impression was that Spencer could marshal supporters

who would provide financial assistance to the campaign. [3 RR

145.] Puhl also testified that most attorneys are not inclined to

contribute to a campaign against an incumbent judge, because

[“it’s very difficult for people to publicly acknowledge support

for someone who is not a sitting judge.”] [3 RR 146.] . . . 

. . . Puhl declined to run as a candidate in the election[

and, to his recollection at trial, did not provide any other leads

for Spencer to pursue as candidates. 3 RR 145, 147. Puhl

testified with certainty that he did not recommend his law

partner, Brian Loughmiller, due to Loughmiller’s strong

support for Judge Sandoval. 3 RR 147. Puhl also admitted he

was surprised that Wooten was “able to, as her first race, take

on an incumbent and then prevail.” 3 RR 152.] 

Daniel Dodd

Daniel Dodd, chair of the Democratic Party in Collin

County in 2007, testified that in early November 2007, he

learned Wooten wanted to run for election as a Collin County

judge. [3 RR 128, 129-30.] At a meeting with Dodd, Wooten

indicated she was considering running for judge of the 380th

Judicial District Court against Sandoval, but Wooten had not

decided whether to run as a Democrat or a Republican. [3 RR

130, 132.] Dodd informed Wooten that if she ran as a

Democrat, he could not give her money for signs because of a

lack of funds. [Id.] Dodd advised Wooten that if she had signs,

the Democratic Party would make sure they were distributed.

[Id.] 

After Dodd met with Wooten, he received a telephone call

from an individual in Austin, Texas. [3 RR 132-33.] Dodd could
10

not remember the name of the caller, but the man told Dodd

that [“he was a lawyer, and he was a Republican, and they were

interested in supporting Suzanne Wooten.” [3 RR 132.] Dodd

remembered the caller saying “he could get a hundred thousand

dollars through the lawyers down there in Austin. They didn’t

like Sandoval either, and they wanted to get rid of him.” [3 RR

133.] . . . The man was requesting permission to contact

Wooten. [Id.] [Dodd testified that the call was unusual because

“[i]t was for a particular thing, and it was really Suzanne

Wooten’s decision whether to go Republican or Democratic.”

Id.] . . . Sometime after that, Dodd contacted Wooten and

inquired whether she was going to run for election as a

Democrat or a Republican. [3 RR 134.] Wooten informed Dodd

she was going to run for election as a Republican. [Id.] [Dodd

testified that an individual had better odds of being elected in

Collin County running as a Republican. 3 RR 134.] 

. . . 

[Dee Dee] Kedzie

Deanna [“Dee Dee”] Kedzie, a certified public accountant,

testified that her practice focuses upon tax accounting and

Stacy was her client. [5 RR 141-44.] Kedzie testified about a

2008 income and expense report dated March 16, 2009 that was

prepared by Stacy. [5 RR 146-67; SX 171, 179.] According to

Kedzie, the report indicates legal fees of $226,602.96 were

incurred in 2008 relating to divorce and child custody issues.

[5 RR 148-49.] Kedzie testified that Stacy wanted to deduct

from 2008 taxable income a total of $226,773 for legal and

professional fees. [5 RR 149-50.] Kedzie also testified about a

March 31, 2008 email to her from Stacy, relating to Stacy’s

2007 tax return, in which Stacy wrote that her legal expenses

were high “THANKS TO MY STEP CHILDREN’S

LITIGIOUS/ABUSIVE/ NARCISSIsTC[sic]/GOLD DIGGING

MOTHER” and inquired why legal fees “defending my home

and family” could not be deducted from taxable income on her

2007 income tax return. [5 RR 152-54; SX 172.] Kedzie testified
11

that none of Stacy’s legal fees relating to divorce and child

custody issues were actually deducted from taxable income on

her income tax returns. [5 RR 150-51.] 

. . . None of the backup documentation for calendar years

2007 and 2008 income and expense that Stacy provided to

Kedzie for purposes of income tax return preparation contained

any indication Stacy paid Spencer for consulting work during

that period. [5 RR 155-58.] According to Kedzie, if Stacy was

unsure about how to address the tax aspects of an expenditure

or deduction, Stacy would typically contact Kedzie for advice;

and if Stacy had needed any advice on how to address the tax

aspects of a $150,000 consulting agreement, Stacy would most

likely have contacted Kedzie because Kedzie prepared Stacy’s

personal and business tax returns. [5 RR 158-60.] Stacy did not

seek advice from Kedzie concerning the consulting agreement

with Spencer[, and Kedzie likely “would have been told had

[Stacy] discussed it with” Kedzie’s boss. 5 RR 160. Kedzie also

affirmed that, although consulting fees for a 1031-real estate

exchange transaction would most likely result in tax savings,

Stacy did not report the $25,000.00 fee for Spencer’s services

pertaining to a 1031-exchange, per their contract. 5 RR 177-

79.] 

[Kedzie also testified that Stacy sent her paperwork for

the 2008 tax year, in which Stacy noted a total sum of $556

that she was seeking as a deduction Cornwall Consulting,

Family Focus Graphics. 5 RR 162-65. But upon researching

Family Focus, Kedzie determined that no deductions could be

taken. 5 RR 166-67.] 

Kyle Basinger

Attorney Kyle Basinger testified that [he had known

Wooten for approximately ten years before going into law

practice with her—specifically,] Wooten previously had
12

operated a Collin County office for Basinger’s law firm. [3 RR

104, 59-60.] . . . 

. . . [During their friendship and professional partnership,

Wooten had conveyed to Basinger that she had aspirations to

be a district judge. 3 RR 63. Just few months prior to the 2008

election, Wooten made “an offhand comment” about running for

judicial office.” Id. Basinger advised Wooten that she “needed

to run as a Republican” if she was going to run, because the

Republican Party in Collin County was very strong. 3 RR 63-

64.] 

. . . Basinger learned of Wooten’s decision to run for

judicial office [less than a month] before the filing deadline in

January 2008. [3 RR 65.] [Wooten announced her decision at

their firm’s litigators’ meeting, “mention[ing] that the

incumbent she was going to run against [was] well-financed

and was well-[e]ntrenched.” 3 RR 66.] Basinger was concerned

that it seemed a last minute decision by Wooten. [3 RR 66-67,

68.] . . . [After her announcement, Basinger and his law

partners decided to shut down their Collin County branch

which had been operated by Wooten, in the event she won the

election. 3 RR 69-70.] 

Benavides, an associate in Basinger’s law firm, served as

Wooten’s campaign treasurer. [3 RR 69.] After her election,

Wooten requested that members of Basinger’s law firm not

appear in her court for a period of nine months in order to avoid

the appearance of impropriety. [3 RR 74.] With respect to a

Basinger firm case pending in Sandoval’s court at the time

Wooten assumed office, Basinger testified that his office would

contact Wooten’s court coordinator to advise her of the pending

case, and the case would be ministerially transferred to another

Collin County judge. [3 RR 73-76; see 3 RR 102-04, SX 66.] 
13

Basinger represented Jennifer with regard to a motion to

modify filed in the SAPCR involving David and Jennifer that

was pending in Wooten’s court. [3 RR 76.] On February 27,

2009, at 9:59 a.m., Basinger’s law firm filed pleadings on behalf

of Jennifer concerning the motion to modify. [3 RR 97-98.]

Basinger received a telephone call from Spencer . . . on

February 27, 2009[, “sometime between 9:59 a.m. and noon.” 3

RR 98.] Basinger was aware Spencer had served as Wooten’s

campaign manager. [3 RR 99.] Basinger testified this was the

only time he had received a telephone call from Spencer, and he

was surprised Spencer was calling him . . . [Id.] . . . Spencer

asked that Basinger consider withdrawing from the SAPCR

involving David and Jennifer. Spencer’s position was that

Basinger needed “to get [out of the Cary] case.” [3 RR 99.] . . .

[Basinger asked Spencer why, and Spencer “started quoting

that there was a pending trial or a pending investigation

against Judge Sandoval, and I did not want to be involved in

this case.” Id. But, because Basinger only knew Spencer

casually, and Basinger had already contracted with Jennifer to

represent her legal interests, Basinger “saw no reason to

withdraw.” 3 RR 100. He pressed Spencer for more

information than “some investigation of the former judge to get

[him] off the case.” Id. But Spencer failed to provide any further

details, and Basinger continued representing Jennifer. 3 RR

100-01.] . . . 

On March 3, 2009, Basinger’s law firm filed a motion to

recuse Wooten in connection with the pending motion to modify

the SAPCR. [3 RR 78, 77-80.] Basinger’s and Benavides’s

names were listed as counsel on that motion. [3 RR 77.] On

March 4, 2009, Wooten granted the motion to recuse. [3 RR 84.]

Jennifer approached Basinger regarding his firm

representing her in two additional civil litigation matters, one

pending in Collin County and the other pending in Dallas

County. [3 RR 82.] The civil litigation in Collin County was
14

related to the SAPCR between David and Jennifer; the case

was filed by Stacy against Jennifer and Suster, who was

attempting to collect attorney’s fees Sandoval had ordered

David to pay Jennifer in the SAPCR. [3 RR 82-83.] . . . 

Basinger and Benavides are listed as counsel on an April

23, 2009 pleading filed on behalf of Jennifer in the lawsuit filed

by Stacy against Jennifer and Suster that was pending before

Wooten. [3 RR 83-84.] . . . On May 8, 2009, Basinger filed a

motion to recuse Wooten in Stacy’s lawsuit against Jennifer

and Suster. [3 RR 85-87.] Basinger anticipated the motion to

recuse would be granted because Wooten had recused herself

previously with regard to the motion to modify filed in the

SAPCR involving David and Jennifer, and there were

overlapping facts in Stacy’s lawsuit against Jennifer and

Suster. [3 RR 87-90.] 

Unlike the prior motion to recuse, however, Wooten did

not voluntarily recuse herself from Stacy’s lawsuit against

Jennifer and Suster. [3 RR 90.] Judge G. Calhoun, Jr. was

appointed to hear the motion to recuse Wooten in that matter.

[3 RR 92.] On June 29, 2009, Basinger forwarded

correspondence to Wooten withdrawing Jennifer’s motion to

recuse. [3 RR 93.] Basinger testified that his law partner had

[requested him to sign a letter addressed to both Wooten and

Judge Calhoun, informing them that] the decision had been

made to withdraw the motion to recuse Wooten. 3 RR 93-94.] .

. . 
15

Hank Clements

[George Henry “Hank”] Clements, an attorney and

registered lobbyist in Texas, testified that his firm provides

political and legislative consulting services, including lobbying.

Clements also provides services to candidates for public office,

including campaign management, direct mail advertisement,

media strategies, and speech preparation. [6 RR 190-93, 200.

At trial, Clements indicated he has worked on campaigns for

“everything from local City council races, up through U.S.

Congress and U.S. Senate.” 6 RR 192.] . . . 

In the spring of 2007, Clements met Spencer in the office

of a legislator. [6 RR 194-96.] Clements believes Spencer was

there with regard to a family law issue. [6 RR 194.] Spencer

told Clements he was interested in managing political

campaigns, advocating for parental rights legislation, and

[“that he had several judges around the state targeted that he

wanted to see defeated and that he had a coalition that was out

to defeat them.” 6 RR 196-97.] . . . It was Clements’s

understanding from speaking with Spencer in the fall of 2007

that Spencer wanted to field a candidate in a judicial race. [6

RR 197.] Spencer specifically asked if Clements had ever

managed a campaign in Collin County, and Clements advised

Spencer that he had. [6 RR 196.] . . . . Spencer identified

Wooten as a potential candidate who was considering entering

the race. [6 RR 197.] Spencer wanted Clements to talk to

Wooten regarding the magnitude of such a campaign. [6 RR

198-99.] Clements spoke on the telephone with Wooten toward

the end of 2007, and he met with her on a Saturday in

December 2007. [6 RR 199.] Clements gave Wooten an idea of

the time commitment and cost required for an effective political

campaign. [6 RR 199-200.] [He] also told Wooten it would

require a substantial commitment on Wooten’s part to defeat

an incumbent judge, and that the campaign would cost

[“about”] $70,000 or more. [6 RR 200.] 
16

By late December 2007 . . . , Clements knew Wooten was

going to run against Sandoval in the Republican primary for

judge of the 380th Judicial District Court. [6 RR 203.] . . .

Although Spencer had never managed a political campaign,

Clements testified Spencer wanted to run Wooten’s campaign

and Wooten hired Spencer as her campaign manager. [6 RR

204.] Spencer hired Clements as a subcontractor to handle

media, prepare a campaign plan, develop overall strategies, and

design a direct mail plan. [Id.] Clements was to be paid

[$25,000] for the scope of work[, the sum of which included a

victory bonus to be paid] if Wooten won the race. [6 RR 204.]

Clements received cashier’s checks for payment of his fees as

follows: $7,500 on January 7, 2008, $7,500 on January 8, 2008,

and $10,000 on March 7, 2008 after Wooten defeated Sandoval

in the March 4, 2008 Republican primary. [SX 1.] 

Clements did not send his bills directly to Wooten. [See 6

RR 204, 7 RR 24-25.] . . . According to Clements, management

of a campaign is characterized as “turnkey” when the candidate

pays a fee to a campaign manager or political consultant, and

the manager or consultant is then responsible for paying

vendors and service providers. [7 RR 24-25, 31.] Clements

indicated that Spencer provided turnkey management of

Wooten’s election campaign. [7 RR 24-25, 28-29.] 

In [some of his previous] campaigns, Clements assisted

the candidate in preparing campaign finance reports to be filed

with the Ethics Commission. [7 RR 21.] He was not asked to

review Wooten’s campaign finance reports. [Id., see 6 RR 249.]

. . . Campaign finance reports filed with the Ethics Commission

are public records, and the public can view the reports to see

how candidates raised and spent their campaign funds. [See 6

RR 248.] 

. . . [The State questioned Clements about an email from

Spencer, addressed to both Clements and Wooten,] regarding
17

how much money Sandoval had raised in his campaign[.] [6 RR

248, SX 14.] . . . Sandoval’s Campaign Finance Report filed with

the Ethics Commission on February 4, 2008 was [previously]

admitted in evidence [through Spencer. 4 RR 95, SX 175.]

That report reflected Sandoval had raised $12,575 in campaign

contributions, had expended $8,997.08, and on February 4,

2008, his campaign account had a balance of $4,231.37. [Id.]

Spencer sent an email to Wooten and Clements regarding

Sandoval’s February 4, 2008 Campaign Finance Report. [6 RR

248.] In that email, Spencer said Sandoval had “raised some

money,” but Spencer did not think Sandoval was “in a position

to match our resources.” [Id.] Clements did not know what

Spencer meant by his reference to “resources” in that email.

[Id.] Spencer did not tell Clements that there were contributors

Spencer could go to for money, but that was Clements’s

interpretation of the email. [6 RR 248.] . . . . Clements testified

he had no role in raising money for Wooten’s campaign or in

managing the finances of the campaign. [Id.] 

Records regarding paid political advertisements for the

Wooten campaign on local radio stations were admitted in

evidence. For example, a $6,000 cashier’s check from Spencer

for payment for radio advertisements airing on a radio station

from February 25 through February 28, and on March 3, 2008,

was admitted in evidence. [SX 25, 6 RR 215.] The invoice for

the radio advertisements was dated March 10, 2008. [6 RR 214-

15.] A $4,000 cashier’s check from Spencer for payment for

radio advertisements airing on another radio station from

February 25 through February 28, and on March 3, 2008 was

also admitted in evidence. [SX 24, 6 RR 215-16.] The contract

confirmation for that radio advertising was dated February 22,

2008, and the invoice for that radio advertising was dated

March 10, 2008. [6 RR 208-10, 214-15.] . . . Documents on which

Wooten gave approval for campaign expenditures and edited or

approved campaign advertisements and media materials were

admitted in evidence. [6 RR 205-49.] 
6 Steusloff testified that if a candidate files a statement that she is not

going to accept or spend more than five hundred dollars on an election, she is not

required to file a pre-election campaign finance report thirty days and eight days

before the election. [6 RR 39.]

18

. . .

Ian Steusloff

Ian Steusloff, an assistant general counsel for the Ethics

Commission, testified that the Ethics Commission is an agency

that, among other things, administers laws relating to

campaign finance, ethics disclosure, and regulation of lobbyists.

[6 RR 26-28.] It also serves as an enforcement agency. [6 RR 28-

29.] 

Steusloff testified regarding filings with the Ethics

Commission that candidates and officeholders are required to

make. [6 RR 28-29.] Candidates for election to a judicial office

are required to file campaign finance reports. [6 RR 38-40.]

Those reports show campaign contributions, campaign

expenditures made from a campaign account, campaign

expenditures made from personal funds, and loans to a

campaign. [6 RR 38-40, 43.] Typically candidates must file

campaign finance reports on January 15th and July 15th. [6 RR

38-39.] If opposed in an election, candidates must also file

campaign finance reports thirty days and eight days before the

election.6 [6 RR 39.] Candidates are required to swear the

information provided in a campaign finance report is true and

correct. [6 RR 36, 42.] The campaign finance reports filed by a

judicial candidate are public records, and the Ethics

Commission posts those reports on its internet website. [6 RR

42, 51.] 

Steusloff testified that contributions to a judicial

campaign must be individually itemized on the campaign

finance report if the contribution, whether money or in-kind .
19

. . .[6 RR 28-29.] A candidate must also disclose on the

campaign finance report outstanding loans to a judicial

campaign. [6 RR 40, 43.] . . . For disclosure purposes, an

expenditure is deemed made when the amount of the

expenditure is readily determinable. [6 RR 44.] Steusloff

testified that, in 2008, when an individual or entity made an

expenditure of more than $100 that benefitted, but was

independent from, a campaign, such as paying for advertising

that benefitted a candidate, the individual or entity was

required to file a report with the Ethics Commission disclosing

the expenditure and send a report of the expenditure to the

candidate. [6 RR 40.] . . . 

[Steusloff acknowledged that, if a candidate hired an

independent consultant and delegated authority to the

consultant to make decisions concerning campaign

expenditures without the candidate’s approval, it could be

lawful for the candidate to report those expenses on the date an

invoice is submitted to them by their consultant – in some

circumstances. 6 RR 67-75, 80-83. However, Steusloff testified

that the only lawful date of reporting is the date the

expenditure is “readily determinable,” which may or may not

coincide with the date of invoice submitted to the candidate

from the consultant. 6 RR 44-46, 66-70. Steusloff also denied

that the Ethics Commission has issued a blanket approval for

lawful reporting dates for expenditures, based upon agreements

between a candidate and their consultant—rather, each

determination is fact-specific. 6 RR 84.] 

