DELAY v. STATE (2014)

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 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 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 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 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, 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 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 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-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, 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 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 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

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 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 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 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

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 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 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 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 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 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” 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.

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 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.

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 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 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

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 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 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 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.

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 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 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 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 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 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.

CONCURRING OPINION

As I read the indictment against appellant, he was charged in count I with conspiring with his co-defendants to “knowingly mak[e] a political contribution” in violation of the Election Code. Count II alleged that he “did knowingly conduct, supervise, and facilitate a transaction involving the proceeds of criminal activity ․ to wit, ․ knowingly making a political contribution” in violation of the Election Code. Thus the state had to prove for count II that the contribution made by TRMPAC to RNSEC violated the Election Code, that appellant was active in the process, and that he knew that the process violated the Election Code. If the contribution did not violate the Election Code, count II failed, as did count I because it is not a crime to conspire to do a legal act.

There is some evidence that appellant was aware of the transfer—knowledge claimed to be acquired after the fact—but none that he was directly involved. The soft money from TRMPAC went into RNSEC's soft-money account. Because it came from TRMPAC's soft-money account and went into RNSEC's soft-money account, the beliefs and intents of the corporate executives became irrelevant; corporate money, regardless of the donor's actual intent, went into the corporate-money account. The money sent by RNSEC directly to Texas candidates came, as is required by law, from its hard-money account. Like some of Goldman Sachs's dealings with a Spanish bank, the wheeling and dealing was a tad shady, but legal.

DISSENTING OPINION

You can always tell when an opinion is written with the outcome decided before any legal analysis is done because it reads like a medical report written by a doctor who has never conducted a physical examination of the patient. This is precisely how the court of appeals' opinion in this case comes across. The court of appeals concluded the evidence to be insufficient to sustain Appellant's conviction but directly misapplied the sufficiency of the evidence standards. See DeLay v. State, 410 S.W.3d 902 (Tex.App.-Austin 2013, pet. granted). In his dissent, Justice Jones aptly points out all of the correct criteria for sufficiency that was completely ignored by the majority. Id. at 917–19 (Jones, J ., dissenting). Due to this misdiagnosis by the court of appeals, the State had to file a petition for discretionary review in our Court.

At oral argument before our Court, the State presented an accurate and clear rendition of how the sufficiency analysis should have been conducted in this case and how it would have indicated that Appellant's conviction was proper. Soon thereafter, however, counsel for Appellant was quick to set this court straight on what we really needed to do, stating:

There is a fine line between prosecution and persecution that was crossed, and has been crossed, and continues to be crossed over the past decade when a prosecutorial posse essentially does what it has to do to manufacture an illegal act out of a series of legal ones ․ When the third court shut the State down last September, in an equally bankrupt maneuver, concluding that the evidence was legally insufficient that Tom DeLay was guilty of money laundering and conspiracy. And when this Court does what the law requires, to affirm the ultimate decision of the third court of appeals, it will do what needs to be done. And that is to shut down, once and for all, this decade long quest of manufacturing an illegal act out of a series of legal ones.

Based upon these marching orders, the majority has followed Appellant's instructions and crafted an opinion which is just as deficient in its analysis as the one from the court of appeals.

The majority in this case has changed the law and ignored the facts in order to arrive at a desired outcome, as it has done before. See Baird v. State, 398 S.W.3d 220 (Tex.Crim.App.2013)¹ ; Wehrenberg v. State, 416 S.W.3d 458 (Tex.Crim.App.2013)² . To hold, for the first time, that Section 253.003(a) of the Election Code requires the actor to be aware that his actions constitute a violation of the Texas Election Code completely neuters this crime. It places a burden on the State that is impossible to overcome. How does the State gather enough evidence to prove that the corporation knew the actions violated the Election Code? What constitutes enough evidence to show knowledge? Which person in the corporation will be charged with the knowledge of the entire corporation? In addition to placing this ridiculous burden on the State, which effectively repeals the statute, this holding also allows corporations who simply cannot be bothered to look up the law to get away with making illegal contributions. When faced with a similar question in Osterberg v. Peca, 12 S.W.3d 31 (Tex.2000), the Texas Supreme Court came out on the other side, holding that “knowingly” modified only the conduct of the offense rather than the attendant circumstance, as the majority should have held here. In fact, even though the burden in its civil cases is far less than “beyond a reasonable doubt,” the Texas Supreme Court still did not believe that knowledge of illegality was an element of the offense. Further, it should be noted that Section 253.003(b), the provision that immediately follows the one at question here, states that “A person may not knowingly accept a political contribution the person knows to have been made in violation of this chapter.” There, the Legislature specifically identifies that the actor must know of the illegality. In the provision that immediately precedes it, however, the Legislature makes no such clarification. If the Legislature intended what the majority now holds, it would have worded the provision in the same way it did Section 253.003(b): a person may not knowingly make a political contribution the person knows to be in violation of this chapter. The reality here is that the majority is eager to keep Appellant from going to prison, and, as a result, it has done one better than what the appellant's attorney even asked for.

When you consider the elements of this crime as they should be, without the new addition of knowledge of illegality, the State presented sufficient evidence to support the conviction. Given that the evidence presented indicates that TRMPAC conveyed to the corporations that their donations would be used for individual campaigns, a rational juror could have concluded that the corporations made the donations with the intent that the money go to candidates. This means that the jury could rationally decide that the initial donations violated the law and were, therefore, proceeds of criminal activity.

Although the majority agrees that there was evidence that the corporations knew the donations would go to candidates, it concludes that this is not enough to affirm the conviction because the State also needed to prove the corporations actually knew their contributions would violate the Texas Election Code. This holding is incorrect, and in crafting an opinion to suit only the majority's desired outcome for this case, it has changed the law, which leaves unfortunate and lasting effects on our jurisprudence, as is illustrated by Baird and Wehrenberg. The result of this particular case is that a corporation may now make election donations with immunity, since the State would never be able to prove it did not actually know the contribution violated the law. Because I would hold that knowledge of illegality is not an element of the crime, and that a rational jury could have found the essential elements of the crime charged beyond a reasonable doubt, as the rational jury in the case did, I respectfully dissent.

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PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

JOHNSON, J., filed a concurring opinion in which COCHRAN, J., joined. MEYERS, J., filed a dissenting opinion.