Doyle, Sybil Lea

PD-0321-16

In The Court of Criminal Appeals
SYBIL LEA DOYLE,
Petitioner/Appellant,
v.

STATE OF TEXAS,
Respondent/Appellee,
On Petition for Discretionary Review from the Ninth Court of Appeals,
Beaumont, Texas, No. 09-14-00458-CR

PETITION FOR DISCRETIONARY
REVIEW
CASEY LAW OFFICE, P.C.
Stephen D. Casey Oral Argument
State Bar No. 24065015 Requested
stephen@caseylawoffice.us
595 Round Rock West Drive, Suite 102
Round Rock, Texas 78681

June 13, 2016 June 13, 2016

1
 IDENTITIES OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judge: Hon. John Stevens, 359th District Court

Petitioner/Appellant: Sybil Lea Doyle

Counsel for Pet/App: Stephen Casey
CASEY LAW OFFICE, P.C.
info@caseylawoffice.us
595 Round Rock West Drive, Suite 102
Round Rock, Texas 78681
Phone: (512) 257-1324
Fax: (512) 853-4098

Respondent/Appellee: State of Texas

Counsel for Respondents: David Glickler
Jonathan White
ATTORNEY GENERAL OF TEXAS
jonathan.white@texasattorneygeneral.gov
P.O. Box 12548
Austin, TX 78711
Phone: (512) 475-2547
Fax: (512) 370-9723

Court of Appeals: Ninth Court of Appeals, Beaumont
Panel: Steve McKeithen, C.J., Hollis Horton
and Leanne Johnson, JJ.

2
 TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................................................................... 6
STATEMENT REGARDING ORAL ARGUMENT ........................................................... 8
STATEMENT OF THE CASE ........................................................................................ 9
STATEMENT OF PROCEDURAL HISTORY ................................................................ 10
GROUNDS FOR REVIEW .......................................................................................... 11

I. The Court of Appeals Failed to Accord Federal
Constitutional Protection When It Addressed Vagueness,
Particularly When It Omitted Texas Election Code §
1.015(b) from Its Analysis. (TEX. R. APP. P. 66.3(b), (c),
(d)). ...................................................................................................... 11

II. The State relied upon plainly perjured, and
“manufactured” testimony of Richard McDuffee for each
criminal trial in this episode, testimony that changed and
got “better” for the prosecution with each trial, violating
Doyle’s due process rights and unacceptable as a matter
of law. (TEX. R. APP. P. 66.3(f)). ......................................................... 11

III. The Court of Appeals had no discretion to refuse judicial
notice when Texas Rule of Evidence 201(c)(2) requires it to
take judicial notice when “supplied with the necessary
information.” (TEX. R. APP. P. 66.3(a))............................................... 11

IV. This Court can take judicial notice of the official public
records, including (1) the “Gaultney” letter, and (2) the
records ignored by the court of appeals and based on
those records and the other evidence, GRANT the
petition. ............................................................................................... 11

Standard for Legal Insufficiency ................................................................... 11
Standard for Directed Verdicts .................................................................... 12
Standard for Perjured Testimony ................................................................. 12

ARGUMENT ............................................................................................................. 12

3
1. The Court of Appeals Failed to Accord Federal
Constitutional Protection When It Addressed Vagueness,
Particularly When It Omitted Texas Election Code
§ 1.015(b) from Its Analysis................................................................. 12

A. Section 1.015(b) critically incorporates unavoidable
case law definitions within the context of
interpreting “residence,” making the criminal
analysis vaguely circular and thus unconstitutional. ................ 14

B. Likewise, the remaining sections that attempt to
define “temporary” and “purpose” leave wide—
and unconstitutional—discretion to law
enforcement, judges, and juries, making it a
political bully club as happened here. .......................................... 16

C. Even the learned branches of Texas government
cannot fully define “residence,” which makes it an
inappropriate standard for criminal notice and
conviction. ................................................................................ 19

2. The State relied upon plainly perjured, and
“manufactured” testimony of Richard McDuffee for this
trial, testimony that changed and got “better” for the
prosecution from the earlier Jenkins and Heath trials,
violating Doyle’s due process rights and unacceptable as
a matter of law. ................................................................................... 20