Steusloff testified that in judicial races, there are limits

on campaign contributions. [6 RR 35-36.] The limit depends on

the population of the judicial district. If the population in the

judicial district is between 250,000 and one million, as in Collin

County in 2008, the contribution limit is $2,500. [6 RR 37.] . .

. When a candidate pays campaign expenditures from personal

funds, there is a limit on reimbursement of those expenditures
20

from campaign contributions; the limit is five times the

maximum permissible campaign contribution. [6 RR 48.]

Therefore, where the campaign contribution limit for a judicial

race is $2,500, the total amount of reimbursement from

campaign contributions of a candidate’s out-of-pocket campaign

expenditures is $12,500. [Id.] 

Wooten’s Campaign Finance Report for the period

January 25, 2008 through February 23, 2008 indicated she had

received a total of $10,425 in campaign contributions, with total

political expenditures of $11,734.41. [SX 62; 6 RR 62-63.]

Wooten’s Campaign Finance Report for the period February 24,

2008 through June 30, 2008 indicates she received [$60,115.19]

in campaign contributions and expended $65,515.91. [SX 62, 6

RR 78-79.] Wooten’s January 11, 2009 Campaign Finance

Report filed for the period July 1, 2008 to December 31, 2008

indicates she received campaign contributions of $5,150 and

expended $42,419.91. [SX 62, 6 RR 93.] 

Wooten’s January 11, 2009 Campaign Finance Report

indicates payments to Spencer in the amounts of $1,500 and

$7,550 for “[t]urnkey mgmt svcs fees and costs—per invoice[s].”

[SX 62.] Earlier campaign finance reports and amended

campaign finance reports filed by Wooten in 2009 disclose the

following payments to Spencer: an August 28, 2008 payment in

the amount of $33,369, 91 for “turnkey mgmt svcs fees and

costs—per invoice”; a February 13, 2008 payment in the

amount of $4,002.32 for signs and fees; a February 22, 2008

payment in the amount of $4,527.50 for campaign material and

fees; a March 7, 2008 payment in the amount of $2,400 for a

direct mailer; a May 29, 2008 payment in the amount of $5,000

for “turnkey management svcs fee and costs—per invoice[s]”;

June 24, 2008 payments of $5,241.50 and $2,700 for “turnkey

mgmt svcs fees and costs—per invoice”; a June 30, 2008

payment in the amount of $7,550 for “turnkey management

services fees and costs—per invoice”; and a June 30, 2008
21

payment of $1,500 for “turnkey management services fees and

costs—per invoice.” [Id.] The campaign finance reports also

include campaign expenditures for “CBS radio buy—per

invoice” on March 31, 2008 in the amount of $10,000, “WBAP

radio buy fee” on April 17, 2008 in the amount of $12,000, and

“radio buy and direct mail—per invoice” on April 28, 2008 in

the amount of $14,000. [Id.] A campaign finance report reflects

a “personal loan” from Wooten to the campaign on August 28,

2008 in the amount of $33,369.91, matching the August 28,

2008 payment of $33,369.91 to Spencer for “turnkey mgmt svcs

fees and costs—per invoice.” [Id.] 

Kyle Swihart

Kyle Swihart, a certified fraud examiner and a forensic

auditor employed by the office of the Texas Attorney General,

testified that he investigates allegations and complaints of

white-collar crime relating to public integrity and money

laundering. [7 RR 78-82.] His investigation of [David] included

review of bank records; phone records; campaign finance

reports; credit card statements and documents establishing a

credit card account; invoices; payments made by Wooten to

Spencer; and records of emails and other forms of

communication. [7 RR 82-96.] 

A chart created by Swihart containing a summary of the

evidence he relied upon was admitted in evidence. [7 RR 96, SX

94.] That chart contained a summary of bank records, invoices

for services or products provided to Wooten’s campaign,

transfers of money from Stacy to Spencer, the dates when

products or services benefitting the Wooten campaign were

purchased or rendered, and the dates Spencer invoiced

Wooten’s campaign. [Id.] The summary of the evidence spans

the period of January 1, 2008, the day before Wooten filed her

candidacy for judge of the 380th Judicial District Court, and

August 29, 2008, when Wooten wrote a check in the amount of
22

$33,369.91 from her line of credit to Spencer. [7 RR 96-98.] The

records Swihart reviewed establish Spencer made six deposits

to his bank account of funds transferred to him by Stacy in the

form of wire transfer or check. [Id.] 

On January 3, 2008, Spencer had $2.39 in his bank

account and Wooten had $25 in her campaign account. [SX 94.]

On January 4, 2008, $50,000 was deposited in Spencer’s bank

account from Stacy’s first transfer of money to him. [Id.]

Without the money transferred by Stacy to Spencer on January

4, 2008, Spencer did not have funds in his bank account, and

Wooten did not have funds in her campaign account, for

Spencer to make payment by cashier’s check to Clements on

January 7, 2008 in the amount of $7,500 and on January 8,

2008 in the amount of $7,500. [7 RR 102-03.] On January 23,

2008, Spencer had a balance of $7,656.31 in his bank account

remaining from the January 4, 2008 transfer of money from

Stacy, $16,856.37 having been spent by Spencer on Wooten’s

campaign.[SX 94.] 

On February 4, 2008, a payment from Stacy to Spencer in

the amount of $25,000 was posted to Spencer’s bank account.

[7 RR 104, SX 94.] Before this deposit, Spencer had an account

balance of $5,545.51, and Wooten had a balance of less than

$3,000 in her campaign account.[Id.] After that deposit, the

balance in Spencer’s bank account was $25,692.30. [Id.] The

records show that on February 5, 2008, Spencer began using

the $25,000 for Wooten’s campaign, including an expenditure

of $2,345 for an advertisement in the Plano Profile magazine,

and payments of $4,036.75 and $3,877.32 to Cartwright Signs.

[7 RR 105.] Without Stacy’s February 4, 2008 payment of

$25,000 to Spencer, these campaign expenses could not have

been paid from either Spencer’s bank account or Wooten’s

campaign account.[7 RR 104-05.] 
23

On February 13, 2008, Spencer had $1,180.97 in his bank

account and Wooten had $5,885.06 in her campaign account.

[SX 94.] On February 15, 2008, another $25,000 check from

Stacy was posted to Spencer’s bank account. [7 RR 108.] After

deposit of that check, Spencer’s bank balance was $25,000.92.

[SX 94.] Spencer used the money in his account after that

deposit to purchase cashier’s checks on February 20, 2008

totaling $10,000 to pay invoices for radio advertisements.[7 RR

108.] Absent the $25,000 from Stacy, neither Spencer’s bank

account nor Wooten’s campaign account had sufficient funds for

payment of the radio stations’ advertising invoices.[7 RR 108-

09.] 

On February 26, 2008, a $25,000 wire transfer from Stacy

posted to Spencer’s bank account. [7 RR 110.] Prior to that

deposit, Spencer had $5,565.18 in his bank account and Wooten

had $5,166.58 in her campaign account. [SX 94.] The day

Stacy’s wire transfer was made, Spencer made additional radio

advertisement purchases in the amount of $14,454.25, as well

as payments to the THSC Political Action Committee for a

mailer and to an assistant. [7 RR 111, 113-14.] Without the

$25,000 payment from Stacy, Spencer did not have sufficient

funds in his bank account, and Wooten did not have sufficient

funds in her campaign account, to pay those campaign

expenses. [7 RR 112, 114.] 

On March 7, 2008, after the March 4, 2008 Republican

primary, Stacy wire-transferred a fifth payment to Spencer in

the amount of $10,000. [7 RR 118.] At the time of that transfer,

Spencer had $11,707 in his bank account, and Wooten had

$2,710.08 in her campaign account. [SX 94.] Approximately one

hour after the $10,000 wire transfer, Spencer purchased a

cashier’s check in the amount of $10,000 made payable to

Clements. [7 RR 118.] A sixth payment by wire transfer in the

amount of $15,000 was made by Stacy to Spencer on March 13,
7 Wendy Kelly, an investment analyst at the financial planning firm of

Paladini Financial, testified that Stacy was a customer of Paladini Financial. [4

RR 4-5.] On the morning of January 3, 2008, Stacy requested that Kelly wire

$50,000 from one of her accounts to Security State Bank, Fredericksburg, Texas,

for the benefit of Spencer. [4 RR 6-7.] The wire transfer did not successfully

transmit. [4 RR 8-9.] Kelly contacted Stacy and advised her that the wire

transfer had failed and that there was additional paperwork Stacy needed to

24

2008. [SX 94.] On March 14, 2008, that payment was posted to

Spencer’s bank account. [Id.] 

Swihart reviewed phone and email records of Stacy,

David, Clements, Spencer, and Wooten. Swihart testified

regarding the dates and times of communications among those

individuals and others. [7 RR 160-62.] The first communication

Swihart was able to document between Spencer and David and

Stacy was September 21, 2007. [7 RR 164.] Swihart was able to

document a telephone call from Wooten to Spencer on

December 20, 2007. [7 RR 164.] Swihart testified regarding

communications occurring around the dates of payments from

Stacy to Spencer. [7 RR 164-213.] Swihart also testified

regarding communications occurring around the dates of events

in matters before the 380th Judicial District Court after

Wooten became judge of that court. 

At 3:40 p.m. on January 2, 2008, Wooten filed as a

candidate for the 380th Judicial District Court. [7 RR 176.]

Moments before that filing, Wooten spoke to Spencer by

telephone. [Id.] After Wooten filed as a candidate, Spencer

communicated with David.[Id.] Between 6:49 p.m. and 9:45

p.m. that night, Spencer communicated with David on David’s

cell phone, with Wooten on her cell phone, and with David,

Stacy, or both, on the telephone at the Cary home. [SX 98C.]

At 10:17 a.m. on January 3, 2008, Paladini Financial

requested a third-party wire transfer from one of Stacy’s

accounts to Spencer in the amount of $50,000.7

 [7 RR 178.]
complete before a third-party wire transfer could be accomplished. [4 RR 10-11.]

Stacy then transferred money from one of her accounts to an account at Tolleson

Private Bank, which was able to wire transfer $50,000 to Spencer. [4 RR 11-12.]

25

There were two attempts by Spencer to reach David and Stacy’s

home phone during that day, and David spoke to Spencer from

1:13 p.m. to 1:23 p.m. [SX 98C.] At 4:49 p.m., Stacy was sent

new wiring instructions because the earlier wire transfer could

not be completed. On January 4, 2008, the date of the first wire

transfer to Spencer from Stacy, Spencer had three telephone

communications with someone on David and Stacy’s home

phone.[7 RR 179-80.] Swihart assumed those conversations

were with Stacy as they occurred during the work day; David

worked outside the home and Stacy had an office in her home

from which she worked. [7 RR 180.] After the wire transfer of

$50,000 was posted to Spencer’s account at 4:34 p.m., Spencer

telephoned Wooten’s office. [Id.] Thereafter, there was a brief

telephone call to Spencer from David. 

On January 29, 2008, the night before the second

payment by Stacy to Spencer, Spencer telephoned David’s cell

phone. [7 RR 184-85.] Immediately thereafter, either David or

Stacy telephoned Spencer from David and Stacy’s home phone.

[7 RR 185.] Spencer then telephoned Wooten. [Id.] After the

telephone call to Wooten, Spencer telephoned David and Stacy’s

home. [Id.] Stacy made a second payment to Spencer on

January 30, 2008, and Spencer deposited that payment on

February 1, 2008. [Id., SX 94, 98C.] That payment posted to

Spencer’s bank account on February 4, 2008. [Id.] On February

5, 2008, Spencer sent an email to Wooten that Sandoval

“cannot match our resources,” even though Wooten had raised

only $3,620 from campaign contributions at that time. 

On February 14, 2008, Stacy made her third payment to

Spencer. [7 RR 186.] On that day, Spencer exchanged text

messages by phone with David between 5:12 p.m. and 5:23 p.m.

[7 RR 187, SX 98C.] Between 5:34 p.m. and 5:46 p.m., Spencer
26

then communicated in succession with Wooten, Clements, and

David. [7 RR 188.] Stacy’s third payment to Spencer posted to

his account on February 15, 2008. [Id.] 

On February 26, 2008, Stacy made her fourth payment to

Spencer. [7 RR 188-89.] At 4:41 a.m., Spencer’s assistant

confirmed to Spencer by email that radio advertising time had

been purchased for Wooten’s campaign. [SX 98C.] At 5:24 a.m.

and 6:59 a.m., David received text messages from Spencer. [Id.,

7 RR 189.] At 9:17 a.m., Stacy sent instructions to Tolleson

Private Bank to wire $25,000 to Spencer. [Id.] At 2:14 p.m., the

wire transfer was posted to Spencer’s account. [Id. At 2:37 p.m.

and 2:53 p.m., Spencer’s wife, Kipling Spencer, purchased

cashier’s checks for payment of Wooten campaign expenses

from the funds wired to Spencer’s account by Stacy. [Id., 7 RR

191.] 

. . .

On March 4, 2008, Wooten won the Republican primary.

On March 7, 2008, Stacy made the fifth payment to Spencer. [7

RR 192-93.] On March 7, 2008, between 7:07 a.m. and 8:29

a.m., Spencer text-messaged four times with David. [7 RR 193-

94, SX 98C.] Clements text-messaged Spencer at 8:17 a.m. [Id.]

David and Stacy had three phone conversations between 8:45

a.m. and 9:10 a.m. Between 9:23 a.m. and 10:02 a.m., Spencer

and David exchanged thirteen text messages. [Id.] At 10:47

a.m., Stacy attempted to reach David by telephone. [Id.] At

10:58 a.m., Stacy sent instructions to Tolleson Private Bank to

wire $10,000 to Spencer. [Id.] At 11:40 a.m., David textmessaged Spencer. At 2:51 p.m., the wire transfer of $10,000

posted to Spencer’s bank account. [Id.] Between 3:21 p.m. and

3:52 p.m., Spencer and David exchanged eleven text messages.

[Id.] At 3:59 p.m., Kipling Spencer purchased a cashier’s check

made payable to Clements in the amount of $10,000. [7 RR

194.] 
27

Between 6:24 p.m. and 6:31 p.m. on March 13, 2008, the

day of the sixth payment from Stacy to Spencer, Spencer text

messaged David six times. [7 RR 195, SX 98C.] At 9:41 p.m.,

Stacy sent instructions by email to Tolleson Private Bank to

wire Spencer $15,000. [Id.] On March 14, 2008, the sixth

payment from Stacy to Spencer in the amount of $15,000 was

posted to Spencer’s bank account. [Id.] 

On January 2, 2009, Wooten was sworn in as judge of the

380th Judicial District Court. At 9:59 a.m. on February 27,

2009, Benavides’s pleading regarding her appearance on behalf

of Jennifer in the SAPCR case pending in Wooten’s court was

file-stamped. [7 RR 196.] At 11:03 a.m., there was a one-minute

phone call between Spencer and David’s cell phone. At 11:04

a.m., there was a two-minute telephone call from Spencer to

Benavides’s cell phone. At 11:06 a.m., Spencer attempted to call

David. [7 RR 197.] Between 11:08 a.m. and 11:13 a.m., there

was a telephone call from David to Spencer. [Id.] Between 11:14

a.m. and 11:17 a.m., there was a telephone call from Spencer to

Benavides. [Id.] From 11:18 a.m. to 11:21 a.m., there was a

telephone call from Spencer to David. [Id.] 

Swihart testified regarding events of March 2, 2009. [7

RR 198-200.] On that date, Wooten was still presiding over the

SAPCR involving David and Jennifer. Wooten and Spencer

were communicating by text message. In the midst of their text

messages, Spencer telephoned Judge Oldner’s office. . . . On

March 2, 2009, Spencer and David exchanged thirty-one text

messages. [SX 98C.] On March 3, 2009, there were eight text

messages between Spencer and David. [Id.] On March 4, 2009,

Wooten recused herself from the SAPCR involving David and

Jennifer. [SX 7A.] There was one phone call between Spencer

and David that day. 

Swihart testified regarding Wooten’s campaign

expenditures and Spencer’s invoices to the Wooten campaign
8

(Footnote omitted.)

9 Although the State-Appellee has re-formatted and edited the summary

of Spencer’s testimony from this Court’s Stacy opinion, the content primarily

quotes Stacy, 2010 WL 4261233, *6-14. 

28

for the period January 7, 2008 through August 29, 2008. [7 RR

144-53, SX 97.] Swihart compiled a summary of those expenses

and invoices from forty-two exhibits and testimony from a

previous hearing.8 Swihart testified that pre-election

expenditures on behalf of the Wooten campaign for the period

January 1, 2008 through the Republican primary on March 4,

2008 totaled $81,215.26. The total amount of contributions

deposited in Wooten’s campaign account for that period was

$12,370. Swihart testified that Spencer spent about $118,000

on Wooten’s campaign, and Wooten actually paid back only

about $102,000 of that amount. [7 RR 156.] 

Swihart testified David had a motive to bribe Wooten.

Swihart explained there was a connection between the money

Stacy paid to Spencer and the money Spencer spent on behalf

of the Wooten campaign, and there was a connection among

Stacy, David, Spencer, and Wooten. [8 RR 139-45, 68-73.] . . .

2014 WL 4261233, *3-24. 

James Stephen Spencer 9

Spencer testified that he was charged with “essentially the same

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

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

Spencer had an employment background in health care

administration, but for the past fifteen years has done independent

consulting work in areas ranging from marketing to finance, with some
29

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

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

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

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

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

Capitol in Austin. 3 RR 171. 

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

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

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

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

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

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

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

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

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

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

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

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

passed.” 3 RR 225. 

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

of Representatives from 2004 to 2008, put Spencer in touch with David and
10 Poinsett testified that in 2007, he met with Spencer, who was

interested in issues related to family law and, specifically, issues related to

grandparents’ access to children. 3 RR 11-12. Also in 2007, Poinsett met with

David and Stacy, and they spoke with him about “fathers’ rights,” meaning “who

would have the most rights to a child in the event of divorce or what factors

would be considered as to whether the father got more custody or the mother.”

3 RR 17-18. 

30

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

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

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

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

A. Spencer’s consulting work with Stacy and TDI A. Spencer’s consulting work with Stacy and TDI

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

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

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

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

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

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

discussed his interest in providing her consulting services in the following

areas: 

1. Assessment of possible investment in new pumping

technology; 

2. Analysis of the U.S. electric marketplace, and potential

investment in SmartGrid-related ventures;
31

3. Assistance in assessing and securing counsel in

anticipation of and for contemplated litigation; and

4. Assessment and proposal for family-centered advocacy,

with an emphasis on parental rights.

