Delay, Thomas Dale

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1465-13
THOMAS DALE DELAY, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY
P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
W OMACK, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. J OHNSON, J., filed
a concurring opinion in which C OCHRAN , J., joined. M EYERS, J., filed a dissenting
opinion.
OPINION
The appellant was convicted of the offenses of (1) money laundering of funds of an
aggregate value of $190,000, a first-degree felony at the time,1 and (2) conspiracy to commit
1
T EX. P ENAL C ODE § 34.02(a)(2), (e). The offense is alleged to have occurred in 2002, at
which time it was a first-degree felony to launder money of an aggregate value greater than $100,000.
The money laundering statute has since been amended to raise the threshold value for a first-degree
felony to $200,000. Acts 2005, 79th Leg., ch. 1162, § 2, p. 3803, eff. Sept. 1, 2005. All citations are
to the provisions of the Texas Penal Code and Texas Election Code as they existed in 2002.
DeLay — 2
money laundering of the same aggregate amount, then a felony of the second degree.2 The
trial court sentenced the appellant to five years’ confinement for the object offense, although
it suspended that sentence and placed the appellant on community supervision for a period
of ten years. The trial court sentenced the appellant to three years’ confinement for the
conspiracy offense and did not suspend that sentence. On appeal, the Austin Court of
Appeals reversed both convictions and rendered a judgment of acquittal with respect to each,
having determined that the evidence was legally insufficient to support them.3 We granted
the State’s petition for discretionary review to examine its contention that the court of
appeals failed to consider all of the evidence and failed to view the evidence it did consider
with the proper respect for the jury’s fact-finding function. We will affirm the court of
appeals’s judgment.
To be convicted of money laundering, the accused must be shown to have “knowingly
. . . conduct[ed], supervise[d], or facilitate[d] a transaction involving the proceeds of criminal
activity[,]” and the crime that generated the proceeds must generally rise to the level of a
felony.4 The appellant was convicted of having facilitated and conspired to facilitate the
2
T EX. P ENAL C ODE § 15.02(a), (d). Such an offense would have been a second-degree felony
in 2002, since the object offense of money laundering was a first-degree felony at that time.
3
DeLay v. State, 410 S.W.3d 902 (Tex. App.—Austin 2013).
4
See T EX. P ENAL C ODE § 34.02(a)(2); id. § 34.01(1)(A). “Criminal activity” may also include
an offense punishable by confinement for more than one year under the laws of another state. Id. §
DeLay — 3
making of campaign contributions to certain Texas candidates with funds that were tainted
because they were generated under circumstances that constituted a felony-grade violation
of the Texas Election Code. The appellant has steadfastly insisted, both at trial and on
appeal, that the funds were not tainted, for purposes of either money laundering or conspiracy
to commit the same, because, as a matter of law, the circumstances under which the funds
were generated did not violate any felony provision of the Election Code.
It is axiomatic that, in gauging the legal sufficiency of the evidence to support a
particular 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.5 But 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.6 The court of appeals tacitly
recognized this when it repeatedly alluded to our opinion in Williams v. State, in which we
34.01(1)(B). That provision is not applicable in this case.
5
E.g., Brooks v. State, 323 S.W.3d 893, 899 & n.13 (Tex. Crim. App. 2010).
6
See, e.g., Shipp v. State, 331 S.W.3d 433 (Tex. Crim. App. 2011) (plurality opinion) (holding
that a retail store’s printed receipt falls within the catch-all of “another commercial instrument” in
contemplation of the forgery statute and that the evidence was therefore sufficient to support a
conviction for passing a forged store receipt); Wright v. State, 201 S.W.3d 765 (Tex. Crim. App.
2006) (construing a statutory provision to hold that unusable toxic substances may be included to
obtain a sufficient aggregate weight of methamphetamine to sustain the conviction).
DeLay — 4
observed that, “[i]f the evidence establishes precisely what the State has alleged, but the acts
that the State has alleged do not constitute a criminal offense under the totality of
circumstances, then that evidence, as a matter of law, cannot support a conviction.” 7 We
agree with the court of appeals’s ultimate conclusion that, as a matter of law, what the State
has proven in this case does not constitute either of the alleged criminal offenses.
I. BACKGROUND
A. The Facts
At the time he allegedly committed these offenses, in 2002, the appellant was the
Republican Majority Whip of the United States House of Representatives. In his capacity
as Republican Majority Whip, the appellant established a congressional leadership federal
political action committee called Americans for a Republican Majority (“ARMPAC”),8 with
Jim Ellis as its director. In a calculated effort to gain more Republican officeholders in the
Texas House of Representatives during the 2002 election cycle, with the ultimate goal of
obtaining redistricting in Texas so that more Republicans might gain seats from Texas in the
United States House of Representatives, the appellant set in motion events that led to the
7
DeLay, 410 S.W.3d at 907, 915, 916 (citing Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007)).
8
Testimony showed that “[a] leadership PAC is a Political Action Committee that many of the
members of Congress . . . have” whereby “the monies that they are able to raise and put in their PACs,
they can use to help other like-minded politicians across the country get elected[.]”
DeLay — 5
formation of Texans for a Republican Majority (“TRMPAC”), a Texas general-purpose
political committee, with Ellis’s friend, John Colyandro, as its director. TRMPAC hired two
fund-raisers: Susan Lilly, who specialized in raising political donations from individuals, and
Warren RoBold, whose specialty was corporate fund-raising. TRMPAC generated fund-
raising brochures, expressly identifying as its mission to “help Republican candidates
successfully run and win campaigns in Texas” and assuring corporate donors that, “[u]nlike
other organizations, your corporate contribution to TRMPAC will be put to productive use.”
Indeed, “[r]ather than just paying for overhead,” corporations were told, “your support will
fund a series of productive and innovative activities designed to increase our level of
engagement in the political arena.” Among those activities promised were “[a]ctive
candidate evaluation and recruitment” and “[m]onitoring of campaign progress.” One
solicitation flier aimed at both individual and corporate donors specifically listed among
TRMPAC’s activities that it would “[f]ind the best candidates and help them win[,]” and,
more pointedly, “[d]irect campaign contributions in targeted races.” Another promised that
“[y]our support today will go directly to help Republican candidates in Texas successfully
run and win their campaigns.” Yet another flier—this one actually returned to TRMPAC
along with a $5,000 corporate donation—directly asserted that “[a]ll contributions, whether
to the PAC or individuals, will be used for direct campaign expenses.” The appellant was
listed as a member of TRMPAC’s advisory board on most of this fund-raising literature,
DeLay — 6
although the advisory board’s function was largely ceremonial.
The record suggests that RoBold enjoyed greater success raising corporate
contributions than Lilly did soliciting from individuals. By the middle of September of 2002,
TRMPAC had raised more than $350,000 in corporate contributions. Those funds were
deposited in TRMPAC’s so-called “soft money” account, out of which staff salaries and
administrative expenses were regularly paid. TRMPAC also maintained a “hard money”
account, into which it deposited contributions from individuals. In late August or early
September of 2002, Ellis approached Terry Nelson, an officer with the Republican National
State Election Committee (“RNSEC”), about the possibility of TRMPAC contributing soft
money to RNSEC in exchange for RNSEC making contributions from its hard money
account to Texas candidates. On September 13, 2002, Colyandro signed a blank check from
TRMPAC’s soft money account and forwarded it to Ellis in Washington, who then
completed the check in the amount of $190,000, payable to RNSEC. On receipt, RNSEC
deposited the check into its own soft money account. A short time later, TRMPAC provided
RNSEC with a list of seven Republican candidates for the Texas House of Representatives
and requested RNSEC to send specific amounts totaling $190,000, and in early October, the
RNSEC cut checks to the campaigns of those seven candidates from its hard money account.