A. As a baseline, McDuffee testified in two earlier
criminal cases from this same episode that he had
no doubt on the day he voted that his vote was
legal. ......................................................................................... 21

B. Later, after gearing up for the Doyle trial,
McDuffee changed his testimony and perjured
himself to aid in a conviction. .................................................. 23

3. The Court of Appeals had no discretion to refuse judicial
notice of 193 voting records in which people didn’t “vote
where they live,” when under Texas Rule of Evidence

4
 201(c)(2) the court “must” take judicial notice. .................................. 26

A. Contrary to the Court of Appeals’ reluctance, it
must take notice of the facts provided. ..................................... 26

B. The records serve under Rule 201 for proof of the
federal constitutional challenge, a non-jury issue
for which notice of 193 non-residential voting
registrations demonstrate the very constitutional
danger of arbitrary enforcement and selective
prosecution the Constitution’s Due Process clause
prohibits. .................................................................................. 27

4. This Court should take judicial notice of both (1) the
“Gaultney letter,” and (2) the public records
demonstrating selective prosecution that are critical in
supporting the vagueness challenge.................................................... 28

A. Inherent to Petitioner’s “mistake of law” defense is
the “Gaultney letter,” an official public record
from the Montgomery County Voter Registrar
Carol Gaultney, which expressly certified Doyle
and others to vote from the Six Pines location. This
Court should take judicial notice of this letter. ........................ 28

B. The official public records of Montgomery County
demonstrate this case is all about a public political
vendetta and not following the law, regardless of its
constitutional infirmity. ............................................................ 29

CONCLUSION .......................................................................................................... 29
PRAYER FOR RELIEF ................................................................................................ 29
CERTIFICATE OF COMPLIANCE ............................................................................... 31
CERTIFICATE OF SERVICE ....................................................................................... 32

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 INDEX OF AUTHORITIES

CASES
Allen v. State,
249 S.W.3d 680 (Tex. App.—Austin 2008).................................................. 10

Anderson v. Celebrezze,
460 U.S. 780 (1983) ...................................................................................... 18

Coury v. Prot,
85 F.3d 244 (5th Cir. 1996) .......................................................................... 17

Ex parte Weinstein,
421 S.W.3d 656 (Tex. Crim. App. 2014) ............................................... 11, 20

Gonzales v. State,
723 S.W.2d 746 (Tex. Crim. App. 1987) ..................................................... 26

Grayned v. City of Rockford,
408 U.S. 104 (1972) ...................................................................................... 28

Long v. State,
931 S.W.2d 285 (Tex. Crim. App. 1996) ..................................................... 18

Louis v. State,
159 S.W.3d 236 (Tex. App.—Beaumont 2005, pet. ref'd) ..................... 11, 20

Mills v. Bartlett,
377 S.W.2d 636 (Tex. 1964) ................................................................... 15, 19

Papachristou v. City of Jacksonville,
405 U.S. 156 (1972) ...................................................................................... 13

Pittman v. State,
144 S.W.2d 569 (Tex. Crim. App. 1940) ..................................................... 11

Skelton v. State,
795 S.W.2d 162 (Tex. Crim. App. 1989) ..................................................... 11

6
State v. Westergren,
707 S.W.2d 260 (Tex. App.—Corpus Christi 1986) .................................... 11

Texas Highway Dept. v. Kimble County,
239 S.W.2d 831 (Tex. Civ. App.—Austin 1951, writ ref’d n.r.e.) ................ 17

United States v. Cardiff,
344 U.S. 174 (1952) ...................................................................................... 13

United States v. Laub,
385 U.S. 475 (1967) ...................................................................................... 16

STATUTES
Texas Election Code 1.105(b) ................................................................................. 14

RULES
Texas Rule of Evidence 201(d) ............................................................................... 26

BOOKS
Lewis Carroll, Through the Looking Glass (1871). ........................................................ 12

7
 STATEMENT REGARDING ORAL ARGUMENT

This case involves critical constitutional protections as well as interpretation

of the Texas Election Code and the interplay between civil law opinions and state

agency opinions written on the Texas Election Code and their interpretation

within the context of a criminal case. It appears to be a matter of first impression.