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

culminated in an Acknowledgment of Engagement letter dated October 1,

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

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

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

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

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

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

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

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

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

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

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

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

“Engagement Letter for Outsourced Marketing Services” relating to

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

RR 115-22. 
32

Spencer testified regarding certain aspects of those two documents,

including: 

• The consulting agreement was not signed by Stacy and was

dated prior to the date Spencer testified he first met Stacy

on October 2, 2007. 3 RR 240. 

• The TDI Engagement Letter for Outsourced Marketing

Services was signed by William Johnson, Chief Executive

Officer of TDI, on October 14, 2009, however the date of

Johnson’s signature was the day before the date of the

engagement letter. 4 RR 119. 

• Spencer’s consulting agreement with Stacy and the TDI

engagement letter each indicate the term of the agreement

ended on December 31, 2009. 3 RR 238, 4 RR 120-21.

• Spencer did not perform any work for Stacy after August 1,

2008 that had not been “prepaid,” despite his invoice

indicating one project was completed, one project suspended,

and the two remaining projects were “pending.” 4 RR 17-21,

122; SX 137. 

• Stacy’s consulting agreement (dated October 1, 2007) and

the TDI Engagement Letter for Outsourced Marketing

Services (dated October 15, 2009) both contain an identical

phrase relating only to TDI: “[a]ny additional time spent on

TDI’s behalf is part and parcel to, and inclusive of this

engagement.”4 RR 120-211, 5 RR 94-95. 

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

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

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

96. 
33

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to Stacy concerning DHI which included eighteen pages of DHI financial

statements contained in a private offering memorandum given to Spencer

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

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

DHI was a good investment for her. Id. 
34

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

with Spencer their experience in meeting with legislators and advocating

for change in laws relating to parental rights. 3 RR 188. Spencer testified
35

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

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

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

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

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

3 RR 189-95. 

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

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

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

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

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

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

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

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

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

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

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

success rates of particular attorneys appearing before Sandoval; asking

several people about Sandoval, including “some interested family rights

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

enrollment in a drug program. 3 RR 201-07. Spencer learned that in the
36

history of Collin County, there had never been a challenger to a sitting

district judge. 3 RR 208. 

With regard to identifying potential candidates to run against

Sandoval, Spencer believed he telephoned several people for

recommendations. Spencer testified that he contacted attorney Puhl

regarding running against Sandoval. 3 RR 204-10. Spencer told Puhl he

could provide operational support, grassroots support, and organizational

support. 3 RR 207-08. Spencer told Puhl that he would help him raise

money for the race if he committed to run. Id. Spencer told Puhl he thought

it would require between $100,000 and $150,000 to run a “successful, to

even run a notable challenge.” 3 RR 208. Spencer acknowledged that very

few lawyers would want to contribute to a campaign in opposition to

Sandoval. 3 RR 215. Spencer knew that anyone running against Sandoval

would not raise much money from attorneys before election day and that

most contributions to judicial campaigns are made by lawyers. Id. Puhl

declined to run against Sandoval. 3 RR 209.

Spencer called Puhl’s former law partner, Brian Loughmiller, about

running against Sandoval, but Loughmiller declined to run against

Sandoval. 3 RR 210-12. Loughmiller told Spencer he did not think

Sandoval was going to be defeated in the next election cycle. 3 RR 211. 

Spencer testified that Wooten’s name, as a potential candidate to run

against Sandoval, came up “in a conversation.” 3 RR 216. In October or
37

November of 2007, Spencer contacted Dodd. 3 RR 212-16. Spencer told

Dodd he was looking for a candidate to run in the Republican primary

against Sandoval, and he had heard the Democratic Party was recruiting

Wooten to run for office. 3 RR 212-13. Spencer learned Wooten was

interested in running but had declined to run as a Democrat. 3 RR 218. 

Spencer testified he telephoned Wooten in mid-December 2007, in

advance of the January 2, 2008 deadline to file as a candidate for the

March 4, 2008 Republican primary. 3 RR 217-18. Spencer told Wooten the

campaign would cost $100,000 to $150,000, and Wooten thought that was

a reasonable estimate. 4 RR 23-24. Spencer told Wooten he would do

everything he could to be supportive of her campaign. 4 RR 24. 

In 2005 or 2007, Spencer met Hank Clements, a registered lobbyist,

who also had political campaign experience. 3 RR 181. Clements was very

knowledgeable about political advertising, including purchasing radio

broadcasting time and preparation of mail, flier, and sign advertising. Id.,

4 RR 26. Clements’s original quote to Spencer for working on a district

court judicial campaign was $50,000, but Spencer negotiated his fee to

$15,000 up front (paid in two payments of $7,500), and a $10,000 victory

bonus. 4 RR 41. Wooten eventually spoke to Clements in the latter half of

December 2007. 4 RR 23-25. Ultimately, Clements worked on the Wooten

campaign and was paid $25,000 for his services. 
38

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

Between January 1, 2008 and March 15, 2008, Stacy paid Spencer

$150,000 in the form of checks and wire transfers. 3 RR 247-48; 4 RR 41-

43, 65. Spencer testified this compensation related to his consulting

agreement with Stacy, although he had not yet submitted or completed any

projects at that point. 3 RR 246-47. 

At the time he was recruiting Wooten as a candidate for the 380th

Judicial District Court, and when Wooten agreed to run for election,

Spencer was receiving money from Stacy. 4 RR 173-87. He admitted that,

without the $150,000 from Stacy, he probably would not have been able to

pay for all of Wooten’s campaign expenses but–in his mind–he was

spending “his” money on Wooten’s campaign. 4 RR 41-44, 174. Spencer

testified he believed Wooten would pay him back and she did. 4 RR 88-89.

Spencer denied that David and Stacy were the “resources” he alluded to

within an email regarding Wooten’s available resources in comparison to

Sandoval’s, and Spencer also denied Wooten relied on the Carys’ money to

finance her campaign by suggesting Wooten could have financed some of

her campaign expenses with the line of credit she had taken. 4 RR 128-29.

However, Spencer admitted that she did not use her line of credit during

the campaign. 4 RR 129. 

On the evening of March 4, 2008, the day Wooten won the Republican

primary, or on March 5, Clements called Spencer for his $10,000 victory
39

bonus. 4 RR 63-64. On March 7, 2008, the fifth transfer of money from

Stacy to Spencer occurred in the amount of $10,000. 4 RR 65. On March 6,

2008, Spencer’s bank balance was $2,407.69. 4 RR 64. After the transfer

of $10,000, Spencer’s bank balance was $11,707. 4 RR 65. Within an hour

of Stacy’s March 7, 2008 wire transfer of $10,000 to Spencer’s account,

Spencer’s wife purchased a cashier’s check for payment of Clements’s

$10,000 victory bonus. Id., SX 1. The sixth transfer of money from Stacy to

Spencer occurred on March 14, 2008, in the amount of $15,000. 

Copies of Spencer’s invoices and his “working copy” of bills to

Wooten’s campaign were admitted in evidence. 5 RR 35-47, 81-83. Spencer

invoiced Wooten’s campaign $4,536.75 on February 20, 2008, $2,409.25 on

March 4, 2008, $10,009.25 on March 23, 2008, $12,000 on April 16, 2008,

$15,000 on April 25, 2008, and $5,000 on May 26, 2008. Id. On May 29,

2008, Spencer invoiced Wooten’s campaign $84,368.75, with credits and

adjustments of $51,929.82 for payments between February 13, 2008 and

April 28, 2008, leaving a balance due of $37,438.93. 5 RR 82. Spencer

invoiced Wooten’s campaign $9,241.50 on June 3, 2008. By invoice dated

July 1, 2008, Spencer’s cumulative bill to Wooten showed she still owed

Spencer $33,369.91. 5 RR 45-48, 115. 

In the cover letter forwarding Spencer’s May 29, 2008 invoice to

Wooten, he advised that “we recognize your July filing deadline with the

Ethics Commission, and will render a supplemental Invoice to your office
40

in June.” 5 RR 84-85. Spencer testified he knew Wooten needed

information regarding amounts spent or incurred for the benefit of her

campaign in order to report these items properly on her campaign finance

report filed with the Ethics Commission.5 RR 83-84. Spencer believed a

candidate is required to report not only campaign contributions and

expenses on campaign finance reports, but also must list funds the

candidate holds in a campaign account on a given date. Spencer testified

he did not prepare Wooten’s campaign finance reports, but when asked, he

provided the information she needed to prepare the reports. See 5 RR 83-

84. 

D. Communications D. Communications

According to Spencer, he did not reveal details about his business

relationship with Wooten to the Carys, or the Carys’ business with Wooten.

4 RR 173-74. Spencer testified he did not provide information to David and

Stacy about Wooten’s campaign, and had told David that David could not

participate in supporting the campaign. 4 RR 127-29. Spencer went to

David’s office at some point during Wooten’s campaign and saw a Wooten

campaign sign there. 4 RR 128. 

Spencer also testified regarding the events surrounding Wooten’s

recusal in March 2009 from David’s SAPCR. 4 RR 130-34. Spencer

acknowledged at trial that David contacted him to advise him that an

answer had been filed for Jennifer in the SAPCR by Benavides. 4 RR 131.
41

Benavides, Wooten’s campaign treasurer and an associate with the law

firm with which Wooten practiced before her election, filed an answer on

behalf of Jennifer on February 27, 2009 at 9:59 a.m., in advance of a March

2, 2009 hearing before Wooten. 5 RR 88; SX 217. David called Spencer,

mentioning Benavides was Jennifer’s new counsel. 4 RR 132-33. Spencer

testified that he called Benavides because of this information, and he knew

that Benavides had been Wooten’s campaign treasurer. Id. 

But phone records show that David called Spencer at 11:03 a.m., and

the two talked for “a minute,” after which Spencer called Benavides, but

not at David’s request. 5 RR 88-90, SX 8A. David then called Spencer and

spoke to him for several minutes. 5 RR 90-91, SX 8A. After speaking with

David, Spencer talks with Benavides by phone, and then calls back David

at the end of his call with Benavides. 5 RR 91, SX 8A. Spencer maintained

at trial that he did not discuss with David any of those phone calls with

Benavides. Id. 

A June 9, 2009 email exchange between David and Spencer was

admitted in evidence regarding a June 8, 2009 decision of the United

States Supreme Court in Caperton v. A.T. Massey Coal Co., 556 U.S. 868

(2009), a case involving judge recusal. 4 RR 133. Spencer’s email to David

included the following text from an article about the decision: 
42

Today’s decision by the U.S. Supreme Court that judges who

receive campaign contributions large enough to create the

appearance of bias should recuse themselves.... In Caperton v.

Massey, the nation’s high court ruled 5–4 that because a West

Virginia Supreme Court justice received $3 million in campaign

contributions from an energy company executive, the judge

should not have taken part in a decision affecting the

executive’s company.

4 RR 133-34. Spencer emailed David that “I think you’ll understand why

I’m interested in this subject matter.” Id. David then emailed the article

to Spencer. 4 RR 135. Spencer denied that the reason he and David were

interested in the news article was because Stacy’s money was used to

finance Wooten’s campaign. 4 RR 135-36. Instead, Spencer indicated that

he was interested in the article as it pertained to another family he had

heard about, in which the grandparents had filed and successfully obtained

custody of the granddaughter after the girl’s mother had passed away. 4

RR 136. When questioned by the State as to why Spencer had not ever

mentioned this reason in any previous hearings, Spencer responded that

he had never been asked about his interest in the article at those hearings.

Id. But Spencer acknowledged that, at the time he and David exchanged

the above email, a motion for recusal was pending before Wooten. 4 RR

135. 
11 The State-Appellee presents its own summary of Valentine’s testimony,

except for the portion marked as quoted.

43

John “Jay” Valentine11

John “Jay” Valentine testified that he served on a board of directors

with Appellant beginning in 2000 or 2001, and the two remained friendly

after their service term ended. 8 RR 148. Appellant later contacted

Valentine about working for TDI, and Valentine joined the software

company in November of 2007 as vice president of sales and marketing.

8 RR 148-49, 174. 

Earlier in 2007, Appellant told Valentine that he was going through

“a family situation,” though Valentine did not recall if it was a divorce or

custody suit. 3 RR 152. Appellant indicated that he “was making efforts

to change family law through an organization he was involved in,” and also

“trying to make some changes in one of the elected officials” to “change

some rulings that he had had.” 8 RR 152. Appellant did not directly name

Judge Sandoval as the elected official, but did convey that Judge Sandoval

had “made an adverse set of rulings” against him; Valentine recalled that,

over several conversations through early 2008, Appellant had said that he

“hired an individual through the Speaker of the House’s office in the State

Capitol and was working with that person, and that they were running a

campaign to get rid of this Mr. Sandoval.” 8 RR 152-54. Valentine later

learned that individual hired by Appellant was Spencer. 8 RR 154-55.
44

Valentine testified that he saw campaign signs for Wooten in Appellant’s

office. 8 RR 154-55. 

In October or November of 2008, the TDI sales team was “really

struggling” and having difficulty selling the software; Appellant told

Valentine he should hire Spencer because “he’s a fixer.” 8 RR 156-57.

When Valentine met Spencer in November or December of 2008, Spencer

told him that Spencer “could help [TDI] in some of the things because he

knew all these legislators.” 8 RR 158. Spencer gave Valentine the

impression that he had worked with Appellant on the “Sandoval situation,”

which involved a hard campaign” but they succeeded in “boot[ing] out Mr.

Sandoval.” Id. Spencer commented several times that he “owned” Wooten,

and “that she was going to help in their endeavor for making some

changes”—specifically, reverse the adverse rulings in Appellant’s divorce

or child-custody case. 8 RR 158-59. 

Although Valentine resisted hiring a “lobbyist” who knew nothing

about TDI’s software, Appellant was “really driving the effort to bring

Stephen Spencer;” Spencer was eventually hired as a consultant. 3 RR

159-60. Both Spencer and Appellant commented “several times” to

Valentine that “Spencer was hired to fix David Cary’s divorce case.” 8 RR

173. 

In March 2009, Valentine complained about Spencer to the

TDI Board of Directors and demanded an outside investigation

of Spencer by the Board based on an incident Valentine thought
12 David Stinnett was not called to testify at Stacy’s trial.

45

was a basis for TDI severing its relationship with Spencer. [8

RR 165-67.] Valentine’s complaints about Spencer related to

Spencer’s interaction with a female marketing director while on

a business trip. [8 RR 161-62, 166.] In an email and

memorandum setting forth his complaints about Spencer,

Valentine also included information about the claims David and

Spencer had made about getting Wooten elected and what

Wooten was going to do in connection with David’s family law

matters. [8 RR 162-66, SX 104, 105.] . . . [To Valentine’s

knowledge, the Board took no investigative action. 8 RR 166.]

. . . TDI fired Valentine in April 2009. [8 RR 169.] In June

2009, Valentine filed an employment discrimination claim

against TDI. [8 RR 166-67.] In the employment discrimination

complaint, Valentine asserted that David and Spencer had told

him about their role in getting Wooten elected and bragged

about bribing a judge. [8 RR 167-68 (SX 104, 105 marked as

exhibits, submitted with Valentine’s EEOC complaint), see 8

RR 163-67.] Valentine testified that the reason he included

those claims in his employment discrimination complaint was

to show David’s conflict of interest with regard to Spencer. [See

8 RR 166-67.] Valentine testified that his employment

discrimination claim against TDI was arbitrated, resulting in

an arbitration award in his favor. [8 RR 170-71.]

2014 WL 4261233, *25. 

David Stinnett12

Between 2008 and 2010, David Stinnett worked at TDI as a sales

manager, and interacted with Appellant at work. 8 RR 190-91. Stinnett

testified that Appellant “was pretty passionate about family law and

family protection” and told Stinnett on several occasions how “Collin
46

County, itself was – he felt like there was some crooked judges in the

county as relating to his personal experience with them.” 8 RR 192-93. In

late 2008, Stinnett met Spencer, whom Stinnett was told “was just a

person of influence within the state itself, and that he could help [TDI] by

influencing people within the State of Texas to have meetings[.]” 8 RR 194.

But during Stinnett’s career with TDI, Spencer “arranged” two meetings

that Stinnett attended, one with an associate from Austin Energy and the

other with the Department of Information Resources; neither meeting

resulted in sales, and not for lack of effort on Stinnett’s part. 8 RR 199-202.

Stinnett also testified that, during their return drive from one of

those meetings, Spencer made a phone call, asking the other party if that

person was “willing to run for judge” and that he “had the funding able to

find” him. 8 RR 203. After ending the call, Spencer told Stinnett that he

had worked with Appellant, and “[t]here was a judge up in Collin County

that we helped get removed and replaced,” and that was how he spent his

time “on the side kind of doing some of this stuff.” 8 RR 204. Also, “by

taking what Stephen Spencer had talked about and the information David

Cary had given [him],” Stinnett testified that he “put two and two

together” and understood Appellant had “the judge in his child-custody

case removed from office,” particularly after Appellant had stated “how

they[sic] were some dirty judges [within Collin County] and that he’s
13 Brian Webb was not called to testify at Stacy Cary’s trial.

47

particularly worked on getting a judge removed out of office and replaced

with somebody else.” 8 RR 205. 

It appeared to Stinnett that Spencer and Appellant were good

friends, and Appellant also told Stinnett that he and Spencer “had worked

together to get a judge replaced within Collin County.” 8 RR 195, 209. On

cross-examination from Appellant’s counsel, Stinnett admitted neither

Spencer nor Appellant had mentioned a specific judge, and he hadn’t

“take[n] it in any kind of nefarious or illegal or bad way.” 8 RR 217. But

upon re-direct, Stinnett clarified that his impression was that Appellant

and Spencer had “actively sought a candidate to replace the judge that he

was displeased with,” as Stinnett had had no knowledge prior to trial of

campaign signs placed by Appellant, or that Spencer was “a manager or

anything at that time” for Wooten’s campaign. 8 RR 218-19. Stinnett also

denied knowing over what matters or cases the judge whom Spencer and

Appellant were “targeting” handled. 8 RR 219. 

Brian Webb13

Brian Webb is an attorney who has practiced family law since 1975.