At trial, this process was characterized by both parties as a “money swap.” There was some
testimony that, because the uses to which individual political contributions can be put are
DeLay — 7
more extensive than the permissible uses of corporate soft money, hard money is typically
considered more valuable than soft, and that a “one-for-one” exchange of the type that
TRMPAC negotiated with RNSEC was somewhat unusual. In any event, it is undisputed that
RNSEC never transferred any money from its soft money account to its hard money account
to cover the contributions it made to the seven Texas candidates.
Although the appellant did not testify at trial, certain statements he had made to the
media over the years between the time of the indictment in 2005 and his trial in 2010 were
introduced into evidence. Through those statements the appellant denied any direct
participation in the money swap between TRMPAC and RNSEC, but he acknowledged that
he was informed of the swap, and expressly approved of it, shortly after the fact. Indeed, it
has been the consistent position of the defense throughout these proceedings that the swap
was a perfectly legal exchange that did not violate the Texas Election Code. And indeed, the
State does not seem to take issue with the appellant’s assertions that neither TRMPAC’s
contribution of its excess soft money to RNSEC nor RNSEC’s contributions to specific
Texas candidates from its hard money account were unlawful in themselves. It was the
State’s principal theory at trial, nevertheless, that the prior agreement between TRMPAC and
RNSEC to swap precisely $190,000 of corporate contributions from TRMPAC’s soft money
account for that same amount of direct candidate contributions from RNSEC’s hard money
account violated the Election Code, thus generating criminal proceeds for purposes of money
DeLay — 8
laundering.9 Alternatively, on appeal and again in this Court, the State has argued that, even
if the TRMPAC/RNSEC agreement did not render the $190,000 “proceeds of criminal
activity” for purposes of money laundering, the corporations that contributed the money to
TRMPAC in the first place also violated the Election Code, rendering the swap between
TRMPAC and RNSEC a transaction involving tainted funds.
In support of this latter, largely appellate theory, the State points to testimony that it
elicited from executives of a dozen corporations who described the circumstances under
which they were solicited to make, and did make, the initial corporate political contributions
to TRMPAC. One of those corporate executives maintained that his company had insisted
in writing that their contributions be used for the administrative expenses of the general-
9
In its opening remarks during the final guilt-phase summations, the State argued:
The moment, the moment that the decision was made to send the soft dollar
check up to Washington, D.C. with the intent that it ultimately go to candidates for
elective office is the moment that this money became proceeds of criminal activity,
specifically, a third-degree felony.
* * *
This agreement, this - - this agreement with the names of the candidates and
the corresponding amounts is what separates this transaction from any other swap that
anyone else in the [sic] history has done. It is this agreement that makes it money
laundering.
In its brief on discretionary review, as in its brief on appeal, the State has consistently characterized
the agreement as an “exchange” whereby TRMPAC used soft corporate contributions to “purchase”
hard money from RNSEC for use by candidates. State’s Brief on the Merits at 25, 43, 45; State’s
Brief on Direct Appeal at 170. The State employed similar terminology during its oral argument to
this Court.
DeLay — 9
purpose committee itself, and for no other purpose, in undoubted compliance with Texas
law.10 But RoBold confirmed that he did not expressly tell any of the corporate contributors
that they must expressly designate their contributions for administrative uses only. Five of
the corporate executives were never asked during trial whether they had expressly limited
TRMPAC’s use of their contributions to this purpose, though it is apparent from their
demonstrated ignorance of Texas law with respect to the specific limitations on corporate
contributions that they did not.11 And six of the corporate executives expressly admitted on
the stand that their corporate political contributions were not expressly limited in scope to
the specific purpose of defraying TRMPAC’s administrative costs.12 Most of them
maintained, however, that they had trusted or assumed that their contributions would be put
to a lawful purpose and/or that they had duly consulted with their corporate legal counsel,
10
Philip Morris Companies, Inc., contributed $25,000, along with a cover letter designating that
this contribution must be used by TRMPAC exclusively to help cover its administrative expenses.
TRMPAC’s accountant testified that another corporate donor, Lexmark International, Inc., also
expressly designated that its $5,000 corporate contribution could only be put to the purpose of
defraying TRMPAC’s administrative costs.
11
El Paso Energy Services Company, Cornell Companies, Bacardi U.S.A., Inc., Cracker Barrel,
and Reliant Energy made contributions of $50,000, $10,000, $20,000, $25,000, and $25,000,
respectively. Both Cracker Barrel’s and Reliant Energy’s contributions were not deposited into
TRMPAC’s soft money account until October 1, 2002, several weeks after Colyandro had forwarded
the blank check from that account to Ellis to hand over to RNSEC.
12
Five companies made corporate contributions without specifying a particular use for which
they must be put: Questerra Corporation ($50,000), Westar Energy ($25,000), Diversified Collection
Services, Inc. ($50,000), Sears Roebuck and Co. ($25,000), and The Williams Companies, Inc.
($25,000).
DeLay — 10
it never having been their intention to violate Texas law.13
B. The Indictment
In a re-indictment,14 the appellant was charged by separate counts with both the object
offense of money laundering (Count II) and with conspiracy to commit money laundering
(Count I). In both counts, the proceeds of criminal activity that were claimed to have been
laundered derived from alleged violations of Subchapter D of Chapter 253 of the Election
Code,15 which governs corporate political contributions.
In Count II, which set out the object offense of money laundering,16 the indictment
13
During trial, the prosecutor asserted that at least two of the corporations eventually signed
diversion agreements with the Travis County District Attorney in order to avoid prosecution in which,
the prosecutor claimed, they did admit to some wrongdoing. The defense hotly contested these
assertions. The record shows that Sears and Roebuck, Inc., as part of an agreement with the district
attorney’s office whereby the indictment against it was dismissed, asserted that it had not intended to
violate Texas law. According to the prosecutor, Cracker Barrel also “signed a pretrial diversion
agreement accepting responsibility for having made a mistake[,]” although Cracker Barrel’s legal
department had vetted TRMPAC’s solicitation and approved the contribution, having perceived no
legal impediment at the time.
14
The original indictment also charged the appellant with conspiracy to violate the Texas
Election Code. This Court ultimately sustained the trial court’s ruling “to quash the Election Code-
based conspiracy charges” on the basis of our holding that Section 15.01 of the Texas Penal Code, the
criminal conspiracy provision, did not apply to offenses defined in the Election Code until legislative
amendment in 2003. State v. Colyandro, 233 S.W.3d 870, 885 (Tex. Crim. App. 2007); T EX. P ENAL
C ODE § 15.01. See note 45, post.
15
T EX. E LEC. C ODE ch. 253, subch. D.