Oral argument would benefit the Court.

8
 STATEMENT OF THE CASE

Nature of the case A Montgomery County resident changed her
voter location to a motel address. She was
prosecuted for voter fraud, alleging to have
violated the residency requirement.

After a jury trial, she was found guilty and
sentenced to probation. Tab A

Trial Court John Stevens, 359th District Court
Montgomery County

Court of Appeals Beaumont

CA Disposition Affirmed

Opinion Horton, J., joined by Steve McKeithen, C.J., and
Johnson, J. Tab B

9
 STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals opinion was issued on March 9, 2016. No motion for

rehearing was filed.

10
 GROUNDS FOR REVIEW

This Court should grant review for three independent bases, including, but

not limited to, the guidance of Texas Rule of Appellate Procedure 66.3)(a), (b), (c),

(d), and (f).

I. The Court of Appeals Failed to Accord Federal Constitutional
Protection When It Addressed Vagueness, Particularly When It
Omitted Texas Election Code § 1.015(b) from Its Analysis. (TEX.
R. APP. P. 66.3(b), (c), (d)).

II. The State brazenly relied upon perjured testimony of Richard
McDuffee for each criminal trial in this episode, testimony that
changed and got “better” for the prosecution with each
successive trial, violating Doyle’s due process rights and
unacceptable as a matter of law. The lower court wholly avoided
addressing this point of error. (TEX. R. APP. P. 66.3(f)).

III. The court of appeals had no discretion to refuse judicial notice
when Texas Rule of Evidence 201(c)(2) requires it to take judicial
notice when “supplied with the necessary information.” (TEX. R.
APP. P. 66.3(a)).

IV. This Court can take judicial notice of the official public records,
including (1) the “Gaultney” letter, and (2) the records ignored
by the court of appeals and based on those records and the other
evidence, GRANT the petition.

Standard of Review

Standard for Legal Insufficiency
The reasonable doubt standard requires a high threshold of proof. A case

will be reversed for lack of legal sufficiency when it is irrational or “unsupported by

11
proof beyond a reasonable doubt.” Allen v. State, 249 S.W.3d 680, 703 (Tex.

App.—Austin 2008) (emphasis added). If circumstantial evidence provides no more

than a suspicion, the jury is not permitted to reach a speculative conclusion. Louis v.

State, 159 S.W.3d 236, 246 (Tex. App.—Beaumont 2005, pet. ref'd). Appellate

review functions to prevent convictions not based on proof “beyond a reasonable

doubt.” Skelton v. State, 795 S.W.2d 162, 167 (Tex. Crim. App. 1989). “When the

verdict is against the uncontroverted testimony, it is [the court’s] solemn duty to set

it aside.” Pittman v. State, 144 S.W.2d 569, 569 (Tex. Crim. App. 1940)

Standard for Directed Verdicts

The trial court’s denial of a directed verdict is reviewed on an abuse of

discretion. State v. Westergren, 707 S.W.2d 260, 262 (Tex. App.—Corpus Christi

1986).

Standard for Perjured Testimony

The standard of review for perjured testimony is deferential unless the

reviewing court finds the conclusions of the fact finder not supported by the record.

Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014).

ARGUMENT

1. The Court of Appeals Omitted Texas Election Code § 1.015(b)
from Its Analysis, a Required Step to Address Petitioner’s
Federal Constitutional Due Process Rights Under Her Vagueness
Challenge.

12
 The criminal law requires the same laws to apply across the board, whether

one is rich, poor, popular, or infamous. Here, the State followed the selective

bidding of local political actors to prosecute Doyle and others, unfortunate political

underdogs in a local election, and employed the vagueness of “residence” in the

Texas Election Code, based on the State’s mantra “vote where you live,” to

accomplish the bidding of the local political victors.1

The lower decisions do not comport with the plain language of the Texas

Election Code, and were selectively enforced based on the State’s own “private”