6 RR 20. At the time of Appellant’s trial, he was the President of the Texas

Family Law Foundation, “an organization of family lawyers that tries to

influence the legislature regarding family law legislation, statutes, pro and

con.” 6 RR 21. Webb testified that the first legislative session that the
48

foundation visited was in 2007. 6 RR 22. One day during that session,

Spencer approached him about a bill Spencer had drafted relating to

grandparents’ rights and parents’ rights. 6 RR 23. Webb and the Texas

Family Law Foundation suggested some changes to create an “acceptable

alternative bill,” but Spencer “and those supporting him really weren’t

interested in the changes we were wanting to make.” 6 RR 24. Webb also

denied that Spencer ever called him to “ask for advice about getting a

candidate to run against Charles Sandoval;” denied telling Spencer he will

not practice in Collin County because of Judge Sandoval; and denied

considering himself “to be someone that Stephen Spencer could call and bat

ideas around with.” 6 RR 24-25. 

SUMMARY OF THE ARGUMENTS

Appellant raises three claims of insufficient evidence, one claim of

ineffective assistance of counsel, and two claims that the bribery statute

is unconstitutional as applied to Appellant and on its face as vague and

overbroad. In his first point of error, Appellant claims the evidence is

insufficient to sustain his six convictions for bribery because, (A) the

evidence showed that monies paid by Appellant’s wife under his direction

were consisted of “political contributions”; (B) the State could not prove

Wooten was a “public servant” at the time she allegedly considered

becoming a judicial candidate in exchange for benefits offered or given by

Appellant, as the decision to [run for candidacy] is made as a private
49

citizen; (C) the State failed to demonstrate that Wooten ever considered

leaving the judicial race, and thus the State did not meet its burden of

proof in demonstrating Wooten proceeded and continued with her judicial

campaign in exchange for benefits offered or given by Appellant; (D) there

was no evidence that supported Wooten had agreed to issue favorable

rulings in Appellant’s civil cases in exchange for the benefits offered or

given by Appellant; and (E) the State failed to demonstrate Appellant had

the requisite intent to commit bribery. In his third point of error,

Appellant claims the evidence is insufficient to sustain his conviction for

money laundering, given that the State failed to demonstrate Appellant

committed the alleged predicate crime of bribery for the reasons listed in

Appellant’s first point of error. In his second point of error, Appellant

claims there is insufficient evidence to support the jury’s finding of guilt in

the charge of engaging in organized criminal activity (“EOCA”), as the

State failed to prove any of the alleged predicate crimes-bribery, money

laundering, or tampering with a government record-were committed. But

the evidence adduced at trial disproves these arguments and demonstrates

Appellant’s guilt. 

In his fourth point of error, Appellant alleges that trial counsel was

ineffective because he failed to file timely amended election of punishment

by the court, arguing that if counsel had timely amended the election,

counsel would have been able to present evidence of the sentences received
14 In his opening brief, Appellant did not frame his argument with

reference to explicit “points of error.” As a result, the State has organized its

argument in the order that it believes the Court may best proceed to resolve this

appeal. See Tex. R. App. P. 38.2(a)(C) (West 2014). 

15 Although the Court’s opinion in Stacy Cary v. State is

unpublished–and, hence, does not bind the panel Court under principles of stare

50

by Wooten and Stacy Cary for their participation in the offenses were

relevant to Appellant’s sentencing. Appellant, however, is incorrect

because, the Court of Criminal Appeals has held that a defendant has no

right to present evidence of a co-defendant’s punishment as mitigating

circumstances. 

And in his final two points of error, Appellant claims that the bribery

statute, Section 36.02(a)(1),(4), is unconstitutional as applied to him and

the statute is vague and overbroad on its face. First, Appellant failed to

preserve the issues for appeal and is estopped from asserting a claim that

is inconsistent with his prior conduct at trial. Regardless, courts have

already found that bribery is not protected by the First Amendment. 

ARGUMENT

I. STATE’S REPLY TO POINT OF ERROR ONE I. STATE’S REPLY TO POINT OF ERROR ONE14

In his first claim, Appellant alleges that the evidence adduced at trial

is insufficient to sustain his six convictions for bribery. Brief at 13-31.

But, as this Court already determined when it overruled the legal

sufficiency argument in the Stacy Cary appeal,15 the evidence, when
decisis–because the evidence in both appeals is largely identical, the State

contends that the Stacy Cary appeal has persuasive authority, as would any

unpublished opinion of this Court.

51

viewed in the light most favorable to the verdict, demonstrates that a

rational trier of fact could have convicted Appellant of bribery beyond a

reasonable doubt; hence, the Court should overrule Appellant’s point of

error number one. 

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

challenges. challenges

The Texas Court of Criminal Appeals has mandated that the

sufficiency of evidence standard established in Jackson v. Virginia, 443

U.S. 307 (1979) is the only standard to be used in a criminal case. Brooks

v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.); see e.g.

Ervin v. State, 331 S.W.3d 49, 52-56 (Tex. App.-Houston [1st Dist.] 2010,

pet. ref’d). On review, all evidence, and any reasonable inferences from the

evidence, is viewed in the light most favorable to the verdict and it is

determined whether any rational trier of fact could have found the

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at

319; Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). 

The jury is the exclusive judge of witness credibility and the weight

of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010). The jury also resolves or reconciles conflicts in the evidence in favor

of the verdict. Id.; Jackson, 443 U.S. at 326. “An appellate court
52

determines whether the necessary inferences are reasonable based upon

the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.” Ervin, 331 S.W.3d at 55. The

appellate court must view both direct and circumstantial evidence equally

when reviewing the record based on a sufficiency of the evidence claim.

Jackson, 443 U.S. at 326; Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim.

App. 2007). The reviewing court does not resolve any conflict of fact,

reweigh the evidence, or evaluate the credibility of the witnesses. Garza

v. State, 841 S.W.2d 19, 21 (Tex. App.-Dallas 1992, no pet.). 

When a court’s charge authorizes the jury to convict on more than

one theory, the verdict of guilty will be upheld if the evidence is sufficient

on any one of the theories. Guevara v. State, 152 S.W.3d 45, 49 (Tex.

Crim. App. 2004). 

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

As relevant to this case, a person commits bribery if he intentionally

or knowingly offers, confers, or agrees to confer on another, any benefit as

consideration for (1) the recipient’s decision, vote, recommendation, or

other exercise of official discretion in a judicial proceeding, or (2) the

recipient’s decision, opinion, recommendation, vote, or other exercise of

discretion as a public servant. Tex. Penal Code Ann. § 36.02(a)(2), (1)

(Vernon 2008) (respectively). Also, it is an exception to the application of
16 Vasquez v. State, 665 S.W.2d 484 (Tex. Crim. App. 1984), overruled on

other grounds by Gonzales v. State, 723 S.W.2d 746 (Tex. Crim. App. 1987) (en

banc); see also Lawton v. State, 913 S.W.2d 542, 551 (Tex. Crim. App. 1995) (en

banc) (where State pleads alternative theories of same offense, it need not prove

guilt under all theories alleged), overruled on other grounds by Mosley v. State,

983 S.W.2d 249 (Tex. Crim. App. 1998).

53

either of those provisions-as relevant to Appellant-that the benefit is a

political contribution as defined by the Election Code. Id. at § 36.02(d).

When it is alleged that an individual offers, confers, or agrees to

confer on another, and the jury was properly instructed that proof of any

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

bilateral agreement is needed.16 Martinez v. State, 696 S.W.2d 930, 933

(Tex. App.–Austin 1985, pet. ref’d) (distinguishing from McCallum v. State,

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

required where indictment only alleged a single theory of bribery)).

Rather, in such an instance, the offense of bribery is complete when the

offer is made. Martinez, 696 S.W.2d at 933 and n.3 (noting the “McCallum

court’s understanding of the ‘as consideration for’ language found in §

36.02 and in Model Penal Code § 240.1 is not that of the model code

commentators”) (citing Model Penal Code § 240.1, Comment 4(b), (c)); see

Mustard v. State, 711 S.W.2d 71, 75 (Tex. App.–Dallas 1986) (“The offense

of bribery focuses on the mental state of the actor, and is complete if a

private citizen, by offering, conferring, or agreeing to confer intends an
54

agreement.”) (citing Hubbard v. State, 668 S.W.2d 419, 421 (Tex.

App.-Dallas 1984, pet. granted)). 

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

Appellant. Appellant.

Appellant was charged by indictment with committing six acts of

bribery, generally by “intentionally and knowingly offer, confer, and agree

to confer a benefit, . . . to Suzanne H. Wooten, a public servant, . . . as

consideration for Suzanne H. Wooten’s decision, opinion, recommendation,

vote, and other exercise of discretion as a public servant and as

consideration for Suzanne H. Wooten’s decision, vote, recommendation,

and other exercise of official discretion in a judicial proceeding[.]” 1 CR

159-64 (Counts Two through Seven, alleging a payment of $50,000.00 on

January 4, 2008; $25,000.00 on January 30, 2008; $25,000.00 on February

14, 2008; $25,000.00 on February 26, 2008; $10,000.00 on March 7, 2008;

and $15,000.00 on March 14, 2008, respectively). 

The jury charge instructed that Appellant may be found criminally

responsible for bribery, either as a primary actor or under the law of

parties. 2 CR 643-48. A party may be criminally responsible under the

law of parties in several ways. Hayes v. State, 265 S.W.3d 673, 678 n.4

(Tex. App.–Houston [1st Dist.] 2008, pet. ref’d). “An individual is

criminally responsible as a party to an offense if the offense is committed

by his own conduct, by the conduct of another for which he is criminally
55

responsible, or both.” Tex. Penal Code Ann. § 7.01(a). A person is also

criminally liable for an offense committed by the conduct of another if

“acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense.” Id. at § 7.02(a)(2). 

The jury charge instructed that Appellant may be found criminally

responsible for bribery, either as a primary actor or under the law of

parties. 2 CR 643-48. A party may be criminally responsible under the

law of parties in several ways. Hayes v. State, 265 S.W.3d 673, 678 n.4

(Tex. App.–Houston [1st Dist.] 2008, pet. ref’d). “An individual is

criminally responsible as a party to an offense if the offense is committed

by his own conduct, by the conduct of another for which he is criminally

responsible, or both.” Tex. Penal Code Ann. § 7.01(a). A person is also

criminally liable for an offense committed by the conduct of another if

“acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense.” Id. at § 7.02(a)(2). 

It is well-settled that a jury may be charged on the law of parties

even though no such allegation is contained in the indictment. Marable v.

State, 85 S.W.3d 287, 287 & n.2 (Tex. Crim. App. 2002) (collecting cases);

see Adames v. State, 353 S.W.3d 854, 861 (Tex. Crim. App. 2011)

(reaffirming that state and federal law both specify that due process does
56

not require defendant’s culpability as a party to be pled in charging

instrument), cert. denied, 132 S. Ct. 1763 (2012). “This rule applies not

only to the law of parties found in [s]ection 7.02(a)(2) [of the Penal Code]

but also the law of parties found in [s]ection 7.02(b).” Montoya v. State,

810 S.W.2d 160, 165 (Tex. Crim. App. 1989). 

With respect to sections 7.01 and 7.02(a)(2), a conviction under the

law of parties requires a showing that, at the time of the offense, the

parties acted together and contributed to a common purpose. Patterson v.

State, 950 S.W.2d 196, 202 (Tex. App.-Dallas 1997, pet. ref’d). In other

words, the State must show conduct constituting an offense, plus an act by

the defendant “done with the intent to promote or assist such conduct.”

Trenor v. State, 333 S.W.3d 799, 806 (Tex. App.–Houston [1st Dist.] 2010,

no pet.). To determine whether a defendant participated as a party, the

Court may examine events occurring before, during, and after the

commission of the offense and may rely on actions demonstrating an

understanding to commit the offense. See Ransom v. State, 920 S.W.2d

288, 302 (Tex. Crim. App. 1994). 

D. Theevidence evidence evidenceissufficient sufficient sufficienttosupport support supportthejury’sfindings findings findingsof

consideration considerationforfavorable favorable favorablerulings rulings rulingsandAppellant’s Appellant’s Appellant’sintent

to commit bribery. to commit bribery.

Appellant argues that there was insufficient evidence of bribery as

consideration for favorable rulings, and insufficient evidence to

demonstrate Appellant had the requisite intent to commit bribery. Brief
57

at 26-31. But the record reflects that the evidence presented at trial

supports the jury’s finding of guilt in all six charges of bribery committed

by Appellant. 

A person acts intentionally when it is his conscious objective or desire

to engage in the conduct or cause the result. Tex. Penal Code §6.03(a)

(Vernon 2008). A person acts knowingly with respect to the nature of his

conduct or to circumstances surrounding his conduct when he is aware of

the nature of his conduct or that the circumstances exist. Id. at § 6.03(b).

Intent or knowledge may be inferred from the accused’s acts, words, and

conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). When it

is alleged and proved that the defendant offered a proscribed benefit, it is

not necessary to further prove that the offer resulted in a bilateral

arrangement or unlawful contract with the other party. Watts v. State,

No. 09-11-00383-CR, 2012 WL 403859, *2 (Tex. App.-Beaumont 2012)

(mem. op..), citing Martinez, 696 S.W.2d at 933. And important here: The

offense of bribery is complete when the offer is made. Id. 

To prove that a person is a party to the offense, if not the primary

actor, the State must prove conduct constituting an offense plus an act by

the defendant done with the intent to promote or assist such conduct. Beier

v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). Since an agreement

between parties to act together in a common design can seldom be proved

by words, the State may rely on the actions of the parties to establish an
58

understanding or a common design to commit the offense, shown by direct

or circumstantial evidence. Ex parte Prior, 540 S.W.2d 723, 727-28 (Tex.

Crim. App. 1976); Miller v. State, 83 S.W.3d 308, 314 (Tex. App.-Austin

2002); Pesina v. State, 949 S.W.2d 374, 383 (Tex. App.-San Antonio 1997,

no pet.). 

Again, the reviewing court may look to events before, during, and

after the commission of the offense. Ransom, 920 S.W.2d at 302. There

must be sufficient evidence of an understanding and common design to

commit the offense. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.

2004) (citing Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App.

1985)). Each fact need not point directly to the guilt of the defendant, as

long as the cumulative effect of the facts are sufficient to support the

conviction under the law of parties. Id. As stated by the Beaumont Court,

when it reviewed a claim that the State failed to demonstrate the

appellant had intentionally or knowingly committed an illegal act: 

The jury bore the burden of deciding whether [Appellant]

merely wired money at [her son]’s direction under the belief

that [her son] was helping [a correctional officer] and the

inmates or acted with an understanding and common design to

commit the offense of bribery. See Hooper, 214 S.W.3d at 13;

see also Ransom, 920 S.W.2d at 302.

Watts, 2012 WL 403859 at *2-3. 

Similarly here, the jury bore the burden of deciding whether

Appellant had no part in the payments totaling $150,000.00, made by his
59

wife to Spencer, pursuant to a contract agreement for Spencer’s services-or

whether Appellant participated with an understanding and common design

to commit the offense of bribery. 

At trial, the State presented evidence that Judge Sandoval presided

over Appellant’s divorce proceedings-a “contentious” and “litigious” suit

which was finalized in the fall of 2004. 2 RR 99-101, 119. Within six

months of that final order, Appellant’s ex-wife filed a Petition to Modify the

Parent-Child Relationship, after several other motions had been mediated

or otherwise resolved-including the denial of Appellant’s motion for Judge

Sandoval to recuse himself, Appellant’s motion to transfer venue, and

Appellant’s writs of mandamus regarding Judge Sandoval’s rulings. 2 RR

106, 111-14, 117-21. Ultimately, Judge Sandoval entered an order

regarding the Petition to Modify, removing Appellant as joint managing

conservator of his daughters, and, among other rulings, for Appellant to

pay for his ex-wife’s attorney’s fees in excess of $416,000.00. 2 RR 126-27.

Rather than appeal, Appellant filed a new motion to modify nearly two

months later, plus another motion to transfer; the attorney who

represented Appellant’s ex-wife-an attorney who is board certified in

family law and who has practiced law for more than 30 years-testified he

believed those motions were “really a thinly veiled attempt simply to

transfer the case rather than to actually modify the support,” given that

he had never seen a motion requesting to increase the amount of child
60

support a petitioner should pay. 2 RR 128-30. Judge Sandoval ultimately

found Appellant was filing frivolous pleadings and sanctioned him

$50,000.00. 2 RR 132-37. 

The State also presented evidence that, in the same year as Judge

Sandoval’s rulings, Appellant felt there were “some crooked judges in

[Collin County] as relating to his personal experience with them,” namely

his child-custody proceedings. 8 RR 192. Appellant also told his former

colleague, Jay Valentine, that he “was trying to make some changes in one

of the elected officials . . . to change some rulings that he had had,” and

that he was working with someone in “running a campaign to get rid of”

that elected official. 8 RR 151-54. Although Appellant did not specify “who

the elected official was,” Appellant had mentioned, at some point, “a judge

named Sandoval” who was a “person that had made an adverse set of

rulings” against him. 8 RR 151-54. 

From this evidence, a rational jury could have reasonably concluded

that Appellant wanted Sandoval unseated from the bench so that Sandoval

would be removed from his cases. 
17 Except for the bracketed text, this summary of evidence was presented

in this Court’s opinion in Stacy Stine Cary v. State, No. 05-12-01421-CR, 2014

WL 4261233, *29-33 (Tex. App.-Dallas Aug. 28, 2014) (unpub.); although these

trials were severed, nearly the same evidence was produced at Appellant’s trial,

as indicated by the bracketed citations to Appellant’s trial records.

61

Additionally, the State presented the following evidence: 17

After being introduced to one another, Spencer and

Appellant exchanged emails, agreeing to meet on Tuesday,

October 2, 2007, at the home of Appellant and his wife in

Dallas. [3 RR 187-88.] . . . Spencer traveled from his home near

Austin, Texas to meet with [Appellant] and Stacy. [3 RR 162,

168-69.] Shortly after that meeting, Spencer reviewed the court

file in [Appellant]’s divorce case and [Suit Affecting the

Parent-Child Relationship] SAPCR and began contacting

individuals in Collin County to find a candidate to run against

Sandoval for the office of judge of the 380th Judicial District

Court. [3 RR 199-215.] The deadline for filing as a candidate in

that race was January 2, 2008. [3 RR 65, 224.] Therefore, there

was a limited amount of time to locate a candidate. Because

there was no Democrat candidate in that judicial race, the

winner of the Republican primary would be the elected judge

following the general election in the fall of 2008. [2 RR 146, 3

RR 70, 153.] 

In his discussions with Wooten, Spencer expressed his

belief that a successful campaign to unseat Sandoval would

require $100,000 to $150,000, and Wooten believed that was a

reasonable estimate. [3 RR 208, 4 RR 24.] The primary election

was to be held only two months after Wooten declared her

candidacy, and the evidence indicated it was not likely Wooten

could solicit significant campaign contributions in that limited

period of time, particularly since the majority of campaign

contributions in judicial races are made by lawyers and lawyers

are not readily inclined to make contributions to a candidate

seeking to unseat an incumbent judge. [2 RR 143-44.] Despite
62

this fund-raising challenge, Wooten agreed to run for election,

and she appointed Spencer, who had never before managed a

political campaign, to serve as her campaign manager. 