16
Count II of the indictment (money laundering) alleged that the appellant:
did knowingly conduct, supervise, and facilitate a transaction involving the proceeds
DeLay — 11
alleged two things of particular note. First, it expressly alleged that the particular transaction
that constituted the money laundering was the transfer of $190,000 from the RNSEC to the
seven Texas candidates. Second, it expressly identified the event that rendered that $190,000
of criminal activity that constituted an offense classified as a felony under the laws of
this state, to wit, the offense of knowingly making a political contribution in violation
of Subchapter D of Chapter 253 of the Texas Election Code, a felony violation of
Section 253.003 of the Election Code; that the aforesaid transaction consisted of the
transfer of funds of the aggregate value of $190,000 from the Republican National
Committee and the Republican National State Election Committee, a nonfederal
component and account of the Republican National Committee, to several candidates
for the Texas House of Representatives that were supported by Texans for a
Republican Majority PAC, namely, Todd Baxter, Dwayne Bohac, Glenda Dawson,
Dan Flynn, Rick Green, Jack Stick, and Larry Taylor; that the defendants conducted,
supervised, and facilitated the aforesaid transaction by:
(1) negotiating with Terry Nelson, deputy chief of staff of the Republican National
Committee, for an agreement, arrangement, and understanding whereby
Texans for a Republican Majority PAC would make a contribution of a certain
sum of money to the Republican National Committee and its nonfederal
component and account, the Republican National State Elections Committee,
and whereby the Republican National Committee and the Republican National
State Elections Committee would make contributions to the aforesaid
candidates;
(2) providing the said Terry Nelson with certain information concerning
contributions to be made by the Republican National Committee and the
Republican National State Elections Committee to the said candidates, to wit,
the names of the said candidates and amounts that Texans for a Republican
Majority PAC suggested be contributed to each of the said candidates;
(3) signing the check reproduced at the conclusion of this count; and
(4) transferring funds of the value of $190,000 from Texans for a Republican
Majority PAC to the Republican National Committee and the Republican
National State Elections Committee;
and that the value of the funds that constituted the aforesaid proceeds of criminal
activity was $100,000 or more.
DeLay — 12
the “proceeds of criminal activity” to be “a felony violation of Section 253.003 of the
Election Code,” and more specifically, “the offense of knowingly making a political
contribution in violation of Subchapter D of the Texas Election Code[.]” 17 Count II did not
specifically allege who knowingly made the political contribution that violated Subchapter
D. It also did not allege, as an alternative theory of the offense, that the $190,000 sent from
RNSEC to the seven candidates also constituted the proceeds of criminal activity by virtue
of the knowing acceptance (that is, by TRMPAC) of a political contribution in violation of
Subchapter D.18 Thus, Count II required the State to prove the underlying Election Code
violation by showing that someone knowingly made an unlawful political contribution under
Section 253.003(a)—not that TRMPAC knowingly accepted one as proscribed by Section
253.003(b).19
17
Emphasis added. See T EX. E LEC. C ODE § 253.003(a) (“A person may not knowingly make
a political contribution in violation of this chapter.”); id. § 253.003(e) (“A violation of Subsection (a)
. . . is a felony of the third degree if the contribution is made in violation of Subchapter D.”).
18
See id. § 253.003(b) (“A person may not knowingly accept a political contribution the person
knows to have been made in violation of this chapter.”); id. § 253.003(e) (“A violation of Subsection
. . . (b) is a felony of the third degree if the contribution is made in violation of Subchapter D.”).
19
See Curry v. State, 30 S.W.3d 394, 404-05 (Tex. Crim. App. 2000) (when the indictment
alleges a few, but not all, of the alternative statutory manner and means of committing the offense, the
hypothetically correct jury charge against which the sufficiency of the evidence will be measured is
limited to only those statutory theories alleged, and evidence of other statutory alternatives will not
satisfy the State’s burden of proof); Geick v. State, 349 S.W.3d 542, 547-48 (Tex. Crim. App. 2011)
(when pled, a statutory definition becomes an element of the offense that the State must prove).
DeLay — 13
Count I, which alleged conspiracy to commit money laundering,20 was somewhat less
specific with respect to the object offense, as conspiracy counts are wont to be.21 Unlike
Count II, Count I did not identify the particular money laundering transaction that the
conspirators allegedly agreed to perpetrate. However, as with Count II, Count I also did not
allege the alternative theory that the proceeds derived from criminal activity by virtue of the
knowing acceptance of a political contribution in violation of Subchapter D of Chapter 253
of the Election Code. Thus, both counts required the State to prove the underlying Election
20
Count I of the indictment (conspiracy) alleged that the appellant:
with intent that a felony be committed, to wit, with intent that the offense of knowingly
making a political contribution to a candidate for the Texas House of Representatives
in violation of Subchapter D of Chapter 253 of the Texas Election Code, a felony of
the third degree, be committed, and with intent that the offense of money laundering
of funds of the value of $100,000 or more, a felony of the first degree, be committed,
did agree with one or more persons, namely, John Dominick Colyandro, also known
as “John Colyandro,” James Walter Ellis, also known as “Jim Ellis,” Thomas Dale
DeLay, also known as “Tom DeLay,” Texans for a Republican Majority PAC, also
known as “TRMPAC,” and the Republican National Committee, also known as “the
RNC,” that they or one or more of them engage in conduct that would constitute the
aforesaid offense, and the defendant, John Dominick Colyandro, the defendant, James
Walter Ellis, and the Republican National Committee, did perform an overt act in
pursuance of the agreement, to wit: [a lengthy list of overt acts by which TRMPAC
sent the check to RNSEC in exchange for particular contributions for the seven named
Texas candidates, as paraphrased by the court of appeals, see DeLay, 410 S.W.3d at
908].
21
See, e.g., Farrington v. State, 489 S.W.2d 607, 609 (Tex. Crim. App. 1973) (“An indictment
charging a conspiracy to commit a felony need not allege the offense intended with the particularity
necessary in an indictment charging the commission of the intended offense.”); Smith v. State, 781
S.W.2d 418, 420) (Tex. App.—Houston [1st Dist.] 1989, no pet.) (applying the holding of Farrington
to an indictment under the current penal code).
DeLay — 14
Code violation by showing that someone knowingly made an unlawful political contribution
under Section 253.003(a), not that TRMPAC knowingly accepted one as proscribed by
Section 253.003(b).
C. The Appeal
The court of appeals panel, over the dissent of the Chief Justice, held that the evidence
was insufficient to establish either count of the indictment.22 The majority opinion began
with the premise that sufficient proof with respect to both counts, including the conspiracy
count, depended upon evidence “that there was a felony criminal offense which generated
proceeds.”23 With respect to the State’s trial theory that TRMPAC’s agreement with RNSEC
to swap soft corporate money for hard money sufficed to taint the money that RNSEC sent
back to the candidates, the court of appeals rejected the State’s argument that this exchange
constituted a violation of the Election Code.24 Noting that it is legal for Texas corporations
to make expenditures and contributions in connection with out-of-state elections, the court
of appeals found nothing illegal about TRMPAC’s transfer of $190,000 of corporate
donations to RNSEC.25 Nor did RNSEC violate the Election Code by sending $190,000 from
22
DeLay, 410 S.W.3d at 916.
23
Id. at 909.
24
Id. at 912-13
25
Id. at 913.
 DeLay — 15
its own individual donor hard money account to Texas candidates.26 Because no funds were
transferred between RNSEC’s two accounts, the money TRMPAC sent to RNSEC retained
its character as soft corporate money, to be used for whatever legal purposes RNSEC deemed
fit, while the money RNSEC sent from its hard money account to Texas candidates retained
its character as individual donor money.27 Moreover, even if the funds that TRMPAC sent
to RNSEC were somehow tainted, the transaction by which RNSEC sent money to Texas
candidates did not “involve” that tainted money, and therefore could not support money
laundering (or even a conspiracy to commit money laundering).28
Nor did the majority believe that the State proved, for purposes of either money
laundering or conspiracy to commit money laundering, that RNSEC’s transfer of funds
involved criminally tainted proceeds by virtue of the initial corporate contributions made to
TRMPAC. The court of appeals held that the State’s evidence failed to show that the
corporations harbored the requisite intent to violate Section 253.003(a) of the Election Code,
“[g]iven the testimony of the corporate representatives [of the lack of any intent to violate
Texas law] and the undisputed facts that the corporations could lawfully make donations to
26
Id.