meaning, one not present in the law.2

1 “Vote where you live,” the State repeated ad nauseum within the criminal trial. 4RR.18 ln 6, ln 7
(State’s opening statement); 5RR.117 ln 25 (McDuffee); 5RR190 ln 6 (Goeddertz); 5RR195 ln
18-19 (Goeddertz); 6RR.40 ln 19 – 6RR.42 ln 7 (Heath); 6RR.88 ll 14-17 (Doyle); 6RR.89 ll 23-
24 (same); 6RR.102 ll 14-17 (S. Doyle); 6RR.124 ln 11, 125 ln 1, 144 ll 4, 6, 146 ln 14, (State’s
closing argument).
2 Just like Humpty Dumpty in Lewis Carroll’s Through the Looking Glass, when a word is defined

according to idiosyncratic, private definitions, there is no agreement.

‘I don’t know what you mean by “glory”,’ Alice said.
Humpty Dumpty smiled contemptuously. ‘Of course you don’t — till I tell you. I
meant “there’s a nice knock-down argument for you!”’
‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.
‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means
just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many
different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

Lewis Carroll, Through the Looking Glass (1871).

Carroll is addressing the fallacy of equivocation, to be sure. When the State at trial, and the
lower Court of Appeals opinion, fails to address that a significant body of court cases have
permanently altered the meaning of “residence,” those alterations make the the term “residence”

13
 A. Section 1.015(b) critically incorporates unavoidable case
law definitions within the context of interpreting
“residence,” making the criminal analysis vaguely
circular and thus unconstitutional.

In a court of law that depends on critically sound definitions of criminal

activity, the definition of “residence” is fluid and vague, unacceptable under

constitutional scrutiny. “The vice of vagueness in criminal statutes is the treachery

they conceal either in determining what persons are included or what acts are

prohibited.” United States v. Cardiff, 344 U.S. 174, 176 (1952). “Words which are

vague and fluid . . . may be as much of a trap for the innocent as the ancient laws

of Caligula.” Id.

“A vague law impermissibly delegates basic policy matters to policemen,

judges, and juries for resolution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discriminatory application.” Grayned v. City of

Rockford, 408 U.S. 104, 108-109 (U.S. 1972) (emphasis added). For example, in

Papachristou v. City of Jacksonville, 405 U.S. 156, 163 (1972), the Supreme Court

reviewed the history of laws against “vagrancy,” determining that the many

conflicting factual determinations that may underlie identifying vagrancy led to an

unconstitutional vagueness based on the failure of Florida’s statutes to

properly define “vagrancy.” Id. at 161-171. The law’s unconstitutional nature

resulted in it casting too broad a net (capturing offenders with various reasons for

unsuitable for the criminal prosecution in this case and thus constitutionally infirm.

14
lack of employment—from those with independent wealth who had no need of

work to those whose lack of employment fostered criminal activity or was the result

of criminal activity). There is a similar failure of the Texas statute to properly

define “residence.”

The lower court failed to mention, even once, Texas Election Code 1.105(b).

See TEX. ELEC. CODE § 1.105(b) (“Residence shall be determined in accordance

with the common-law rules, as enunciated by the courts of this state, except as

otherwise provided by this code.”).

As stated in Petitioner’s brief below, “is it the Code, which is supposed to

trump the common law and legal opinions, or the common law and legal opinions

which are supposed to interpret the Code, which is supposed to trump the common

law and legal opinions . . . (ad infinitum). Where does the circular reasoning stop?”

Br. App. at 24.

The seminal case on “residence” should be dispositive of this question in

Petitioner’s favor:

The term “residence” is an elastic one and is extremely difficult to
define. The meaning that must be given to it depends upon the
circumstances surrounding the person involved and largely depends
upon the present intention of the individual. Volition, intention and
action are all elements to be considered in determining where a
person resides and such elements are equally pertinent in denoting the
permanent residence or domicile.

Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964) (importantly, the word

15
“permanent” has since been removed).

Further, the Mills Court stated, “Neither bodily presence alone nor intention

alone will suffice to create the residence, but when the two coincide at that

moment the residence is fixed and determined. There is no specific

length of time for the bodily presence to continue.” Id. This demonstrates

the vagueness of the statute in practice.