[Stacy made payments to Spencer and Spencer used a large

portion of those payments to make campaign expenditures for

the Wooten campaign at times when the campaign had not

raised enough money to cover them.] . . . For example, the day

following Wooten’s January 2, 2008 declaration of her

candidacy, Stacy attempted to wire transfer $50,000 to

Spencer. [4 RR 6-7.] When that wire transfer was unsuccessful,

Stacy wire transferred $50,000 the following day, January 4,

2008. [4 RR 8-9.] Before that wire transfer, Spencer had $2.39

in his bank account. [SX 94.] The evidence establishes Spencer

immediately began utilizing money transferred by Stacy to pay

campaign consultant Clements and other campaign expenses.

[7 RR 102-03, SX 94.] Spencer testified that without the money

wire transferred by Stacy, he would not have been able to pay

Clements $7,500 on January 7, 2008, and $7,500 on January 8,

2008. [4 RR 44.]

Sandoval’s February 4, 2008 Campaign Finance Report

indicated Sandoval had raised $12,575 in campaign

contributions, had expended $8,997.08, and had a balance of

$4,231.37 in his campaign account. [SX 175, 4 RR 95.] The

bank records for Wooten’s campaign account show that on

February 4, 2008, the account had a balance of $2,366, and on

February 5, 2008, the account had a balance of $1,933. [SX 94,

4 RR 97-99.] Despite the fact Sandoval had received

significantly greater campaign contributions than Wooten,

Spencer told Clements he was not impressed with the amount

Sandoval had raised. [4 RR 94-95, SX 14.] Spencer also

communicated to Wooten and Clements that Sandoval was not

“in a position to match our resources.” [Id.] Clements

interpreted Spencer’s email to mean that there were people

Spencer could go to for money. [6 RR 248.] 
63

The evidence showed numerous communications between

Spencer, David, and Stacy at or about the time of transfers of

funds from Stacy to Spencer. [SX 98C, 7 RR 176-91.] For

example, on January 29, 2008, the night before the second

payment by Stacy to Spencer, Spencer telephoned David’s cell

phone. [7 RR 184-85.] Immediately thereafter, either David or

Stacy telephoned Spencer from David and Stacy’s home phone.

[Id.] Spencer then telephoned Wooten. [Id.] After the telephone

call to Wooten, Spencer telephoned David and Stacy’s

home.[Id.] Stacy made the second payment to Spencer on

January 30, 2008, and Spencer deposited that payment to his

account on February 1, 2008. [Id., SX 94, 98C.] That payment

posted to Spencer’s bank account on February 4, 2008. [Id.] On

February 5, 2008, Spencer sent an email to Wooten indicating

that Sandoval “cannot match our resources,” even though

Wooten had raised only $3,620 for her campaign at that time.

[4 RR 94-95, SX 14, 4 RR 98.] On February 14, 2008, Stacy

made her third payment to Spencer. [7 RR 186.] On that day,

Spencer exchanged text messages by phone with David between

5:12 p.m. and 5:23 p.m. [ 7 RR 187, SX 98C.] Between 5:34 p.m.

and 5:46 p.m., Spencer then communicated in succession with

Wooten, Clements, and David. [7 RR 188.] Stacy’s third

payment to Spencer posted to his account on February 15,

2008. [Id., 7 RR 188-89.] On February 26, 2008, Stacy made

her fourth payment to Spencer. [Id.] At 4:41 a.m. on that day,

Spencer’s assistant confirmed to Spencer by email that radio

advertising time had been purchased for Wooten’s campaign. At

5:24 a.m. and 6:59 a.m., David received text messages from

Spencer. At 9:17 a.m., Stacy sent instructions to Tolleson

Private Bank to wire $25,000 to Spencer. [Id.] At 2:14 p.m., the

wire transfer was posted to Spencer’s account. [Id.] At 2:37 p.m.

and 2:53 p.m., Spencer’s wife, Kipling Spencer, purchased

cashier’s checks for payment of Wooten campaign expenses

from the funds wired to Spencer’s account by Stacy. [Id., 7 RR

191.] 
64

On March 4, 2008, Wooten won the Republican primary.

On March 7, 2008, Stacy made the fifth payment to Spencer. [7

RR 192-93.] On March 7, 2008, between 7:07 a.m. and 8:29

a.m., Spencer text-messaged four times with David. [7 RR 193-

94, SX 98C.] Clements text-messaged Spencer at 8:17 a.m. [Id.]

David and Stacy had three phone conversations between 8:45

a.m. and 9:10 a.m. Between 9:23 a.m. and 10:02 a.m., Spencer

and David exchanged thirteen text messages. [Id.] At 10:47

a.m., Stacy attempted to reach David by telephone. [Id.] At

10:58 a.m., Stacy sent instructions to Tolleson Private Bank to

wire $10,000 to Spencer. [Id.] At 11:40 a.m., David textmessaged Spencer. At 2:51 p.m., the wire transfer of $10,000

posted to Spencer’s bank account. [Id.] Between 3:21 p.m. and

3:52 p.m., Spencer and David exchanged eleven text messages.

[Id.] At 3:59 p.m., Kipling Spencer purchased a cashier’s check

made payable to Clements in the amount of $10,000. [7 RR

194.] Between 6:24 p.m. and 6:31 p.m. on March 13, 2008, the

day of the sixth payment from Stacy to Spencer, Spencer text

messaged David six times. [7 RR 195, SX 98C.] At 9:41 p.m.,

Stacy sent instructions by email to Tolleson Private Bank to

wire Spencer $15,000. [Id.] On March 14, 2008, the sixth

payment from Stacy to Spencer in the amount of $15,000 was

posted to Spencer’s bank account. [Id.] 

Spencer testified he kept [the Carys] removed from his

work on Wooten’s campaign. However, evidence of the

consulting agreement between Spencer and Stacy and a

summary of invoices purportedly related to the agreement were

introduced in evidence. The consulting agreement is dated prior

to Spencer’s meeting with David and Stacy where his

consulting services were first purportedly discussed. [3 RR 230,

237-38.] The consulting agreement, dated October 1, 2007, was

strikingly similar to Spencer’s October 15, 2009 engagement

letter with TDI. [4 RR 115-22.] Both agreements include an

identical phrase relating solely to TDI: “[a]ny additional time

spent on TDI’s behalf is part and parcel to, and inclusive of this
65

engagement.” [4 RR 120-21, 5 RR 94-95.] Spencer admitted

[that he had testified at a previous hearing] that when he left

the October 2, 2007 meeting with David and Stacy, he did not

know the name of David’s employer. [5 RR 95-96.] 

The August 1, 2008 “summary” invoice for purported

consulting services rendered by Spencer did not apply a credit

for the $50,000 wire transfer from Stacy to Spencer on January

4, 2008, and the $25,000 transfer on February 26, 2008 from

Stacy to Spencer did not appear as a credit on the invoice, but

was handwritten on Stacy’s copy of the invoice. [3 RR 241-52,

5 RR 115-16.] The work product purportedly produced by

Spencer pursuant to the consulting agreement was

insubstantial, especially in light of the generous compensation

of $25,000 for each of the four “projects” outlined in the

consulting agreement. [3 RR 248-50, 264-68, 5 RR 12-17, 4 RR

20-22.] Further, the evidence indicated that Stacy purportedly

paid Spencer for “projects” at times when she had not been

invoiced for the work and Spencer had not provided any work

product. Stacy transferred $150,000 to Spencer between

January 4, 2008 and March 14, 2008, although Spencer

testified he was to be paid $25,000 for each of four “projects,”

which would total only $100,000 under the consulting

agreement. [3 RR 243-48, 4 RR 41-43, 65.] 

From the evidence relating to Spencer’s consulting

agreement with Stacy, the jury could have reasonably inferred

the agreement was a subterfuge, fabricated several years after

the purported effective date to provide a false explanation for

the transfers of money from Stacy to Spencer that were used to

finance Wooten’s campaign. . . .

. . .

The jury also heard evidence concerning a June 2009 email

exchange between Spencer and David regarding an opinion of

the United States Supreme Court concerning judge recusal. See

Caperton, 556 U.S. 868[; 4 RR 133.] The email included a
66

statement from an article discussing Caperton, stating that

“judges who receive campaign contributions large enough to

create the appearance of bias should recuse themselves. . . .” I[4

RR 133-36.] n the email, Spencer stated to David that he

thought David would understand why he was interested in the

subject matter of that case, although Spencer denied that he

and David were interested in Caperton because Stacy’s money

was used to finance Wooten’s campaign. [Id.] 

After Wooten became the judge presiding over David’s

SAPCR, David’s motion to modify was set to be heard by

Wooten. [3 RR 76, 97-98.] However, shortly before the hearing

on the SAPCR, Benavides appeared in the case on behalf of

Jennifer. [Id.] This appearance as counsel would result in

Wooten’s recusal because Wooten had indicated an intent to

recuse herself for a period of nine months after January 2009

from cases in which Benavides appeared. [3 RR 74.] The

evidence showed David contacted Spencer regarding Benavides

appearing in the SAPCR, and Spencer, in turn, contacted

Benavides and Basinger and told them to [withdraw] despite

not being able to provide a satisfactory reason. [3 RR 99-101.]

The evidence showed numerous other contacts between Spencer

and David shortly after Benavides’s appearance in the SAPCR.

[7 RR 198-200, SX 98C.] Further, the evidence showed that

shortly after Benavides appeared in the SAPCR, Spencer

contacted the office of Judge Oldner, the administrative judge.

. . . [Id.] Further, the evidence showed that despite Benavides

and Basinger appearing in the suit brought by Stacy against

Jennifer and Suster that had been transferred to Wooten’s

court, Wooten did not voluntarily recuse herself in that lawsuit.

[SX 7A.] 

See n.15, supra. The State also presented testimony from Jay Valentine,

Appellant’s former colleague at TDI, who stated that both Spencer and
67

Appellant “said several times” that “Spencer was hired to fix [Appellant]’s

divorce case.” 8 RR 173. 

When a court’s charge authorizes the jury to convict on more than

one theory, the verdict of guilty will be upheld if the evidence is sufficient

on any one of the theories. Guevara, 152 S.W.3d at 49. And circumstantial

evidence is as probative as direct evidence in establishing the guilt of an

actor, and alone is sufficient to establish guilt. Id. Here, with the

cumulative effects of the facts presented by the State at trial, a rational

juror to have found that Appellant, intentionally or knowingly, either as

the primary actor or a party, offered, conferred, or agreed to confer a

benefit to Wooten in consideration for Wooten filing paperwork to run for

Judge; proceeding and continuing with a campaign to unseat Judge

Sandoval, the incumbent elected judge of the 380th Judicial District Court;

and/or issue favorable rulings in cases in which Appellant or his wife was

a party. See Tex. Penal Code Ann. §§ 7.01(a), 7.02(a)(2) (law of parties); see

also Hayes, 265 S.W.3d at 678, n.4 (a party may be criminally responsible

under law of the parties in several ways); Patterson, 950 S.W.2d at 202 (at

the time of the offense, the parties acted together and contributed to a

common purpose); see also Trenor, 333 S.W.3d at 806 (State must show

conduct constituting an offense, plus an act by the defendant “done with

the intent to promote or assist such conduct”). 
68

Furthermore, the State did not need to prove Appellant was

well-versed in election law, or knew specifically how his wife’s money was

being spent or that Spencer was acting improperly in regards to Wooten’s

campaign finances or reporting. Brief at 26-30. To require such detailed

knowledge would lead to the absurd result of the acquittal of every

financier who deliberately chose to remain ignorant of the process by which

his intended recipient executed the particular “decision, opinion,

recommendation, vote, or other exercise of discretion” desired by the

financier. Here, based upon the evidence described above, a rational trier

of fact could have reasonably found the State proved beyond a reasonable

doubt Appellant’s guilt of six counts of bribery. 

E. Theevidence evidence evidencesufficiently sufficiently sufficientlysupports supports supportsAppellant’s convictions ant’s convictions

for bribery as charged under § 36.02(a)(1), (2). for bribery as charged under § 36.02(a)(1), (2).

Appellant argues that, because the State’s evidence showed that the

monies paid by Appellant’s wife under his direction were functionally

campaign contributions, the evidence is necessarily insufficient to support

his convictions for bribery as he was charged. Brief at 19-23. But based

on the evidence presented at trial, a rational trier of fact could have

reasonably found that Appellant did not specifically direct the money to be

used to fund Wooten’s campaign. Indeed, as this Court has already

determined on a materially identical record, see Cary v. State, 2014 WL
18 In an abundance of caution, the State again notes that this opinion was

unpublished.

69

4261233 at *33-34,18 a rational trier of fact, instead, could have reasonably

found that Appellant intended the money-without regard for specific

execution-be used to obtain, by any means necessary, (1) a person who

would challenge the incumbent judge of the 380th Judicial District Court,

despite the odds stacked against succeeding in such a challenge, and/or (2)

a judge who would rule favorably in Appellant’s custody and visitation

proceedings, and/or rule in favor of his wife Stacy. 

Where a criminal statute expressly includes a provision beginning

with, “It is an exception to the application of,” the State “must negate the

existence of [that] exception in the accusation charging commission of the

offense and prove beyond a reasonable doubt that the defendant or

defendant’s conduct does not fall within the exception.” Tex. Penal Code

Ann. § 2.02(a), (b) (Vernon 2013). Here, the offense of bribery has one

statutory exception: 

(3) of Subdivision (a) that the benefit is a political contribution

as defined by Title 15, Election Code, or an expenditure made

and reported in accordance with Chapter 305, Government

Code.

Tex. Penal Code Ann. § 36.02(d). Also, as relevant to the instant case, 

2) “Contribution” means a direct or indirect transfer of money,

goods, services, or any other thing of value and includes an

agreement made or other obligation incurred, whether legally

enforceable or not, to make a transfer[.] 
70

(5) “Political contribution” means a campaign contribution[.]

(3) “Campaign contribution” means a contribution to a

candidate or political committee that is offered or given with

the intent that it be used in connection with a campaign for

elective office or on a measure. Whether a contribution is

made before, during, or after an election does not affect its

status as a campaign contribution.

Tex. Elec. Code § 251.001 (West 2008). 

In the instant case, both parties agree that two of the three

requirements set out in §§ 2.02(a) and 36.02(d) of the Penal Code were met:

sufficient language in the indictment negated the § 36.02(d) exception, and

the benefits conferred were not lobbyist expenditures. See 1 CR 159-64

(indictment alleging Counts II through VII: “other than a political

contribution as defined by Title 15, Election Code, or an expenditure made

and reported in accordance with Chapter 305 of the Government Code”);

see also Appellant’s Brief at 19-23 (Appellant’s complaint solely related to

“political contribution”). 

But under Appellant’s theory regarding the remaining portion of the

statutory exception, § 36.02(d) would indicate that a political contribution

is not an illegal benefit to offer, confer, or agree to confer upon a public

servant, party official, voter, or an authority figure in a judicial or

administrative proceeding, in exchange for that individual’s action in

his/her official capacity. See § 36.02(a)(1), (2), and (3). Rather, a political

contribution offered, conferred, or in agreement to be conferred to such
71

individuals described above would comprise an illegal action only if there

exists: 

• an express agreement to take or withhold a specific exercise

of official discretion if such exercise of official discretion

would not have been taken or withheld but for the political

contribution, and 

• direct evidence of the express agreement. 

§ 36.02(a)(4). Simply stated, as long as no such evidence of express

agreement exists, no crime has been committed. 

But such an absurd result could not have been intended by the

legislature. The commentary accompanying the 1975 amendment which

established the foundation for § 36.02 notes:

“This section was completely rewritten based upon Model P.C.

Sec. 240.1. The term ‘with intent to influence’ was completely

omitted, and the term ‘as consideration for’ was used to

emphasize the bargaining aspect of bribery. This concept

includes both express and implied or tacit agreements. Any

benefit will suffice to convict for bribery, if it is consideration

for the recipient’s exercise of official discretion in a judicial or

administrative proceeding . . . (Emphasis supplied.). 

McCallum, 686 S.W.3d at 134 (quoting BRANCH’S ANN. P.C., 3RD ED.,

VOL. III, § 36.02). As further noted by the McCallum Court, the

amendment served to prevent the criminalization of “situations where gifts

are given in mere hope of influence, without any agreement by the donee.”

Id. at 135 (quoting A.L.I. MODEL PENAL CODE, REPRINT-PROPOSED

OFFICIAL DRAFT, § 240.1 at 197 (May 4, 1962)). As discussed above, the
19 One of the issues presented in McElroy which is absent in this case is

whether a statutory exception was provided within former Article 5742e of the

Civil Statutes; since the Court of Criminal Appeals upheld this Court’s finding

of a statutory exception and analyzed the sufficiency of the evidence under such

finding, the same underlying principles in McElroy should apply in the instant

case. Id. at 492-93. 

72

evidence shows that the actions of Appellant and his wife were not

motivated by a “mere hope of influence.” 

Regardless, Appellant ignores the evidence and reasonable inferences

from the evidence, from which a rational trier of fact could have found that

the State negated the § 36.02(d) exception beyond a reasonable doubt. 

While State-Appellee could not locate any controlling authority on

negating the exception to bribery as alleged in this case, guidance can be

found in McElroy v. State, 720 S.W.2d 490 (Tex. Crim. App. 1986), in

which the Court of Criminal Appeals affirmed this Court’s decision

regarding sufficiency of the evidence to negate an exception to a different

offense19 –“a trust type statute enacted to regulate a specific type of

conduct on the part of contractors and subcontractors[.]” Id. at 491

(referring to former Tex. Ann. Civ. Stat. Art. 5472e). In affirming this

Court’s holding that the State failed to properly negate the exception to the

charged offense, the McElroy Court provided the following explanation: 

 The reason that we find the evidence is insufficient to

establish that the State did not prove that [McElroy] did not

[meet the statutory exception of] us[ing] the allegedly

misapplied trust funds for reasonable overhead expenses is

because it did not trace the application of three checks payable
73

to the telephone company, an apartment complex, and a liquor

store, which could have easily shown that they either did or did

not have anything to do with reasonable overhead expenses. In

sum, the State did not show that the proceeds from the checks

were not used for what the law permits the funds to be used,

reasonable overhead expenses. The evidence is thus insufficient

to establish that [McElroy] did not use the trust funds that he

allegedly misapplied for reasonable overhead expenses, which

the law permitted him to use the trust funds for.