27
Id.
28
Id. at 914-15.
 DeLay — 16
TRMPAC and TRMPAC could lawfully transfer the corporate funds out of state[.]” 29 For
this reason as well, the court of appeals held the evidence to be insufficient to support a
conviction for either the object offense or the conspiracy offense.
Chief Justice Jones dissented. He opined that the jury had sufficient evidence,
particularly in the form of TRMPAC’s fund-raising literature, to infer that the corporate
contributors were aware that TRMPAC intended to direct their contributions to candidates,
in violation of Subchapter D of Chapter 253 of the Election Code.30 In a footnote, he
expressed the additional view that the agreement between TRMPAC and RNSEC to swap
soft money for hard money was also enough to demonstrate an Election Code violation,
opining that “[s]uch conduct appears to be an attempt to circumvent, rather than comply with,
Election Code restrictions on the use of corporate political contributions.” 31 Particularly in
view of this disagreement among the justices below,32 we granted discretionary review.
II. ANALYSIS
A. The Law: The Election Code and “Criminal Proceeds”
1. Definitions
29
Id. at 911.
30
Id. at 916-19.
31
Id. at 919 n.3.
32
T EX. R. A PP. P. 66.3(e).
DeLay — 17
A person commits money laundering if he “knowingly . . . conducts, supervises, or
facilitates a transaction involving the proceeds of criminal activity[.]” 33 A person commits
criminal conspiracy if, with intent that a felony (here, money laundering) be committed, he
agrees with one or more persons that they engage in conduct that would constitute that
offense, and one of them performs an overt act in pursuit of that agreement.34 “Criminal
activity” for purposes of money laundering “means any offense, including any preparatory
offense, that is . . . classified as a felony under the laws of this state[.]” 35 “‘Proceeds’ means
funds acquired or derived directly or indirectly from, produced through, or realized through
an act.”36 The criminal activity, the proceeds of which are said to have been involved in the
transaction that the appellant conducted, supervised, or facilitated, was a purported felony-
level violation (or violations) of the Texas Election Code.
Specifically, the proceeds are said to have been corporate political contributions made
under circumstances that constituted a third-degree felony under the Election Code. Under
Chapter 253, Subchapter D, Section 253.094 of the Election Code, “[a] corporation . . . may
33
T EX. P ENAL C ODE § 34.02(a)(2).
34
Id. § 15.02(a).
35
Id. § 34.01(1)(A).
36
Id. § 34.01(4).
 DeLay — 18
not make a political contribution . . . that is not authorized by this subchapter.” 37 Violation
of this stricture is labeled “an offense” that is a “felony of the third degree.” 38 An illegal
corporate political contribution is also a third-degree felony by virtue of Sections 253.003(a)
and (e) of the Election Code, which provide that “[a] person may not knowingly make a
political contribution in violation of” Chapter 253 of the Election Code,39 and that making
such an illegal contribution “is a felony of the third degree if the contribution is made in
violation of Subchapter D[,]” which covers Section 253.094’s limitations on corporate
political contributions.40 A corporation “may make one or more political expenditures to
37
T EX. E LEC. C ODE § 253.094(a).
38
Id. § 253.094(c).
39
The general definitions in the Texas Penal Code apply to penal provisions outside the Penal
Code. T EX. P ENAL C ODE § 1.03(b). Under Section 1.07(38) of the Penal Code, “person” includes a
corporation. Id. § 1.07(38). Moreover, reading the various provisions of Chapter 253 of the Election
Code together makes it evident that “person” was meant to embrace corporations. See, e.g., former
T EX. E LEC. C ODE § 253.002 (repealed by Acts 2011, 82nd Leg., ch. 1009, § 6(1), p. 2557 , eff. June
17, 2011)(prohibiting “a person” from knowingly making a direct campaign expenditure, but then
excepting “a corporation” from this prohibition under certain circumstances). Indeed, if the Legislature
did not intend for corporations to count as “persons” for purposes of Section 253.003(a), it would not
have included subsection (e), making it a felony-grade offense if the “person” violates Subchapter D
of Chapter 253, governing corporations and labor organizations. T EX. E LEC. C ODE § 253.003(e).
40
T EX. E LEC. C ODE § 253.003(a), (e). It is also an offense for a person to “knowingly accept”
an illegal campaign contribution, under Section 253.003(b) of the Election Code. See id. § 253.003(b)
(“A person may not knowingly accept a political contribution the person knows to have been made in
violation of this chapter.”). As we have already observed, however, this theory of how the corporate
political contributions may have constituted the “proceeds of criminal activity” for purposes of money
laundering and conspiracy to commit money laundering was not alleged in the indictment. We express
no opinion regarding this theory since it is not before us.
DeLay — 19
finance the establishment or administration of a general-purpose committee.” 41 A “political
committee” is “a group of persons that has as a principal purpose accepting political
contributions or making political expenditures[,]” while a “general-purpose committee” is
a political committee “that has among its principal purposes[,]” inter alia, supporting or
opposing unidentified candidates for public office.42 A “political contribution” includes a
“campaign contribution,” which is defined, in turn, as “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[.]”43 Finally, “‘[c]ontribution’ means a direct or indirect
transfer of money, goods, or 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.” 44
2. The State’s Alternative Theories of “Criminal Proceeds”
In a nutshell, the Texas Election Code prohibits a corporation from making 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. The State contends that the appellant committed
41
Id. § 253.100(a) (emphasis added). An “expenditure” is defined as “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.” Id. § 251.001(6).
42
Id. § 251.001(12), (14).
43
Id. § 251.001(5), (3).
44
Id. § 251.001(2).
 DeLay — 20
money laundering, and conspired to commit money laundering, by facilitating a transaction
involving funds that constituted criminal proceeds in that they were derived from felonious
corporate political contributions.
The State proffers two theories for what rendered the corporate political contributions
felonious. At trial, the State’s theory was that the appellant’s general-purpose political
committee, TRMPAC, illegally agreed upon a scheme with RNSEC to route corporate
political contributions indirectly to candidates, in violation of Sections 253.003(a),
253.094(a), and 253.100(a) of the Election Code, which together prohibit making corporate
contributions to a general-purpose committee for any purpose other than the establishment
and administrative expenses of that general-purpose committee.45 We shall call this the
“agreement” theory of criminal proceeds. The State’s second theory, stressed more on appeal
than at trial, was that the corporate political contributions were illegal at their inception
because they were made by the various corporate entities to TRMPAC, not as designated
“political expenditure[s] to finance the establishment or administration of [that] general
45
Id. §§ 253.003(a), 253.094(a), 253.100(a), 251.001(2), (3), (5). This Court held, in
Colyandro, 233 S.W.3d at 885, that, at least as of 2002, Section 15.01 of the Texas Penal Code, the
criminal conspiracy provision, did not apply to offenses defined in the Election Code—although the
Legislature changed that by amendment to the Election Code in 2003. See Acts 2003, 78th Leg., ch.
393, § 2, p. 1633, eff. Sept. 1, 2003; see also note 14, ante. The State focuses on the definition in
Section 251.001(2) of “contribution,” which includes an “agreement . . . to make a transfer[,]” T EX.
E LEC. C ODE § 251.001(2), to argue that the appellant violated the Election Code regardless of the
applicability of Section 15.01 of the Penal Code to the Election Code.
DeLay — 21
purpose committee[,]” as permitted by the Election Code,46 but instead, with the specific
intent that they be put to impermissible use in connection with Texas campaigns.47 We shall
designate this the “corporation” theory of criminal proceeds. We shall determine whether
the evidence is sufficient to support convictions under either theory.