In fact, one of the best points is made by the lower court but the wrong

conclusion is drawn. In attempting to distinguish between Mills v. Bartlett and this

situation, the lower court emphasizes that several elements come into consideration

to determine residence. This “elastic”—in Mills terms—process, if unable to be

precise in a civil setting, is fundamentally wrong to employ in a criminal setting. By

distinguishing Mills, the lower court proves the very point of Petitioner: if the law is

too vague in a civil setting, how can it possible pass constitutional muster in a

criminal setting.

Criminal statutes should not be elastic nor extremely difficult to define.

Because “residence” is so elastic and extremely difficult to define, even in a civil

setting where the target is a preponderance, it is certainly infirm as a basis for

criminal prosecution where the high threshold is beyond a reasonable doubt. To

prohibit selective prosecution on vague laws, this Court should GRANT review.

B. Likewise, the remaining sections that attempt to
define “temporary” and “purpose” leave wide—and

16
 unconstitutional—discretion to law enforcement, judges,
and juries, making it a political billy club as happened here.

The United State Supreme Court’s warning against leaving determination of

criminal standards to juries raises another powerful bulwark against the

proceedings below:

It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Vague laws offend
several important values. First, because we assume that man is free to
steer between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory
application.”

Grayned, 408 U.S. at 108-109 (emphasis added).

Thus, “[c]rimes are not to be created by inference.” United States v. Laub, 385

U.S. 475, 487, 17 L. Ed. 2d 526 (1967).

This criminal prosecution here, as pointed out by the lower court, focused

on political underdogs who lost an earlier civil contest over the validity of their

votes. See Slip Op. at 3-4. It remains axiomatic that a person cannot know

her actions violate the law when the legality of her claimed residence is

not established until a civil trial determines that the defendant is not a

resident of the location from which she chose to vote.

17
 Subsequent to that civil trial, Doyle, one of the now unpopular defendants,

became the subject of this case. Is it any question that a jury should not be deciding

her criminal fate on an unpopular matter that took an entire civil case to determine

was/was not valid? If it took a judge and jury to determine validity, how could

Doyle possibly be expected to know sua sponte that her behavior was criminal?

Furthermore, “domicile” may include where a person exercises civil and

political rights. See Coury v. Prot, 85 F.3d 244, 251 (5th Cir. 1996). The Austin Court

of Appeals stated that a person may have more than one residence at any given

time. See Texas Highway Dept. v. Kimble County, 239 S.W.2d 831, 832 (Tex. Civ.

App.—Austin 1951, writ ref’d n.r.e.).

The Supreme Court of the United States and this Court have strongly

protected citizens in three respects when First Amendment freedoms such as voting

are in jeopardy of criminal punishment: (1) a person of ordinary intelligence must

be given a reasonable opportunity to know what is prohibited; (2) the law must

establish determinate guidelines for law enforcement; and (3) where First

Amendment freedoms are implicated, the law must be sufficiently definite to avoid

chilling protected expression. See Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294; Long v.

State, 931 S.W.2d 285, 287 (Tex. Crim. App. 1996); see generally Anderson v. Celebrezze,

460 U.S. 780 (1983) (voting as a constitutional matter implicates First Amendment

expression and association rights). As shown by the next section, even learned

18
attorneys for the State cannot succinctly define “residence” to avoid its

constitutional infirmity as a criminal standard, for which reason this Court should

GRANT review.

C. Even the learned branches of Texas government
cannot fully define “residence,” which makes it an
inappropriate standard for criminal notice and conviction.

In no less than fifteen (15) pages, former Texas Attorney General Greg

Abbott attempted to explain the definition of residency for purposes of voting. See

DX-3 (Texas Attorney General Opinion GA-0141). State’s counsel would have it

be a simple “vote where you live.” See n.1, supra. But even State counsel’s own

former boss disagrees. After providing Texas Election Code’s § 1.015 definition,

GA-0141 (DX-3 at trial) dives right into Mills v. Bartlett as an authoritative source

on how to “interpret” the concept of “residence” in the context of voter eligibility.

GA-0141 evaluates “residence” within the specific context of concern about

criminal culpability and the threat of prosecution for illegal voting. See DX-

3 at 1. And the Mills court certainly does not clear up the definition.