McElroy, 720 S.W.2d at 495 (emphasis added). 

Appellant points out that the definition of “contributions” specifically

includes direct or indirect transfers, and argues the State proved such

transfers occurred between Appellant and Wooten. Brief at 20. But both

direct and indirect transfers inherently encompass a traceable source of

the transfer of value. In this case, the evidence demonstrates Appellant

deliberately engaged several deceptive tactics to prevent the funds from

being traced to him: 

1. All payments were made from Appellant’s wife’s accounts.

2. All payments were made to and accepted by Spencer.

3. Spencer testified at length that the payments made by

Appellant’s wife were for services he rendered pursuant to

a contract, back-dated to October 1, 2007, and engaging

him until December 2009. 

4. Spencer testified that he did his best to keep his Stacy

Cary business separate from Wooten’s campaign business.
74

5. Spencer testified that Wooten did not know the Carys, and

sub-contracted-campaign consultant Clements stated he

had not heard mention of the Carys. 

6. No acknowledgment of the Carys as donors or lenders was

ever made in Wooten’s campaign finance or personal

finance reports. 

7. The payments issued by the Carys were in gross excess of

$2,500.00, the legal political contribution limit for an

individual towards a judicial campaign within Collin

County. 6 RR 37.

Applying McElroy, the State’s precise tracing of the funds demonstrated

that Appellant clearly removed himself from being a publicly identifiable

source of funding-either direct or indirect-for Wooten’s campaign. 

Furthermore, Appellant’s assertion that Spencer worked for Wooten

under a “turnkey” arrangement-when read in conjunction with Appellant’s

argument that the payments to Wooten were political contributions-would

allow an individual to make unlimited “campaign contributions” to a

“consultant” employed under the same “turnkey” arrangement described

by Spencer. Such an outcome defeats the purpose of the

statutorily-imposed limits placed upon individual political contributions.

Lastly, as the Court in the Stacy Cary appeal held, the jury could

have reasonably inferred that Appellant had no specific intent for the

payments issued by his wife were to be used exclusively “in connection

with a campaign for elective office or on a measure,” as the definition of
75

“campaign contribution” requires. Jay Valentine, Appellant’s former

colleague at TDI, testified that he had heard “several times” that “Spencer

was hired to fix [Appellant]’s divorce case,” and that Spencer “said he

owned [Wooten] several times, and that she was going to help in their

endeavor for making some changes,” namely reversing “some adverse

rulings” in Appellant’s divorce and child-custody proceedings. 8 RR 173,

158-59. Additionally, Wooten’s campaign reports reflect she reported

$102,000.00 in expenditures, but Spencer paid $118,000.00 on campaign

expenditures. 7 RR 156. The jury thus could have inferred that Appellant’s

description of Spencer as a “fixer,” coupled with the discrepancy of between

$32,000.00 and $48,000.00 between Spencer’s invoices and Wooten’s

reports, demonstrate that Appellant had no specific intent that every

payment made by his wife be used specifically in connection with the

campaign. 

When viewed in the light most favorable to the verdict, the evidence

and the reasonable inferences from the evidence of the great lengths taken

by Appellant to make any payments untraceable to him, coupled with the

lack of transparency within Wooten’s campaign, could allow a rational trier

of fact to have found beyond a reasonable doubt that the State negated the

exception that such payments were political contributions. Jackson, 443

U.S. at 319; Gear, 340 S.W.3d at 746. Thus, Appellant’s complaint of

insufficient evidence alleged on this ground should be denied.
20 See Gahl v. State, 721 S.W.2d 888, 893-96 (Tex. App.–Dallas 1986) (“the

phrase ‘decision, recommendation and exercise of discretion” are simply different

manners and means of committing the offense of bribery”), citing Bates v. State,

587 S.W.2d 121, 129 (Tex. Crim. App. 1979) (“intentionally and knowingly

solicit, accept, and agree to accept . . . a pecuniary benefit” is an allegation of

several means of committing the offense of bribery). 

76

F. The evidence evidence evidence is sufficient to establish that a “public ficient to establish that a “public

servant” was bribed by Appellant in exchange for th servant” was bribed by Appellant in exchange for the

publicservant’s servant’s servant’sexercise exercise exerciseofdiscretion, discretion, discretion,andthussufficient sufficient

to sustain Appellant’s convictions for bribery.

Appellant argues that Wooten, the intended recipient of Appellant’s

bribes, was not a “public servant” when she made the decision to run for

judicial office. Brief at 23-24. Appellant also argues that there is no

evidence to support a finding that Wooten was considering a decision to

withdraw from the judicial race. Brief at 25-26. But Appellant’s

misconstruction of the record fails to demonstrate Appellant’s conviction

is not supported by the evidence presented at trial. 

As relevant to Appellant’s point of error, in Counts Two through

Seven of the Superceding Indictment charging Appellant with bribery;

Wooten is alleged to have received or was offered benefits from Appellant

as consideration for her “decision, opinion, recommendation, vote, and

other exercise of discretion as a public servant, . . . to wit: filing paperwork

to run for Judge, [and] proceeding and continuing with a campaign to

unseat the incumbent elected Judge of the 380th Judicial District

Court[.]”20 1 CR 159-64. 
77

Included in the statutory definition of “public servant” is a “candidate

for nomination or election to public office,” and the provision that a person

may be a public servant “even if [she] has not yet qualified for office or

assumed [her] duties.” Tex. Penal Code § 1.07(4)(E). “Candidate” is further

defined within the Election Code as “a person who knowingly and willingly

takes affirmative action for the purpose of gaining nomination or election

to public office,” including filing an application for a place on a ballot or

filing a campaign treasurer appointment. § 251.001(1)(B), (A). Thus,

Wooten’s action in filing paperwork to run for office squarely falls within

the statutory definition of “candidate” and “affirmative action” taken by

candidates, and is thus an “exercise of discretion as a public servant.” 

Additionally, Appellant mischaracterizes Wooten’s actions as a

“decision” made as a public servant. A variation of Appellant’s argument

has already been rejected by the Ninth Court, where the appellant in that

case alleged, “the state has utterly blurred the distinction between making

decisions as a public servant and deciding to be a public servant.” Kaisner

v. State, 772 S.W.2d 528, 529 (Tex. App.–Beaumont 1989, pet. ref’d.)

(quoting appellant Kaisner’s brief) (emphasis in original). In rejecting this

claim, the Ninth Court of Appeals found that Kaisner’s opponent’s

“decision to withdraw from the runoff would have been the exercise of

discretion as a public servant.” Id. The Court of Criminal Appeals also

implicitly rejected this argument when it refused Kaisner’s petition for
78

discretionary review. See Kaisner v. State, 780 S.W.2d 226, 227-28 (Tex.

Crim. App. 1989) (Miller, J., dissenting, supporting Kaisner’s argument).

Likewise-and because Wooten’s actions fall within the statutory definition

of affirmative action taken by a candidate-this Court should reject

Appellant’s argument that Wooten, as a private citizen, “decided” to run

for the 380th Judicial District Court bench. 

Appellant also complains the State failed to prove that Wooten ever

considered withdrawing from the race. Brief at 25-26. But Appellant cites

no authority in support of his argument that the State must prove the

converse of its allegations that Appellant was charged with bribing for

Wooten to “proceed[ ]and continu[e ]” with her campaign. Additionally,

where the Kaisner courts considered the opponent’s decision to withdraw

as an exercise of discretion of a public servant, the implicit converse must

also be true-that, as in this case, a candidate’s decision to stay or “proceed[

]and continu[e]” in the race is an exercise of discretion of a public servant.

Because Appellant’s arguments present no merit, this Court should

overrule Appellant’s challenge to the sufficiency of the evidence on these

grounds. 

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

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

Under section 34.02(a)(4) of the Penal Code (Vernon 2008), a person

commits money laundering if he finances or invests or intends to finance
79

or invest funds that the person believes are intended to further the

commission of criminal activity. “Criminal activity” is defined within the

Penal Code as “any offense, including any preparatory offense, that is

classified as a felony under the laws of this state.” Id. at § 34.01(1)(A).

Knowledge of the specific nature of the criminal activity giving rise to the

proceeds is not required to establish a culpable mental state under this

section. Id. at § 34.02(1). As related to Appellant, “criminal activity” is the

offense of bribery, defined in Part I(B), supra. 1 CR 164 (Superceding

Indictment: Count Eight). The jury was instructed that Appellant may be

found criminally responsible for money laundering, either as a principal

actor or under the law of parties. 2 CR 649; see Part I(C). 

B. The evidence evidence evidence was sufficient sufficient sufficient to support support support Appellant’s Appellant’s

conviction for money laundering.

Appellant argues that the evidence was insufficient to sustain his

conviction for money laundering because there was insufficient evidence

of the only predicate offense alleged, i.e., bribery. Brief at 36-37; see 1 CR

164. Since this is Appellant’s only point of error with respect to his

conviction for money laundering, the State incorporates all arguments

urged in Part I, and asserts the evidence thus demonstrates that a rational

trier of fact could have found Appellant guilty of money laundering beyond

a reasonable doubt. 
80

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

Appellant claims that there is insufficient evidence to sustain his

conviction for engaging in organized criminal activity (“EOCA”). Brief at

31-36. 

A. Standard A. Standard Standard of review for a challenge challenge challenge to the sufficiency of the ficiency of the

evidence. evidence

Again, on review, all evidence and any reasonable inferences from the

evidence is viewed in the light most favorable to the verdict and it is

determined whether any rational trier of fact could have found the

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at

319; Gear, 340 S.W.3d at 746. 

The jury is the exclusive judge of witness credibility and the weight

of the evidence. Isassi, 330 S.W.3d at 638. The jury also resolves or

reconciles conflicts in the evidence in favor of the verdict. Id.; Jackson, 443

U.S. at 326. “An appellate court determines whether the necessary

inferences are reasonable based upon the combined and cumulative force

of all the evidence when viewed in the light most favorable to the verdict.”

Ervin, 331 S.W.3d at 55. The appellate court must view both direct and

circumstantial evidence equally when reviewing the record based on a

sufficiency of the evidence claim. Jackson, 443 U.S. at 326; Hooper, 214

S.W.3d at 16-17. The reviewing court does not resolve any conflict of fact,
81

rough the evidence, or evaluate the credibility of the witnesses. Garza, 841

S.W.2d at 21. 

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

Section 71.02(a) of the Penal Code (Vernon 2008) provides that a

person commits the offense of EOCA if, with the intent to establish,

maintain, or participate in a combination, he commits or conspires to

commit one or more of several enumerated offenses, including bribery,

money laundering, and tampering with a governmental record.

Additionally, § 71.01(b) defines “conspires to commit” as when “a person

agrees with one or more persons that they or one or more of them engage

in conduct that would constitute the offense and that person and one or

more of them perform an overt act in pursuance of the agreement. An

agreement constituting conspiring to commit may be inferred from the acts

of the parties.” 

“Combination” is defined as “three or more persons who collaborate

in carrying on criminal activities.” Tex. Penal Code § 71.01(a). The

participants need not know each other’s identity, and the combination’s

membership may change from time to time. Id. In proving the existence

of a combination, the State need not demonstrate the participation of all

alleged members of the combination; the State need only prove the

participation of at least three of the named members of the combination,

including the defendant. See Crum v. State, 946 S.W.2d 349, 356 (Tex.
82

App.-Houston [14th Dist.] 1997, pet. ref’d). Generally, this requires more

than the intent to commit the predicate offense; the State must prove the

defendant’s intent to establish, maintain, or participate in a combination.

Hart v. State, 89 S.W.3d 61, 63 (Tex. Crim. App. 2002). Further, in order

to prove the defendant’s intent to participate in a combination, the State

must prove not only that the defendant knew of the existence of the

combination, but also that the defendant knew of the criminal activity of

the group. See McGee v. State, 909 S.W.2d 516, 518 (Tex. App.-Tyler 1995,

pet. ref’d). 

1. Applicable 1. Applicable Applicablelawtounderlying underlying underlyingcriminal criminal criminalactivities activities

of bribery and money laundering. of bribery and money laundering

Two of the predicate offenses alleged against Appellant in the charge

of EOCA within the Superceding Indictment are bribery and money

laundering. 1 CR 157-58. Penal Code sections 36.02(a)(1), (2) and

34.02(a)(4) define bribery and money laundering, respectively, as discussed

above in Parts I(B) and II(A), supra. 

2. Applicable 2. Applicable Applicablelawtounderlying underlying underlyingcriminal criminal criminalactivities activities

of bribery and money laundering. of bribery and money laundering

A person commits the offense of tampering with a governmental

record if she makes, presents, or uses a governmental record with

knowledge of its falsity. Tex. Penal Code § 37.10(a)(5) (Vernon 2008). A

governmental record is defined as anything “belonging to, received by, or

kept by government for information,” or anything required by law to be
83

kept by others for information of government. Id. at § 37.01(2)(A), (B).

Additionally, a “partisan or independent candidate for an office as an

elected officer” is required to file a financial statement that contains an

account of the financial activity of the candidate, including: 

(5) identification of each guarantor of a loan and identification

of each person or financial institution to whom a personal

note or notes or lease agreement for a total financial

liability in excess of $1,000 existed at any time during the

year and the category of the amount of the liability; . . . 

(7) identification of a person or other organization from which

the individual or the individual’s spouse or dependent

children received a gift of anything of value in excess of

$250 and a description of each gift, except: 

(A) a gift received from an individual related to the

individual at any time within the second degree by

consanguinity or affinity, as determined under

Subchapter B, Chapter 573; [and] 

(B) a political contribution that was reported as

required by Chapter 254, Election Code.

Tex. Gov’t Code §§ 572.021, 572.023(a), (b)(5), (b)(7) (Vernon 2008). 

C. Suffi C. Sufficient evidence supports Appellant’s conviction cient evidence supports Appellant’s conviction for 

EOCA in committing committing committing or conspiring conspiring conspiring to commit bribery commit bribery

and/or money laundering. and/or money laundering.

Appellant argues that there is insufficient evidence to sustain his

conviction for EOCA because there is insufficient evidence that

demonstrates he committed or conspired to commit the underlying
84

criminal activities of bribery and/or money laundering. Brief at 31-32.

Appellant incorporates his arguments as stated in his Points of Errors One

and Three in support of his insufficiency claims. Id. Likewise, the State

has demonstrated in Parts I and II, supra, that sufficient evidence

supports Appellant’s commission, either as a primary actor or as a party,

of bribery and money laundering. Because a general verdict was returned,

the verdict will be upheld if the evidence is sufficient to support a finding

of guilt under any allegation. See Fuller v. State, 827 S.W.2d 919, 931

(Tex. Crim. App. 1992); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.

App. 1991); Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1982).

Accordingly, sufficient evidence supports the jury’s finding of guilt in the

charge of EOCA against Appellant for the criminal activities of bribery or

money laundering. 

D. Sufficient evidence supports Appellant’s conviction fficient evidence supports Appellant’s conviction f or

EOCA in the commission or conspiracy to commit the commission or conspiracy to commit

tampering with a governmental record. tampering with a governmental record

Appellant argues that there is insufficient evidence to support his

conviction for EOCA for committing or conspiring to commit tampering

with a government record, where the Superceding Indictment alleged

Wooten knowingly prepared and affirmed her Personal Financial

Statement with false information, and Appellant provided funding in the

furtherance of that activity. Brief at 33-36. Namely, Appellant alleges

that he had no knowledge or involvement with Wooten’s election filings,
85

including her Personal Financial Statement (Tex. Gov’t Code § 572.023),

or the statutory requirements of election filings. Brief at 26-27. 

 Again, because a general verdict was returned, the verdict will be

upheld if the evidence is sufficient to support a finding of guilt under any

allegation of EOCA, whether-as applied here-that be pursuit of bribery,

money laundering, or tampering with a governmental record. See Fuller,

827 S.W.2d at 931; Kitchens, 823 S.W.2d at 258; Aguirre, 732 S.W.2d at

326. Regardless, sufficient evidence supports the jury’s finding of

Appellant’s guilt of EOCA, predicated upon Wooten’s tampering with a

government record. 

Although no direct evidence of Appellant’s knowledge of Wooten’s

campaign records or record filing requirements was presented,

circumstantial evidence may be used to prove the state of mind required

to support Appellant’s conviction. See Munoz v. State, 29 S.W.3d 205, 209

(Tex. App.–Amarillo 2000, no pet.). Such circumstantial evidence may also

be used to prove the existence of an agreement to work together in

continuing criminal activities. See id.; Hart, 89 S.W.3d at 64. 

Looking at the evidence described above in Part I(F), supra, a

rational trier of fact could have found the cumulative effect of that

evidence was proof beyond a reasonable doubt that Appellant, with intent

to establish, maintain, or participate in a combination, conspired for

Wooten to commit tampering with a governmental record. Namely, a
86

rational juror could reasonably infer that-where Appellant’s wife provided

funds that were ultimately used to finance Wooten’s campaign; and the

phone records reflect communications occurred primarily between

Appellant and Spencer, Appellant and his wife, or Spencer and Wooten;

and Wooten’s campaign reports do not reflect monies received from or

loaned by the Carys-Appellant was committing or conspiring to commit

tampering with a governmental record, in combination with his wife and/or

Spencer, and/or Wooten. 

Again, members of the combination need not know each other’s

identity. Tex. Penal Code § 71.01(a). Thus, contrary to Appellant’s

assertion, Wooten did not need to know that Appellant was directing his

wife to provide $150,000.00 to Spencer, who provided invoices to Wooten

and jointly approved campaign expenses with Wooten. However, as a

candidate, Wooten was responsible for knowing where her campaign’s

funding came from, particularly given the restrictions on the allowable

amounts of gifts and loans from individuals to a judicial campaign. See

Tex. Gov’t Code § 572.023. A rational trier of fact could have inferred from

the evidence presented at trial that Wooten deliberately chose to remain

ignorant of where her novice campaign manager obtained a six-figure sum

to pay for her campaign expenses. 

In order to prove the defendant’s intent to participate in a

combination, the State must prove not only that the defendant knew of the
87

existence of the combination, but also that the defendant knew of the

criminal activity of the group. See McGee, 909 S.W.2d at 518. Although

Appellant argues he did not know the reporting requirements for judicial

candidates, his ignorance of the law is no excuse. See Tovar v. State, 978

S.W.2d 584, 588, 589 (Tex. Crim. App. 1998) (Baird, J., concurring), (Price.