There is an additional wrinkle to iron out before we proceed: What are the theories
of the money laundering “transaction” that are available to the State for sufficiency-of-the-
evidence purposes? As we have already noted, Count I, which alleged conspiracy to commit
money laundering, did not specify the particular transaction by which the State intended to
prove the underlying object offense of money laundering. But Count II, which alleged the
object offense, identified the transaction to be RNSEC’s hard money contributions to the
seven Texas candidates. Is the State bound to this particular transaction, at least for purposes
of proving the object offense of money laundering? It is arguable that sufficiency of the
evidence should be measured against any non-statutory theory of “transaction” that the
46
T EX. E LEC. C ODE § 253.100(a). See Ex parte Ellis, 309 S.W.3d 71, 88 (Tex. Crim. App.
2010) (“[I]t is . . . clear that [Section] 253.100 contemplates expenditures made by a corporation for
certain purposes. A contribution with no strings attached would not qualify as such an expenditure.
* * * [T]here is no such thing as a legal undesignated corporate political contribution.”); T EX.
E THICS C OMM’N O P. No. 132, at 2 (1993) (“[T]he corporation may make a contribution of money to
the general-purpose committee, with the restriction that it be used only for permissible purposes under
section 253.100.”).
47
T EX. E LEC. C ODE §§ 251.001(3), 253.094(a), 253.003(a).
DeLay — 22
evidence would support, and not simply that which was alleged in the indictment.48 Rather
than definitively resolve that question today, we will simply assume arguendo that the
evidence may also support the appellant’s convictions based on the transaction by which
TRMPAC conveyed money from its soft money account to RNSEC’s soft money account,
so long as the evidence establishes that this transaction was made with funds that were by
that time already tainted by either of the State’s theories of criminal proceeds—“agreement”
or “corporate.” Ultimately, we agree with the court of appeals that the appellant’s
convictions cannot stand because there is no possible view of the evidence that can establish
that any transaction alleged to comprise money laundering involved the proceeds of a felony
violation of the Texas Election Code, under either theory of criminal proceeds.
B. Transaction One: RNSEC’s Contribution to Texas Candidates
1. The “Agreement” Theory of Criminal Proceeds
Presupposing that the relevant money laundering transaction is RNSEC’s hard money
contributions to the seven Texas candidates, the question under the State’s “agreement”
48
We measure the sufficiency of the evidence by the so-called hypothetically correct jury charge,
one which accurately sets out the law, is authorized by the indictment, does not unnecessarily increase
the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant is tried. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). When the indictment alleges only one of alternative statutory definitions or
elements for how the offense occurred, the State must prove the alternative that it has pled, and proof
of some other alternative will not save the conviction. Johnson v. State, 364 S.W.3d 292, 294 n.10
(Tex. Crim. App. 2012). “[B]ut we have said also that the hypothetically correct jury charge does not
necessarily have to track exactly all of the charging instrument’s allegations.” Id. at 294.
 DeLay — 23
theory is whether those funds constituted criminal proceeds by virtue of TRMPAC’s earlier
agreement with RNSEC to “swap” TRMPAC’s soft money for RNSEC’s hard money. In the
State’s view, this prior agreement itself constituted a felonious political contribution, in
contemplation of Sections 253.003(a) and (e) of the Election Code, because it was an
“agreement” to make an “indirect transfer of money” “with the intent that it be used in
connection with a campaign for elective office,” under Sections 251.001(2), (3) and (5) of
the Election Code.49 Like the court of appeals, we disagree.
49
T EX. E LEC. C ODE § 251.001(2),(3), (5); id. § 253.003(a), (e). Actually, it is less than clear
to us that the Texas Election Code makes it a felony for TRMPAC to pass on corporate contributions
to candidates. While it is certainly true that TRMPAC would commit a felony by knowingly accepting
a political contributions for this purpose, under Section 253.003(b) of the Election Code, id. §
253.003(b), we find no provision in the Election Code making it an independent felony for TRMPAC,
once it has illegally accepted such political contributions, to then pass those contributions on to
candidates. The trial court instructed the jury in this case that such a transfer was an offense in its own
right, but did so on authority of a provision in the Texas Election Code that governs political parties
and their political action committees, not a non-party-affiliated general-purpose committee such as
TRMPAC. In its final jury charge at the guilt stage of trial, the trial court informed the jurors:
It is a violation of Subchapter D of Chapter 253 of the Texas Election Code for
a political party or a General Purpose political committee to use corporate
contributions in Texas at any time for purposes other than to defray the normal
overhead expenses and operating costs incurred by the party or political committee or
to administer a primary election or convention held by a party.
(Emphasis added). But this language (except for the italicized portions) derives from a completely
different chapter (not Chapter 253, much less Subchapter D of Chapter 253) of the Election Code,
which governs only political parties, not general-purpose political committees such as TRMPAC. See
T EX. E LEC. C ODE § 257.002(a) (“A political party that accepts a contribution [from a corporation] may
use the contribution only to . . . defray normal overhead and administrative or operating costs incurred
by the party; or . . . administer a primary election or convention held by the party.”).
The closest we can find to a provision in Chapter 253 that might serve to criminalize
TRMPAC’s direct transfer of received corporate contributions to a candidate, apart from Section
DeLay — 24
The State does not contend that the transfer of corporate contributions from
TRMPAC’s soft money account to RNSEC’s soft money account was, in itself, a violation
of the Election Code.50 And it is uncontested that RNSEC, in turn, never transferred this
corporate money from its soft money account into its individual hard money account. Nor
does the State contend that the transfer of money from RNSEC’s hard money account to the
Texas candidates violated the Election Code. Presumably the State would agree that, had
these transactions occurred serendipitously, without any prior collusion or plan on the part
of TRMPAC and RNSEC—that is to say, had TRMPAC simply decided to send its excess
corporate contributions (beyond what it needed to cover its own administrative expenses) to
RNSEC, which enjoyed greater flexibility in their uses, and had RNSEC made a wholly
independent determination that some of its hard money could best be put to use in the form
of contributions to support specific Republican candidates in Texas—then there would be
253.003(b)’s prohibition of the knowing acceptance of political contributions for that purpose, is to
be found in Section 253.005. See id. § 253.005(a) (“A person may not knowingly make or authorize
a political expenditure wholly or partly from a political contribution the person knows to have been
made in violation of this chapter.”). But a violation of this provision constitutes only a Class A
misdemeanor, id. § 253.005(c), and so it cannot support a conviction for money laundering, which
requires that the proceeds of criminal activity derive from a felony offense. T EX. P ENAL C ODE §
34.01(1)(A).
50
See T EX. E THICS C OMM’N O P. N O. 277, at 1 (1995) (“Although the restrictions on corporate
political activity do not specify that they apply only to activity in connection with Texas elections, we
have stated before that the clear purpose of title 15 [of the Texas Election Code, which regulates
political funds and campaigns] is to regulate Texas campaigns and Texas elections.”) (citing T EX.
E THICS C OMM ’ N O P . N O. 208 (1994) (Texas Election Code does not require general-purpose
committees to report political expenditures made on out-of-state campaigns and officeholders)).
DeLay — 25
no identifiable violation of Subchapter D of Chapter 253 of the Election Code. Although the
evidence is clear that there was an explicit agreement to “swap” TRMPAC’s soft corporate
money for RNSEC’s hard money, we fail to perceive how such a prior agreement—even an
agreement entailing identical amounts (the so-called “one-for-one” swap of $190,000) and
specifying particular candidates—could serve to transmute two transfers, neither of which
by itself violates the Election Code, into a single transfer that does. In the absence of any
transfer of corporate money from RNSEC’s soft money account into its hard money account,
the character of the monies never changed; it cannot be said that the Texas candidates ever
received corporate contributions, even indirectly. Therefore, we agree with the court of
appeals that the agreement between TRMPAC and RNSEC did not violate Subchapter D of
Chapter 253 of the Election Code.