J., concurring) (citation omitted). For the same reason, Appellant cannot

successfully argue that he was unaware of the statutory limits placed on

individual political contributions or loans. Accordingly, the jury could have

inferred that-given Appellant’s blatant disregard for complying with any

such restrictions-Appellant must have intended for Wooten to omit him,

his wife, and/or Spencer from her Personal Finance Statement as the bulk

of her campaign resources. See Crum, 946 S.W.2d at 356 (the State need

not demonstrate the participation of all alleged members of the

combination; the State need only prove the participation of at least three

of the named members of the combination, including the defendant); see

also Hart, 89 S.W.3d at 63 (the State must prove the defendant’s intent to

establish, maintain, or participate in a combination). 

Accordingly, when viewed in the light most favorable to the verdict,

sufficient evidence supports Appellant’s conviction for EOCA. 
88

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

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

Both federal and State constitutions guarantee a defendant the right

to counsel. See U.S. Const. Amend. VI; Tex. Const. Art I, sec. 10; Tex.

Code Crim. Proc. Ann. art. 1.05 (West 2011). The right to counsel means

the right to effective counsel. See Strickland v. Washington, 466 U.S. 668

(1984); Ex parte Gonzalez, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).

When a defendant challenges his conviction or sentence based upon the

ineffective assistance of trial counsel, his challenge is subject to the

two-prong Strickland test: (1) whether counsel’s performance fell below an

objective standard of reasonableness; and, if so, (2) whether there is a

reasonable probability that, but for counsel’s error, the outcome would

have been different. Strickland, 466 U.S. at 669; Thomas v. State, 9

S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d

770, 770 (Tex. Crim. App. 1999). Effective assistance of counsel, however,

does not mean a right to errorless counsel, but rather to objectively

reasonable representation. See Strickland, 466 U.S. at 686; Robertson v.

State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In determining

whether counsel was ineffective, we consider the totality of the

circumstances of the particular case. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999). It is the defendant’s burden to prove

ineffective assistance of counsel by a preponderance of the evidence. Id. 
89

In reviewing the first prong of an ineffectiveness of counsel challenge

to a conviction, there is a strong presumption an attorney’s performance

is encapsulated within a wide range of reasonable professional assistance.

Hernandez, 988 S.W.2d at 772. Appellant must: (1) rebut this presumption

that trial counsel is competent by identifying the acts and/or omissions of

counsel that are alleged as ineffective assistance; and (2) affirmatively

prove that such acts and/or omissions fell below the professional norm of

reasonableness by a preponderance of the evidence. McFarland v. State,

928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds

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

must be made on the record, affirmatively demonstrating the alleged

ineffectiveness. See McFarland, 928 S.W.2d at 500. An ineffective

assistance claim with a record silent as to trial counsel’s motivations will

generally fail, as the presumption that the attorney’s conduct was

reasonable has not been overcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex.

Crim. App. 2001) (denying ineffective assistance claim where record is

silent as to why counsel did not request guilty plea withdrawn). When,

however, a motion for new trial is conducted, at which the testimony of the

trial counsel is recorded, such evidence may serve as the basis for

determining ineffectiveness of counsel. Gibbs v. State, 7 S.W.3d 175, 179

(Tex. App.–Houston [1st Dist.] 1999, pet. ref’d) (noting that, in the absence
21 Although Mendoza is an unpublished opinion–and, hence, does not bind

the panel Court under principles of stare decisis–the State merely cites this case

as persuasive authority. 

90

of a proper evidentiary record developed at a hearing on a motion for new

trial, it is extremely difficult to show trial counsel was ineffective).

To determine Strickland prejudice during sentencing, Appellant must

show that, as a result of the purported constitutionally deficient

performance of trial counsel, the punishment assessed would have been

less severe. Hernandez, 988 S.W.2d at 772-74 (extending the test for

Strickland prejudice to non-capital sentencing); but see Mendoza v. State,

2008 WL 2403769, *4, 11 (Tex. App.–Houston [14 Dist.[, Jun 12, 2008)

(Nos. 14-06-01015-CR, 14-06-01016-CR) (citing Miller v. Dretke, 420 F.3d

356, 365 (5th Cir. 2005) (Courts determine if the sentence given was

significantly more harsh than the one that might have been given in the

absence of counsel’s deficient performance.).21 Here as elsewhere,

reasonable probability means “a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 669; Thomas v. State,

9 S.W.3d at 812. 

Finally, it is not necessary to conduct the Strickland analysis in any

particular order; if an appellant cannot demonstrate sufficient prejudice,

a court may dispose of the claim on that ground. Strickland, 466 U.S. 697;

Hagens v. State, 979 S.W.2d 788, 793–94 (Tex. App.–Houston [14th Dist.]
22 Article 37.07 of the Texas Code of Criminal Procedure provides to every

defendant a statutory right to elect the judge or the jury to assess punishment.

Article 37.07 provides as follows: 

[I]f a finding of guilty is returned, it shall then be the

responsibility of the judge to assess the punishment

applicable to the offense; provided, however, that (1) in any

criminal action where the jury may recommend probation

and the defendant filed his sworn motion for probation

before the trial began, and (2) in other cases where the

defendant so elects in writing before the commencement of

the voir dire examination of the jury panel, the

punishment shall be assessed by the same jury,.... If a

finding of guilty is returned, the defendant may, with the

91

1998, pet. ref’d); Gamboa v. State, 822 S.W.2d 328, 330 (Tex.

App.-Beaumont 1992, pet. ref’d). 

B. Appellant B. Appellant AppellantwasnotPrejudice Prejudice PrejudicebyCounsel’s Counsel’s Counsel’sPerformance Performance Performanceat

the Punishment Phase of Trial. the Punishment Phase of Trial.

Appellant claims that trial counsel, Lawson Pedigo, was ineffective

because he mistakenly failed to make a timely election of punishment by

the court. Trial counsel tried to make that election after the State rested,

but by then, it was too late without the State’s consent, and the State did

not consent. Appellant asserts that this error by trial counsel resulted in

a substantially longer sentence than his co-conspirators, Suzanne Wooten

and Stacy Cary. Brief, at 37. Appellant’s claim, however, is without merit.

On July 22, 2011, and before commencement of the voir dire

examination of the jury panel, Appellant’s previous attorney, Keith Gore,

filed an Election for Jury to Assess Punishment in Event of Conviction

pursuant to Tex. Code Crim. Pro. Art. 37.07,22 along with a motion for
consent of the attorney for the state, change his election of

one who assesses the punishment. 

Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (West 2010). 

92

community supervision. 1 CR 15, 119, 257; see MNT RR 10-11. Lawson

Pedigo was retained by Appellant in August or September 2012 to

represent him at trial. 1 CR 199; MNT RR 10. On April 24, 2013, before

the jury returned a guilty verdict, Mr. Pedigo filed an Amended Election

for Judge to Assess Punishment in Event of Conviction, along with a

follow-up brief in support of his amendment per the trial court’s request.

9 RR 119-20; MNT RR 15-17. 

After the jury returned a guilty verdict and prior to the hearing on

punishment, the State objected to Appellant’s amended motion for the

judge to assess punishment as untimely and submitted that the jury must

set the punishment. 10 RR 5-10. The trial court denied Appellant’s

amended motion citing Tex. Code Crim. Proc. Ann. art. 37.07, section 2(b),

and the court’s understanding that since the prosecutor refused to consent

to the amendment which is necessary for the change, Appellant’s original

election filed before commencement of the voir dire examination of the jury

panel must stand. 10 RR 10-11. 

At the hearing on Appellant’s motion for new trial, Appellant argued

that Mr. Pedigo was ineffective for failing to realize that he had to file an

amended punishment election before voir dire in order to make sure that

his client could be sentenced by the judge which resulted in the jury
93

assessing a substantially longer sentence than his co-conspirators,

Suzanne Wooten and Stacy Cary. 2 CR 757; MNT RR 5-21. The

overwhelming amount of testimony at the motion for new trial dealt with

Mr. Pedigo’s argument that he failed to “appreciate” or “realize” the

significance of the finality of the election. He thought he would have the

ability to go before the judge for sentencing as did the two co-defendants,

Wooten and Stacy. MNT RR 13-15. Mr. Pedigo acknowledged he made a

mistake with the election and should have discussed it with the defendant,

and amended it prior to voir dire. Id. at 20-21. Pedigo believed that if he

had gone before the trial judge for sentencing, Appellant would have

received probation, as with his co-conspirators, rather than the fourteen

year sentence. Id. at 20-21. In support of his claim, Appellant cites to

Suzanne Wooten and Stacy Cary’s sentences. Brief at 38. On November 28,

2011, Wooten received an agreed sentence of probation from the State. 2

CR 796-807. On October 11, 2012, Appellant’s wife Stacy, received a

sentence of probation plus thirty days in jail from a trial judge. 2 CR

1004-1005. 

In spite of his obvious propensity for falling on his sword at every

available opportunity, Mr. Pedigo cannot be held ineffective for failing to

timely file an amended election. Appellant argues that the sentences

received by Wooten and Stacy Cary for their participation in the offenses

were relevant to Appellant’s sentencing. See Brief at 39-40. Appellant,
94

however, is mistaken. In Joubert v. State, the Texas Court of Criminal

Appeals considered whether the trial court erred by excluding, at the

punishment phase, evidence that the appellant’s co-defendant received a

thirty-year sentence as part of a plea bargain. 235 S.W.3d 729, 734 (Tex.

Crim. App. 2007). The Court concluded that “[a] co-defendant’s conviction

and punishment have no bearing on a defendant’s own personal moral

culpability.” Id. (citing Morris v. State, 940 S.W.2d 610, 613 (Tex. Crim.

App. 1996) (“[E]vidence of a co-defendant’s conviction and punishment is

not included among the mitigating circumstances which a defendant has

a right to present.”)); see Evans v. State, 656 S.W.2d 65, 67 (Tex. Crim.

App. 1983) (“We do not see how the conviction and punishment of a

co-defendant could mitigate appellant’s culpability in the crime. Each

defendant should be judged by his own conduct and participation and by

his own circumstances.”). The Court stated that “such punishments

‘relate[ ] neither to appellant’s character, nor to his record, nor to the

circumstances of the offense.”’ Joubert, 235 S.W.3d at 735 (quoting Morris,

940 S.W.2d at 613); see Walker v. State, 530 S.W.2d 572, 573 (Tex. Crim.

App. 1975) (holding that “upon the trial of one charged with crime it is not

permissible to show that another jointly or separately indicted for the same

offense has been convicted or acquitted.”); see also Eichelberger v. State,

232 S.W.3d 225, 227 (Tex. App.-Fort Worth 2007, pet. ref’d) (“[O]nly a

defendant’s own circumstances are relevant in determining an appropriate
95

punishment for that defendant.”); Torres v. State, 92 S.W.3d 911, 918 (Tex.

App.–Houston [14th Dist.] 2002, pet. ref’d) (“The disposition of a codefendant’s case is generally not admissible in the trial of another codefendant.”); Montoya v. State, 65 S.W.3d 111, 114–15 (Tex. App.–Amarillo

2000, no pet.) (“Generally, the disposition of a case against a co-defendant

is inadmissible at trial against another co-defendant.”); Beasley v. State,

838 S.W.2d 695, 703 (Tex. App.–Dallas 1992, pet. ref’d) (“Ordinarily, the

disposition of a case against co-defendants never becomes admissible in the

trial of another co-defendant.”). In light of this authority, even if Appellant

had been sentenced by the judge, evidence of Wooten’s and Stacy’s

sentences would have been inadmissible. Id. Thus, Appellant cannot

prove prejudice. Strickland, 466 U.S. at 689. Because the record contains

no other evidence of how Appellant would have benefitted from the timely

election, Appellant fails to meet his burden to show that trial counsel was

ineffective. See Ex parte Martinez, 330 S.W.3d at 901. 

Moreover, in the non-capital context, the sentencing process consists

of weighing mitigating and aggravating factors, and making adjustments

in the severity of the sentence consistent with this calculus. Milburn v.

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

Vela v. Estelle, 708 F.2d 954, 965 (5th Cir. 1983)). But unlike the appellant

in Milburn, Appellant is not presently claiming that trial counsel failed to

present evidence of mitigating factors for the jury to balance against the
96

aggravating factors presented by the State. Rather, Appellant’s only

contention in support of prejudice assertion is that the trial court would

have sentenced Appellant to less than fourteen years, on precisely the

same evidence. 

The preceding point bears repeating, Appellant is attempting to

establish Strickand prejudice resulting from trial counsel’s purported

deficiency, for a non-capital sentencing regime that possess nondeterminate, unconstrained sentencing discretion. But Appellant’s only

contention in support of his claim, is his rank speculation that the trial

judge may have sentenced Appellant to less than fourteen years, in a nondeterminate sentencing range of five years to life. 

Turning to the relevant aggravating factors considered by the jury,

the aggravating evidence showed that Eric Roberson’s testimony clearly

supported the fourteen-year sentence. 10 RR 15-30. Despite Appellant’s

total silence as to any aggravating factors admitted at punishment, see

Brief at 37-40, a particularly aggravating factor was Mr. Roberson’s

testimony where upon meeting with David Cary in January 2008,

Appellant said to Roberson that, “he could make certain that [Cary’s]

organization provided no less that fifty [50] thousand dollars to

[Roberson’s] campaign if in exchange [Roberson] would agree, once

[Roberson] was a member of Congress, that [Roberson] would sponsor the
23 During their meeting, Appellant told Roberson he believed that the way

family law in Texas was written, “it was impossible for men to win in a divorce

type hearing.” 10 RR 24. Appellant wanted Roberson to sign “a bill that would

redefine certain family law terms so that men and women would be equalized in

divorce cases and so we wouldn’t have this societal ability for women to have an

incentive to file for divorce.” Id. at 24-25.

97

bill that they wanted.” 10 RR 24 (emphasis added).23 Roberson testified

that, in running for Congress, he knew “. . . you cannot accept a campaign

contribution in exchange for a promise to do a specific official act or an

exchange to refrain from doing a specific official act. Id. at 25 (emphasis

added). This evidence alone–that Appellant attempted to bribe a candidate

for Congress–which was unique to Appellant’s trial, means that he can

never establish a sufficient similarity between his trial and the others to

prove prejudice. 

Lastly, the State observes that Cary’s fourteen year sentence for the

Engaging in Organized Criminal Activity fell far short of the maximum of

life, indicating that the jury afforded him a considerable measure of

clemency. See 2 CR 659; 2 CR 666-75. Applying Hernandez here, Cary

cannot meet his burden of proof and is unable to show that his sentence

would have been significantly less harsh than the one that might have

been given in the absence of counsel’s alleged deficient performance. 
98

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

A. Appellant A. Appellant AppellantWaivedChallenges Challenges ChallengestotheConstitutionality Constitutionality Constitutionalityof

Texas Penal Code Section 36.02. 

Appellant claims the Texas bribery statute Section 36.02(a)(1),(4) is

unconstitutional as applied for impermissibly burdening his first

amendment right to exercise political speech, and is unconstitutional on its

face for vagueness and overbreadth. Brief at 41-47. Appellant, however,

failed to preserve this issue for appeal. 

A. Forfeiture of Complaint A. Forfeiture of Complaint

To preserve error for appellate review, the record must show that a

defendant raised his complaint by a timely and specific objection. See Tex

. R. App. Proc. 33.1(a)(1)(A); Haley v. State, 1 73 S.W.3d 510, 516 (Tex.

Crim. App. 2005). Without proper preservation, even constitutional error

may be waived. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App.

2000); Draughon v. State, 831 S.W.2d 331, 336 (Tex. Crim. App. 1992).

The only complaints that are exempt from the requirements of rule 33.1

are those involving systematic or absolute requirements, or rights that are

waiveable only. See Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App.

2004); Marin v. State, 851 S.W.2d 275, 279-280 (Tex. Crim. App. 1993). All

other complaints, whether constitutional or statutory, are forfeited by the

failure to comply with rule 33.1. See Neal, 150 S. W.3d at 175. 
99

The Court of Criminal Appeals recently held that a defendant may

not raise for the first time on appeal a facial challenge to the

constitutionality of a statute. See Karenev v. State, 261 S.W.3d 428, 434

(Tex. Crim. App. 2009) (a facial challenge to the constitutionality of statute

falls within the category of rights that can be forfeited). In so holding, the

CCA explained that statutes are presumed to be constitutional until it is

determined otherwise and “[t]he State and the trial court should not be

required to anticipate that a statute may later be held to be

unconstitutional.” Id. Here, Appellant filed a Motion to Quash

Superseding Indictment for Failure to Provide Sufficient Notice of Crimes

Charged. 1 CR 206-19. Appellant’s motion only challenged deficiencies in

the indictment, not a constitutional facial challenge to the bribery statute

itself. Id. This holding, which intermediate courts are bound to apply,

prevents the Court from considering Appellant’s fifth and sixth claims.

Accordingly, because Appellant did not present a challenge to the facial

constitutionality of Texas Penal Code Section 36.02(a)(1),(4) in the trial

court, he may not do so now on appeal, and has thus waived these claims.

See Tex. R. App. P. 33.1(a)(1)(A); Karenev, 281 S.W.3d at 434; see also

Holmes v. State, 380 S.W.3d 307, 308-309 (Tex. App.—Fort Worth 2012,

pet. ref’d) (constitutionality of a statute as applied to the defendant must

be raised in the trial court to preserve error). Even if preserved, however,
100

this court should reject appellant’s arguments that the bribery statute is

unconstitutional. 

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

Where First Amendment freedoms are implicated, the law must be

sufficiently definite to avoid chilling protected expression. Long v. State,

931 S.W.2d 285, 287 (Tex. Crim. App. 1996) (citing Grayned v. Rockford,

408 U.S. 104 (1972)). When the constitutionality of a statute is at issue,

we presume the statute is valid and that the legislature did not act

unreasonably or arbitrarily in enacting the statute. Weyandt v. State, 35

S.W.3d 144, 155 (Tex. App.–Houston [14th Dist.] 2000, no pet.). The

burden rests on the moving party to establish its unconstitutionality. Id..

Furthermore, courts will uphold the statute if a reasonable construction of

it can be determined which will render it constitutional and carry out the

legislative intent. Weyandt, 35 S.W.3d at 155. 

C. TheBenefit Benefit Benefit Given by Appellant to Ms. Wooten Did Not Given by Appellant to Ms. Wooten Did Not

Constitute Protected First Amendment Speech. Constitute Protected First Amendment Speech

In his fifth issue, Appellant claims that Section 36.02 violates the

United States Constitution by infringing upon his right to free speech.

According to Appellant, Cary’s conduct of “providing indirect financing to

Wooten’s judicial campaign” and “criminalizing such conduct as a bribe

without any evidence of a quid pro quo agreement impermissibly restricts

Appellant’s right to exercise political speech in violation of the First
101

Amendment.” Brief at 41. Appellant, however, is estopped from raising

this claim. The CCA has recognized that a party may be estopped from

asserting a claim that is inconsistent with that party’s prior conduct. See

Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003) (discussing

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

State, 3 S.W.3d 522 (Tex. Crim. App.1 999)). In the instant case, Appellant

argued in his Motion to Quash Superseding Indictment that any monies

paid from Stacy Cary to Judge Wooten were not “campaign contributions,”

and most importantly, Appellant had no connection to these payments to

Wooten as they were connected to Stacy Cary. See e.g., 1 CR 203-18; 9 RR

61-62. Moreover, the position Appellant now takes on appeal, that monies

paid to Wooten are now campaign contributions from David Cary, Brief at

41-47, is contrary to his defense at trial. Appellant, however, cannot have

it both ways. In light of the trial record, Appellant should be estopped

from now asserting on appeal that monies paid to Wooten by Spencer are

“campaign contributions.” See Arroyo, 117 S.W. 3d at 798 (explaining that

party may be estopped from asserting claim that is inconsistent with his

prior conduct); see also Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim.

App. 2003) (defendant was estopped from raising issue on appeal that trial

court’s discharge of juror was inappropriate where defendant himself

proposed discharge as alternative to mistrial) Davidson v. State, 737

S.W.2d 942, 948 (Tex. App.-Amarillo 1987, pet. ref’d) (stating that
102

defendant could not argue that evidence was insufficient to show cause of

death after admitting victim’s cause of death). 

Regardless, Appellant is incorrect because Texas courts have already

found that, “[b]ribery and extortion, while involving ‘speech,’ are not

protected by the First Amendment.” Sanchez v. State, 995 S.W.2d 677, 688

(Tex. Crim. App. 1999). 

First, the Supreme Court has not revisited the constitutionality of

individual campaign contribution limitations since it upheld those

limitations in Buckley v. Valeo, 424 U.S. 1 (1976). As support for his

argument, Appellant cites to McCutcheon v. Fed. Election Comm’n, 134

S.Ct. 1434, 1442 (2014), where the Court held that “aggregate limits,”

which “restrict[ ] how much money a donor may contribute in total to all

candidates or committees” in a given election cycle violated the First

Amendment. Id. McCutcheon, however, did “not involve any challenge to

the base limits” and “restrict how much money a donor may contribute to

any particular candidate or committee” and which Buckley “previously

upheld as serving the permissible objective of combating corruption.” Id.

The Supreme Court has made clear that only certain contribution limits

comport with the First Amendment. Since contributing money is a form

of speech, preventing quid pro quo corruption or its appearance is the only

governmental interest strong enough to justify restrictions on political

speech. Citizens United v. FEC, 558 U.S. 310, 357–61 (2010). In
24 The State does not concede that Cary’s payments were campaign

contributions, but will proceed to show that the claims that they are would not

allow Appellant relief. 

103

McCutcheon, the Court concluded that “the possibility that an individual

who spends large sums may garner influence over or access to elected

officials or political parties ... does not give rise to such quid pro quo

corruption.” 134 S.Ct. at 1438. In effect, it is only direct bribery, that has

been violated in this case—not influence—that the Court views as crossing

the line into quid pro quo corruption. See Part I, supra. Thus, McCutcheon

is inapplicable to this instant case. 

Essentially, Appellant complains that under the State’s theory of the

case, Cary’s monies given to Spencer for Wooten were “campaign

contributions” and therefore acts protected by the First Amendment. Brief

at 41-43. But, the State pursued prosecution regarding the Appellant’s

benefits–namely monetary exchanges–which were explicitly alleged within

the indictment not to be campaign contributions.24 See 1 CR 156-65. The

payments do not meet the definition of legal campaign contributions.

Accordingly, Appellant fails to present a meritorious claim for relief. 

Moreover, to the extent Appellant argues that the payments to

Spencer were campaign contributions, thus invoking § 36.02(a)(4) of the

Texas Penal Code, his argument still fails. First, under the Penal Code,

“[i]t is an exception to the application of Subdivisions (1), (2), and (3) of

Subsection (a) that the benefit is a political contribution as defined by Title
104

15, Election Code.” § 36.02(d). Evidence presented to the jury that the

payments made to Spencer for the benefit of Suzanne Wooten were (a) not

reported on Suzanne Wooten’s campaign finance reports in any form; (b)

not reported as a loan on Wooten’s personal financial statements, and (c)

were over the limit of an allowable contribution to a judge. Tex. Elec. Code

§§ 254.031, 253.155(b). Since the evidence demonstrated that the payments

made by David Cary do not meet the criteria for a proper legal

contribution, Appellant’s conduct is not encompassed within § 36.02(a)(4).

The Legislature has charged Courts with reading statutes to give “a

just and reasonable result,” and that the statute be interpreted in

“compliance with the constitutions of the state and the United States.”

Tex. Gov’t Code § 311.021(3), (1). And that “(t)he rule that a penal statute

is to be strictly construed does not apply to this code. The provisions of

this code shall be construed according to the fair import of their terms, to

promote justice and effect the objectives of the code.” Tex. Penal Code

§1.05(a). 

The Court of Criminal Appeals has stated that a court should

ordinarily interpret a criminal statute according to the text because that

shows the Legislature’s and Governor’s intent. Boykin v. State, 818

S.W.2d 782,785 (Tex. Crim. App. 1991). The Court recognized that this

form of statutory interpretation should not be followed “where application

of a statute’s plain language would lead to absurd consequences that the
25 S.B. No. I modified the existing bribery statutes creating § 36.02(a)(4)

along with the Ethics Commission and strengthened reporting requirements for

certain elected officials and appointees. See 2 CR 469-89. 

105

Legislature could not possibly have intended.” Id. (italics in original); see

Moore v. Avoyelles Corr. Ctr., 253 F.3d 870, 872 (5th Cir. 2001)

(Legislative intent determined by looking at the plain language of the

statute and if the intent is apparent on the face of the statute no further

inquiry is needed.). “When used in the proper manner, this narrow

exception to the plain meaning rule does not intrude on the lawmaking

powers of the legislative branch, but rather demonstrates respect for that

branch, which we assume would not act in and absurd way.” Boykin, 818

S.W.2d at 785. 

In interpreting the bribery statutes, the Legislature’s intent is clear.

The preamble to the Senate Bill 1, 72nd Legislature, Regular Session,

199125 shows how this law is to be interpreted: 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF

TEXAS:

ARTICLE 1

SECTION 1.01. PURPOSE. It is the policy of the Legislature of the

State of Texas to protect the constitutional privilege of free suffrage by

regulating elections and prohibiting undue influence, while also protecting

the constitutional right of the governed to apply to their government for
106

the redress of grievances. To these ends, the provisions of this Act are

intended, and shall be construed, to achieve the following objectives: 

1) to control and reduce the cost of elections;

(2) to eliminate opportunities for undue influence over elections

and government action; 

(3) to fully disclose information related to expenditures and

contributions for elections and for petitioning the government;

(4) to enhance the potential for individual participation in

electoral and governmental processes; and 

(5) to ensure the public’s confidence and trust in its

government. 

S.B. No. 1 72nd Regular Session, Texas Legislature. 

Appellant is asking this court to grant him First Amendment rights

that do not exist. Appellant claims that Stacy Cary’s payments, at the

direction of Appellant, have some Constitutional protection, yet provides

no valid legal arguments or case law support. In fact, the United States

Supreme Court has consistently upheld laws regulating the amount of

campaign donations, finding that these laws do pass First Amendment

muster. See Federal Elections Commission v. Beaumont, 539 U.S. 146,

161 (2003); McConnell v. Federal Elections Commission, 540 U.S. 93, 138

(2003). In McConnell, the Court stated, 
107

Our treatment of contribution restrictions reflects more than

the limited burdens they impose on First Amendment

freedoms. It also reflects the importance of the interests that

underlie contribution limits-interests in preventing both the

actual corruption threatened by large financial contributions

and the eroding of public confidence in the electoral process

through the appearance of corruption. 

McConnell, at 136, at 656. See also Buckley v. Valeo, 424 U.S. at 27. The

Supreme Court has also upheld that requirements of disclosure of

campaign contributions do not violate the First Amendment. Citizens

United v. Federal Election Commission, 130 S.Ct. 876, 913-914 (2010). 

Appellant asks the court to read the entirety of § 36.02 in an

unreasonable and unprecedented manner. What Appellant suggests the

court do is to read into the bribery statute First Amendment protection to

a person–who, in league with his accomplices, has gone out of his way to

violate numerous campaign finance laws regarding contribution limits and

reporting requirements. 

To require the State to prosecute a person who gives a politician

money under § 36.02(a)(4), after every effort has been made to conceal the

source and destination of the money by (1) making the payment to a third

party, (2) failing to ever deposit the money into the judicial candidate’s

account, and (3) failing to report this money in any public document is an

outcome contrary to legislative intent, precedent and the facts, and is

absurd. 
108

Logically, bribery as defined under § 36.04(a)(4) is found only when

the contribution is made in a manner that is open to public scrutiny.

Politicians cannot be prosecuted for bribery for a legal and properly

reported campaign contribution unless there is direct evidence of the quid

pro quo. But as we have here, with all the monies hidden, there is no basis

in law or logic reason to grant relief on this claim. 

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

The burden rests upon the person who challenges a statute to

establish its unconstitutionality. Kfouri v. State, 312 S.W.3d 89, 92 (Tex.

App.-Houston [14th Dist.] 2010, no pet.). In determining whether a law is

vague and overbroad, the elementary principle of statutory construction

requires us to interpret a statute in accordance with the plain meaning of

its language unless the language is ambiguous or the plain meaning leads

to absurd results. Sanchez, 995 S.W.2d at 683; Duncantell v. State, 230

S.W.3d 835, 842-43 (Tex. App.–Houston [14th Dist.] 2007, pet. ref’d). In

determining a statute’s plain language, words and phrases shall be read

in context and construed according to the rules of grammar and usage.

Sanchez, at 683; Duncantell, at 843. Courts begin the review of the

constitutionality of a statute with the presumption that the statute is valid

and that the legislature did not act arbitrarily and unreasonably in

enacting the statute. Duncantell, 230 S.W.3d at 843. Courts must uphold

a statute if it can determine a reasonable construction that will render it
109

constitutional. Id. When an appellant challenges a statute as both

unconstitutionally overbroad and vague, courts address the overbreadth

challenge first. Id. 

“A facial challenge to a legislative act is, of course, the most difficult

challenge to mount successfully, since the challenger must establish that

no set of circumstances exists under which the act would be valid.” Briggs

v. State, 789 S.W.2d 918, 923 (Tex. Crim. App. 1990); State v. Garcia, 823

S.W.2d 793, 796–97 (Tex. App.-San Antonio 1992, pet. ref’d). In a facial

challenge to the overbreadth and vagueness of a law, a court’s first task is

to determine whether the enactment reaches a substantial amount of

constitutionally protected conduct. Garcia, 823 S.W.2d at 797 (citing

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 494–95 (1982)). If it does not, then the overbreadth challenge must

fail. Id. The court should then examine the facial vagueness challenge

and, assuming the enactment implicates no constitutionally protected

conduct, should uphold the challenge only if the enactment is

impermissibly vague in all of its applications. Id. 

Here, Appellant alleges that he Texas Bribery Statute is

unconstitutional on its face for vagueness and overbreadth. Brief at 44-47.

For the following reasons, Appellants’ arguments fail. 
110

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

A statute is impermissibly overbroad if, in addition to proscribing

activities that may be constitutionally prohibited, it sweeps within its

coverage speech or conduct protected by the First Amendment. Duncantell

v. State, 230 S.W.3d at 843. Section 36.02(a)(1), (4) provides that a person

commits bribery if: 

(a) he intentionally or knowingly offers, confers, or

agrees to confer on another, or solicits, accepts,

or agrees to accept from another:

(1) any benefit as consideration for the

recipient’s decision, opinion, recommendation,

vote, or other exercise of discretion as a public

servant, party official, or voter; 

or

(4) any benefit that is a political contribution

as defined by Title 15, Election Code, or that

is an expenditure made and reported in

accordance with Chapter 305, Government

Code, if the benefit was offered, conferred,

solicited, accepted, or agreed to pursuant to an

express agreement to take or withhold a

specific exercise of official discretion if such

exercise of official discretion would not have

been taken or withheld but for the benefit;

notwithstanding any rule of evidence or jury

instruction allowing factual inferences in the

absence of certain evidence, direct evidence of

the express agreement shall be required in

any prosecution under this subdivision. 
111

Tex. Pen. Code Ann. §§ 36. 02(a)(1), (4) (West 2007). The offense proscribed

in the instant case is in many ways similar to extortion. See Sanchez, 995

S.W.2d at 687. Bribery, while involving “speech,” is not protected by the

First Amendment. Id. Bribes are not protected simply because they are

written or spoken; extortion is a crime although it is verbal. Id. (citing

United States v. Marchetti, 466 F.2d 1309, 1314 (4th Cir. 1972)).

Accordingly, the type of speech prohibited by section 36.02 is not within

the nature of speech protected by the First Amendment; therefore, Section

36.02 is not overbroad in violation of any constitutional provisions. See

Colten v. Kentucky, 407 U.S. 104 (1972); McMorris v. State, 516 S.W.2d

927, 929-30 (Tex. Cr. App.1974). 

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

A statute will be declared unconstitutionally vague if its prohibitions

are not clearly defined. Duncantell, 230 S.W.3d at 844; see Papachristou

v. City of Jacksonville, 405 U.S. 156 (1972) (statute void for vagueness if

it fails to give a person of ordinary intelligence fair notice that his

contemplated conduct is forbidden by the statute.). The vagueness

doctrine is not, however, designed to convert into a constitutional dilemma

the practical difficulties in drawing criminal statutes general enough to

take into account a variety of human conduct and sufficiently specific to

provide fair warning that certain kinds of conduct are prohibited. Id. A

two-part inquiry is applied in examining a criminal statute for vagueness.
112

Id. First, courts review the statute to determine whether an ordinary

law-abiding person receives sufficient information from the statute that his

conduct risks violating the criminal law. Id. A criminal statute need not

be mathematically precise; it need only give fair warning, in light of

common understanding and practices. Id. at 845. A statute is

unconstitutionally vague when no core of prohibited activity is defined. Id.

Second, courts determine whether the statute provides sufficient notice to

law enforcement personnel to prevent arbitrary or discriminatory

enforcement. Id. A statute must be sufficiently definite to avoid the

possibility of arbitrary and erratic arrests and convictions. Id. 

Here, Appellant gives no support of his claim that the “bribery

statute is void for vagueness because it fails to give a person of ordinary

intelligence a reasonable opportunity to know that indirect campaign

financing by way of an interest-free loan to a candidate from a third-party

would be prohibited as a ‘bribe.’ ” Brief at 45. He just states that “the

statute is indefinite and susceptible to arbitrary enforcement. . .”, without

any evidentiary support and no application of law. Id. Nor does he provide

a clear and concise argument for the contentions he makes with

appropriate citation to the record. See Tex. R. App. Proc. 38.1(I);

Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003)

(concluding appellant failed to adequately brief issue when he failed to

apply law to facts of case as required under appellate rules). Because
26 The State notes that Appellant did not provide the court with any

relevant citations to the record regarding these points. If a party does not refer

the appellate court to the precise pages in the record where the error allegedly

occurred, the appellate court may properly overrule the point(s) as inadequately

briefed. Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995), disavowed

on other grounds by Mosley v. State, 983 S.W.2d 249, 263, n.18 (Tex. Crim. App.

1998) (op. on reh’g); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App.

1995). 

113

Appellant has failed to adequately brief this issue, this court need not

reach the merits of his complaint.26 

Regardless, Appellant’s claim lacks merit. As previously cited in Part

V.D, supra, this same offense, Section 36.02, was similarly attacked as

being void for vagueness in Mutscher v. State, 514 S.W.2d 905 (Tex. Crim.

App. 1974). The court concluded in Mutscher that the relevant bribery

statutes of the then applicable penal code “clearly furnish(ed) adequate

warning to anyone of ordinary intelligence that the kind of conduct

embarked on by appellants would constitute an offense.” The present

penal code section making bribery an offense is an amendment of the 1974

codification of the various provisions previously set forth in Title V,

Chapter 1, of the state’s former penal code. It is readily apparent, from a

review of the current statute, what conduct is prohibited by the statute and

that the statute’s application is appropriately restricted so as not to result

in arbitrary and erratic convictions. Therefore Section 36.02 is not

unconstitutionally vague. See Connally v. General Construction Company,
114

269 U.S. 385 (1925); McMorris v. State, 516 S.W.2d 927 (Tex. Crim. App.

1974). 

PRAYER FOR RELIEF

FOR ALL THESE REASONS, the State respectfully requests that

this Honorable Court overrule Appellant’s points of error and affirm his

convictions and sentences. 

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

DANIEL T. HODGE

First Assistant Attorney General

DON CLEMMER

Deputy Attorney General

 for Criminal Justice

HARRY E. WHITE

Assistant Attorney General

Criminal Prosecutions Division
115

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

 /s/ Gretchen B. Merenda 

*Lead Counsel GRETCHEN B. MERENDA*

Assistant Attorney General

State Bar No. 24010233

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone: (512) 936-1400

Facsimile: (512) 936-1280

ATTORNEYS FOR THE STATE

CERTIFICATE OF COMPLIANCE WITH 

TEXAS RULE OF APPELLATE PROCEDURE 9.4

This brief does not comply with Tex. R. App. Proc. 9.4 in that it

contains 28,842 words, in Microsoft WordPerfect 12, Century, 14 points.

The State has, however, filed a “Motion to Exceed Word Count Limit for

Appellee Brief,” in compliance with Rule 9.4(i)(4) of the Texas Rules of

Appellate Procedure. 

 /s/ Gretchen B. Merenda 

GRETCHEN B. MERENDA*

Assistant Attorney General 
116

CERTIFICATE OF SERVICE

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

I do hereby certify that, if the email address for counsel of record for

appellant is on file with the electronic filing manager, then a true and

correct copy of the foregoing pleading was served electronically through the

electronic filing manager. In addition, I do hereby certify that on

September 10, 2014, a true and correct copy of the foregoing pleading was

served on the following attorneys via electronic mail: 

John M. Helms

jhelms@fhsulaw.com

 /s/ Gretchen B. Merenda 

GRETCHEN B. MERENDA*

Assistant Attorney General