Moreover, even were we to disagree with the court of appeals and hold that the prior
agreement could somehow operate to change the character of the $190,000 that RNSEC sent
to the Texas candidates from hard money into corporate soft money, we still could not
conclude that the evidence would suffice to establish money laundering. The reason is fairly
simple: There is nothing in the record to show that the appellant knew that he was
conducting, supervising, or facilitating a transaction that involved the proceeds of criminal
activity. The State has failed to establish the requisite culpable mental state to prove the
offenses of money laundering and conspiracy to commit money laundering.
DeLay — 26
A person commits money laundering if he “knowingly . . . conducts, supervises, or
facilitates a transaction involving the proceeds of criminal activity[.]”51 From a grammatical
standpoint, this statutory language is patently ambiguous. Is it enough that the person
knowingly conducts, supervises, or facilitates a transaction? Or must he also be “aware” of
the added circumstance surrounding that conduct that makes it unlawful, namely, that the
transaction he is conducting, supervising, or facilitating involves the proceeds of criminal
activity?52 How much of the ensuing statutory language is the adverb “knowingly” intended
to modify? As in other instances of statutory construction in the face of this sort of
grammatical uncertainty, the question boils down to “how far down the sentence” the
Legislature intended for the mens rea requirement of knowledge “to travel.” 53 We think the
Legislature must surely have intended that, to commit or conspire to commit money
laundering, the actor must be aware of the fact that the transaction involves the proceeds of
criminal activity. Otherwise, the statute would attach a mens rea to nothing more than
conduct—conducting, supervising, or facilitating a transaction—that is not intrinsically
blameworthy. As in McQueen v. State, “[w]hat makes the conduct unlawful is that it is done
51
T EX. P ENAL C ODE § 34.02(a)(2) (emphasis added).
52
See id. § 6.03(b) (“A person acts knowingly, or with knowledge, with respect to . . .
circumstances surrounding his conduct when he is aware . . . that the circumstances exist.”).
53
Liparota v. United States, 471 U.S. 419, 424 n.7 (1985) (quoting W. LaFave & A. Scott,
C RIMINAL LAW § 27 (1972)).
DeLay — 27
under certain circumstances,” and, in the face of a statute that is ambiguous with respect to
the extent of the mens rea requirement, we have resolved the ambiguity in favor of applying
“some form of culpability . . . to those ‘conduct elements’ which make the overall conduct
criminal.”54 That is how the ambiguity in Section 34.02(a)(2) must be resolved.55
There is no evidence in the record from which it may fairly be inferred that the
appellant was aware that, by agreeing beforehand to send $190,000 of soft money to RNSEC
54
781 S.W.2d 600, 603, 604 (Tex. Crim. App. 1989). See also Liparota, 471 U.S. at 426 (“This
construction is particularly appropriate where, as here, to interpret that statute otherwise would be to
criminalize a broad range of apparently innocent conduct.”); United States v. X-Citement Video, Inc.,
513 U.S. 64, 69, 73 (1994) (in construing a federal offense containing an ambiguity with respect to
how much of ensuing statutory language the word “knowingly” was meant to modify, the Supreme
Court concluded that the culpable mental state must be applied broadly, noting that, “[i]f we were to
conclude that ‘knowingly’ only modifies the relevant verbs in [the statute], we would sweep within
the ambit of the statute actors who had no idea that they were even dealing with sexually explicit
material[,]” and that “the age of the performers is the crucial element separating legal innocence from
wrongful conduct”); Celis v. State, 416 S.W.3d 419, 428 (Tex. Crim. App. 2013) (plurality opinion)
(“[C]ritical to the McQueen analysis was that the conduct regulated by the statute . . . is an ‘otherwise
lawful act’ that becomes criminal only under certain circumstances[.]”).
55
This is not to say that, in order to be convicted, the actor must also be aware that conducting,
supervising, or facilitating a transaction that he knows involves proceeds of criminal activity constitutes
money laundering. Under Section 8.03(a) of the Penal Code, “[i]t is no defense to prosecution that the
actor was ignorant of the provisions of any law after the law has taken effect.” T EX. P ENAL C ODE §
8.03(a). However, as we read Section 34.02(a)(2) of the Penal Code, it is an element of the offense
of money laundering that the actor was aware of the fact that the money he is purported to have
laundered was the proceeds of felony criminal activity. The federal money laundering statute similarly
requires knowledge that the funds constitute ill-gotten gains. See 18 U.S.C. 1956(a)(1) (“Whoever,
knowing that the property involved in a financial transaction represents the proceeds of some form of
unlawful activity . . . .”); United States v. Morelli, 169 F.3d 798, 804 (3d Cir. 1999) (one of the
elements of money laundering under this provision is “knowledge that the transaction involves the
proceeds of some unlawful activity”). But, in order to commit the federal offense, the actor need not
know that trafficking in what he knows to be ill-gotten gains constitutes money laundering. United
States v. Sokolow, 91 F.3d 396, 408 (3d Cir. 1996).
DeLay — 28
in exchange for RNSEC sending $190,000 of its hard money to the Texas candidates,
TRMPAC had committed a violation of the Election Code. Indeed, the evidence suggests
that the appellant, to the extent that he was personally involved in the agreement at all,
believed that, so long as the soft money retained its character as soft money and the
contributions from RNSEC to the Texas candidates came from an account into which no
corporate contributions had been deposited, the agreed-to swap would not run afoul of the
Election Code. In the absence of some decisional law or other authority in Texas at that time
that had construed the Election Code so as to render such an agreed swap illegal under the
Election Code, it cannot reasonably be concluded that the appellant was, or even could have
been, aware that the transaction whereby RNSEC contributed hard money to the seven Texas
candidates involved the proceeds of criminal activity. That being so, he simply was not
susceptible to conviction for laundering money or conspiring to launder money.56
56
We perceive at least two other potential bases to question the legitimacy of the State’s
“agreement” theory of criminal proceeds. Both questions derive from the statutory definition of
“contribution” in Section 251.001(2) of the Election Code: “an agreement made . . . to make a
transfer.” T EX. E LEC. C ODE § 251.001(2). First of all, in order for the agreement between TRMPAC
and RNSEC to exchange soft money deriving from corporate contributions for hard money to be given
directly to political candidates to constitute an illegal corporate political contribution, so as to render
the later transfer of hard money from RNSEC to the seven Texas candidates a transaction involving
“criminal proceeds” for money laundering purposes, must the corporations themselves be parties to
that agreement? After all, unless there is a violation of Subchapter D of Chapter 253 of the Election
Code, which governs corporate contributions, there is no felony offense upon which to predicate
convictions for money laundering or conspiracy to commit money laundering. And there is no
evidence in the record that the corporate contributors had any knowledge of, much less complicity in,
the money swap agreement between TRMPAC and RNSEC. Secondly, does an agreement to make
a transfer of money constitute a “contribution” if the recipients of the transfer—here, the seven Texas
candidates—are not parties to that agreement? It is at least arguable that the “agreement” contemplated
DeLay — 29
2. The “Corporation” Theory of Criminal Proceeds
Continuing to entertain the presupposition that the relevant money laundering
transaction is, as alleged in Count II of the indictment, RNSEC’s hard money contributions
to the seven Texas candidates, the evidence cannot support the appellant’s convictions under
the State’s “corporation” theory for the same reasons that the evidence cannot support
prosecuting the appellant under the State’s “agreement” theory. Because this transaction did
not involve the corporate contributions originally made to TRMPAC (and because the
appellant was not aware, in any event, that the transaction did involve corporate contributions
on account of the agreement to swap TRMPAC corporate contributions for RNSEC hard
money), it is inconsequential to the sufficiency analyses whether those corporate
contributions were made to TRMPAC in violation of Section 253.003(a) and Subchapter D
of Chapter 253 of the Election Code. The transactions from RNSEC to the seven Texas
candidates did not involve those corporate contributions. Thus, the evidence fails to establish
that the transaction from RNSEC to the seven Texas candidates constituted money laundering
or conspiracy under either the “agreement” or “corporation” theory of criminal proceeds.
C. Transaction Two: TRMPAC’s Contribution to RNSEC
Changing our focus to TRMPAC’s transfer by check of the $190,000 from its soft
by Section 251.001(2) of the Election Code must be between the contributor and the recipient. There
is likewise no evidence in the record to show that any of the candidates was aware of TRMPAC’s
agreement with RNSEC. In light of our disposition, we need not resolve these questions today.
DeLay — 30
money account to RNSEC’s soft money account as the relevant money laundering event, we
must still conclude that the evidence was insufficient. It is true that, unlike the transfers from
RNSEC’s hard money account to the seven Texas candidates, this earlier transaction did
involve corporate political contributions that had been deposited into TRMPAC’s soft money
account. If these contributions were tainted because illegally made at the time TRMPAC
forwarded them to RNSEC, then the jury may yet have had a rational basis to convict the
appellant. For the reasons that follow, however, we ultimately reject the conclusion that the
transfer from TRMPAC to RNSEC involved tainted proceeds.
1. The “Agreement” Theory of Criminal Proceeds
The agreement between TRMPAC and RNSEC was already in existence by the time
the transaction occurred by which TRMPAC transferred $190,000 from its soft money
account to RNSEC’s soft money account. But, for the reasons we have already explained at
length, that agreement did not contemplate a transaction involving corporate contributions
at all, much less an illegal transfer of corporate contributions, since the agreement was for
RNSEC to make the contributions to the Texas candidates from its hard money account. The
proceeds were not criminally tainted on account of such an agreement. Therefore, conviction
cannot be sustained predicated on TRMPAC’s transfer of the money to RNSEC as the money
laundering event based on the State’s agreement theory of criminal proceeds. But the
proceeds may yet have been tainted by the time that transaction occurred if the corporate
DeLay — 31
contributions were illegally made at their inception, and we turn finally to that question.
2. The “Corporation” Theory of Criminal Proceeds
As we have already observed, there are actually two provisions in the Election Code
that serve to criminalize unauthorized corporate political contributions. On the one hand,
Section 253.094(a) prohibits political contributions by corporations that are “not authorized
by” Subchapter D of Chapter 253, with Section 253.094(c) designating such an offense a
third-degree felony.57 While Section 253.094 identifies no culpable mental state, neither does
it plainly dispense with one. Under Section 6.02(b) and (c) of the Texas Penal Code,
applicable to offenses defined outside of the Penal Code by virtue of Section 1.03(b), “intent,
knowledge, or recklessness suffices to establish criminal responsibility.”58 On the other
hand, a “person,” including a corporation,59 also commits the same level of felony (third
degree) if he “knowingly” makes a political contribution that violates Subchapter D of
Chapter 253, under Sections 253.003(a) and (e) of the Election Code. We do not think that
57
T EX. E LEC. C ODE § 253.094(a), (c).
58
See T EX. P ENAL C ODE § 1.03(b) (“The provisions of Titles 1, 2, and 3 [including Chapter 6]
apply to offenses defined by other laws, unless the statute defining the offense provides otherwise[.]”);
id. § 6.02(b) (“If the definition of an offense does not prescribe a culpable mental state, a culpable
mental state is nevertheless required unless the definition plainly dispenses with any mental element.”);
id. § 6.02(c) (“If the definition of an offense does not prescribe a culpable mental state, but one is
nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish
criminal responsibility.”).
59
See note 39, ante.
DeLay — 32
the legislature intended to create separately actionable offenses under Sections 253.094 and
253.003 of the Election Code. After all, it makes little sense to prohibit identical conduct in
separate statutory provisions that carry an identical range of punishment, one of which fails
to specify any culpable mental state at all but for which a culpable state is nevertheless
required (and for which mere recklessness will suffice), while the other must be committed
at least knowingly. The provision requiring knowledge would be rendered essentially
superfluous under this state of affairs, which means the Legislature would have accomplished
a useless thing, contrary to our usual interpretive assumption.60 To avoid this result, we shall
read the two provisions in pari materia, entertaining the “supposition that several statutes
relating to one subject are governed by one spirit and policy, and are intended to be
consistent and harmonious in their several parts and provisions.”61 Accordingly, we conclude
that the Legislature must have intended to identify only one third-degree felony offense of
making a corporate contribution in violation of Subchapter D of Chapter 253 of the Election
Code, and that, moreover, it must have intended that such an offense be committed
knowingly.
60
E.g., Garza v. State, 213 S.W.3d 338, 349 (Tex. Crim. App. 2007) (“We must presume that
‘in enacting a statute, the Legislature intends the entire statute to be effective[,]’ and did not intend a
useless thing.”) (quoting Heckert v. State, 612 S.W.2d 549, 552 (Tex. Crim. App. 1981)).
61
Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim. App. 2008) (quoting Cheney v. State, 755
S.W.2d 123, 126 (Tex. Crim. App. 1988)).
DeLay — 33
Here again, however, we are confronted with a statutory provision for which it is “not
at all clear how far down the sentence the word ‘knowingly’ is intended to travel[.]” 62 As
with the money laundering statute, we conclude that the Legislature intended that conviction
should depend upon proof of more than just the bare conduct (“make a political
contribution”), which (while it may be subject to state regulation, within First Amendment
boundaries) is not intrinsically condemnable. We hold that the State must also show that the
actor was actually aware of the existence of the particular circumstance surrounding that
conduct that renders it unlawful. Moreover, as written, Section 253.003(a) requires that the
actor be aware, not just of the particular circumstances that render his otherwise-innocuous
conduct unlawful, but also of the fact that undertaking the conduct under those circumstances
in fact constitutes a “violation of” the Election Code.63
We are keenly aware that the Texas Supreme Court has construed a similarly worded
provision of the Election Code differently. In Osterberg v. Peca,64 our sister Court was
called upon to interpret Section 253.131(a), authorizing civil damages for the making of
62
Liparota, 471 U.S. at 424 n.7 (quoting W. LaFave & A. Scott, C RIMINAL LAW § 27 (1972)).
63
T EX. E LEC. C ODE § 253.003(a). See McQueen, 781 S.W.2d at 604 (noting the requirement of
T EX. P ENAL C ODE § 1.02(4) that the Penal Code should be construed “to safeguard conduct that is
without guilt from condemnation as criminal” to hold that “some form of culpability must apply to
those ‘conduct elements’ which make the overall conduct criminal”).
64
12 S.W.3d 31 (Tex. 2000).
DeLay — 34
campaign contributions and expenditures that violate Chapter 253.65 There, as here, the
question was whether the word “knowingly” in the statute modified merely the making of a
campaign contribution, or whether it also modified the statutory circumstance that the
contribution was made “in violation of” the Election Code.66 The majority concluded that
“knowingly” should be read to modify only the conduct, not the attendant circumstance,
pointing to language from other Election Code provisions, including Section 253.003(b),67
that are more explicit in assigning a mens rea to the circumstance surrounding conduct, as
an indication of such a legislative intent.68 Here, however, we are construing a criminal
provision, not a civil one. Moreover, it is a penal provision that appears outside of the Penal
Code itself, and in construing penal provisions that appear outside the Penal Code, we have
65
See T EX. E LEC. C ODE § 253.131(a) (“A person who knowingly makes or accepts a campaign
contribution or makes a campaign expenditure in violation of this chapter is liable for damages as
provided by this section.”).
66
Osterberg, 12 S.W.3d at 37-39.
67
See T EX. E LEC. C ODE § 253.003(b) (“A person may not knowingly accept a political
contribution the person knows to have been made in violation of this chapter.”) (emphasis added).
68
Osterberg, 12 S.W.3d at 37-39. Four justices dissented, observing that “[t]he Court says
‘knowingly’ [in Section 253.131(a)] modifies only the act of spending money. But spending money
on core First Amendment speech cannot, in and of itself, be against the law—there has to be something
more.” Id. at 67 (Enoch., J., dissenting). Later, the dissenters continued: “And while it may be
‘natural’ to give the statute the reading the Court does today, it is no less ‘natural,’ and indeed it is
grammatically sound, to take the Constitution into account and construe ‘knowingly’ to modify the
entire succeeding phrase, including ‘in violation of [the Election Code].’” Id. at 68.
 DeLay — 35
recognized that the rule of lenity applies,69 requiring “that ambiguity concerning the ambit
of criminal statutes should be resolved in favor of lenity.”70 And indeed, even when
construing provisions within the Penal Code, we have typically resolved ambiguities with
respect to the scope of the applicable mens rea in favor of making sure that mental
culpability extends to the particular circumstance that renders otherwise innocuous conduct
criminal.71 That the Legislature may have more explicitly assigned mental culpability to
attendant circumstances in neighboring statutory provisions does not eliminate the patent
ambiguity from Section 253.003(a) itself. Nor does it absolve us of the duty to ascribe a
culpable mental state to the particular “statutory elements that criminalize otherwise innocent
conduct.” 72
The State is correct to contend that there is evidence in the record from which the jury
could rationally have inferred that the corporations that contributed to TRMPAC were aware
69
See, e.g., State v. Johnson, 219 S.W.3d 386, 388 (Tex. Crim. App. 2007) (“We are mindful
of the proposition that criminal statutes outside the penal code must be construed strictly, with any
doubt resolved in favor of the accused.”); State v. Rhine, 297 S.W.3d 301, 309 (Tex. Crim. App.
2009) (“Although the common-law rule that a penal statute is to be strictly enforced does not apply
to the Penal Code [citing T EX. P ENAL C ODE § 1.05(a)], criminal statutes outside the penal code must
be construed strictly, with any doubt resolved in favor of the accused.”) (footnote and internal
quotation marks omitted).
70
Liparota, 471 U.S. at 427 (internal quotation marks omitted).
71
McQueen, 781 S.W.2d at 603-04.
72
X-Citement Video, Inc., 513 U.S. at 72.
DeLay — 36
that TRMPAC was determined to find a way to steer those contributions to the campaign
coffers of specific candidates. The fund-raising literature at the very least encouraged the
corporations to assume as much, and there was some testimony suggesting that RoBold,
TRMPAC’s corporate fund-raiser, may have not have disabused them of this notion,
notwithstanding his denials.73 But nothing in the record shows that anyone associated with
the contributing corporations actually realized that to make a political contribution under
these circumstances would in fact violate Section 253.003(a) (or any other provision) of the
Texas Election Code. Only one of the testifying corporate executives evinced any such
knowledge, and he represented one of the corporations, Philip Morris, that expressly
designated that its contributions be put exclusively to the purpose of administering TRMPAC
itself, so that its contribution was lawfully made. Every corporate executive who was
73
RoBold testified he told the corporations only “that there is an opportunity to give corporate
funds that would be utilized to help underwrite the administrative expense of TRMPAC who is also
raising personal funds[,]” the personal funds, in turn, presumably for the purpose of making direct
contributions to candidates. He would “normally make [it] very clear” that corporate donations would
only be used for TRMPAC’s administrative costs, to free up individual donations for candidate
contributions. He acknowledged that the fund-raising literature emphasized TRMPAC’s priority to
channel contributions to candidates, but pointed out that this literature was directed at both corporate
and individual contributors. He flatly denied ever having personally “hinted” to corporate donors that
their contributions were “going to go to candidates.” But some of the corporate executives denied that
(or simply did not remember whether) RoBold expressly told them that their contributions would be
limited to defraying TRMPAC’s administrative costs. The corporate executive for Sears testified that
RoBold did not tell him his corporate contribution could only be put to a limited use but in fact told
him instead that it would be used “[t]o elect more Republicans to Congress in Texas.” In its pretrial
diversion agreement with the Travis County District Attorney, Sears claimed to have made its
corporate “contribution on the basis of false and misleading information provided by the fundraiser
that solicited the contribution[.]”
DeLay — 37
specifically asked vehemently denied any intention to violate Texas law,74 and the State
produced no evidence that any of them was actually cognizant of any illegality. The State
argues that the jury was entitled to discredit these corporate disavowals of illegal intent. That
may be the case, but there remains an utter lack of circumstantial evidence—evidence, for
example, of covert dealings or the wholesale failure to vet the contributions through in-house
corporate counsel—from which a jury might rationally infer corporate knowledge of actual
unlawfulness. While the corporate contributors may have had enough information about
TRMPAC’s apparent intentions from the fund-raising literature that they were, or ought to
have been, aware of a substantial and unjustifiable risk that their corporate contributions
would violate the Texas Election Code,75 neither recklessness nor negligence serves to
74
For example, notwithstanding Sears’s pretrial diversion agreement with the District Attorney,
the Sears executive maintained:
A. I never thought I did anything illegal.
Q. Still don’t?
A. Right.
Q. And if RoBold said it was a -- it was legal, you believed him and you still
believe him, right?
A. Well, I -- I don’t know about that. I believed it was legal at the time. I
certainly did and I would never intentionally violate a campaign law at any level.
75
See T EX. P ENAL C ODE § 6.03(c) (“A person acts recklessly, or is reckless, with respect to
circumstances surrounding his conduct . . . when he is aware of but consciously disregards a substantial
and unjustifiable risk that the circumstances exist[.]”); id. § 6.03(d) (“A person acts with criminal
negligence, or is criminally negligent, with respect to circumstances surrounding his conduct . . . when
DeLay — 38
establish an offense under Section 253.003(a). On this state of the record, we cannot
conclude that, at the time that TRMPAC transferred those corporate contributions from its
soft money account to RNSEC’s soft money account, the contributions were tainted because
the corporations had made them with the awareness that to do so under the circumstances
constituted a violation of Chapter 253.003(a) of the Election Code. Because the State has
failed to prove that the corporate contributors harbored the requisite mens rea to establish an
offense under the Election Code, we agree with the court of appeals that it has not established
that the money conveyed by TRMPAC to RNSEC constituted the proceeds of criminal
activity for purposes of money laundering or conspiracy to commit money laundering.
III. CONCLUSION
For these reasons, we agree with the court of appeals that, as a matter of law, the State
failed to prove facts to establish that the appellant committed either the object offense of
money laundering or the inchoate offense of conspiracy to commit the same. Accordingly,
we affirm the judgment of the court of appeals.
DELIVERED: October 1, 2014
PUBLISH
he ought to be aware of a substantial and unjustifiable risk that the circumstances exist[.]”).