The term “residence” is an elastic one and is extremely difficult to
define. The meaning that must be given to it depends upon the
circumstances surrounding the person involved and largely depends
upon the present intention of the individual. Volition, intention and
action are all elements to be considered in determining where a
person resides and such elements are equally pertinent in denoting the
permanent residence or domicile.

Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964).

19
 Should the criminal laws and prosecutions in Texas be founded upon

“elastic” and “extremely difficult” concepts? Surely not. The analysis in Mills v.

Bartlett, cited by the Texas Attorney General, which is the seminal opinion in the

State of Texas (this headnote is cited sixteen (16) times for this proposition and

forty-two (42) times for its discussion of “residence,” generally), demands a fact-

intensive evaluation of competing interests. This ad hoc approach and idiosyncratic

analysis is exactly the framework rejected by the Supreme Court in Grayned and its

progeny. See Grayned, 408 U.S. at 108-09 (criminal laws must not be based on ad hoc,

subjective standards by policemen, judges, and juries).

2. The lower opinion wholly avoids the brazenly perjured testimony
of Richard McDuffee for this trial, testimony that changed and
got “better” for the prosecution from the earlier Jenkins and
Heath trials, violating Doyle’s due process rights and
unacceptable as a matter of law.

As Doyle’s intent was plainly at issue, the only two persons other than Doyle

and her witnesses to speak to her intent were James Stilwell, a RUD attorney who

had worked on the civil dispute, and Richard McDuffee, one of the RUD voters.

Admittedly, both Stilwell and McDuffee were engaging in speculation. Stilwell, a

clearly biased party, shed little objective light on the process, as his testimony

largely consisted of authentication of prosecution exhibits. McDuffee’s testimony,

on the other hand, while similarly speculative, was absolutely critical for the

prosecution. McDuffee, one of the ten new voters in the 2010 RUD election, took

20
the stand for the State in an attempt to show “knowledge by association,” basically

that because he believed he was ineligible to vote, that Petitioner must have also

known she was not eligible to vote.

In accordance with the standard of review, the jury is not allowed to

speculate but must prove the elements beyond a reasonable doubt. If circumstantial

evidence provides no more than a suspicion, the jury is not permitted to reach a

speculative conclusion. Louis v. State, 159 S.W.3d 236, 246 (Tex. App.—Beaumont

2005, pet. ref'd). When the jury has speculated and thus the verdict is not properly

supported, the reviewing court must throw out the conviction if based on perjured

testimony because it violates the rights to due process under the Fifth and

Fourteenth Amendments to the United States Constitution. Ex parte Weinstein, 421

S.W.3d 656, 664 (Tex. Crim. App. 2014). (“The State's use of material false

testimony violates a defendant's due-process rights under the Fifth and Fourteenth

Amendments to the United States Constitution.”) (emphasis in original). The

testimony not need be harmful, only material. Id. Here, the testimony was material.

A. As a baseline, McDuffee testified in two earlier
criminal cases from this same episode that he had no doubt
on the day he voted that his vote was legal.

This case provides a unique opportunity because McDuffee testified in two

other criminal trials involving this 2010 RUD election. McDuffee testified in Cause

No. 12-03-02580-CR, State of Texas v. Adrian Heath, that he boldly, succinctly, and

21
unequivocally stated that he did not believe he was committing a felony when he

went in and voted in the RUD election.

Q. (Defense counsel on cross-examination) Then did you believe you were
committing a felony when you went and cast that vote on May the 8th?

A. (McDuffee) No.

See Br. App. Appx., Tab D at 187 ll 17-19 (emphasis added).

In the trial of State of Texas v. Jim Jenkins, No. 12-03-02579, McDuffee’s

response was that he filled out his voter registration card with no concern, but felt

there was a “[d]anger” when he received a letter from the district attorney’s office,

but that the danger was “vague.” See Br. App. Appx., Tab B at 179 ln 19 - 181 ln

18. McDuffee also stated that the decision was made by each person in his own

mind, and that his meeting of the mind and presence established his residence. Id.

at 216 ln 3; 217 ln 2.

When pressed on cross-examination, McDuffee stated that the honest truth

was he did not know at the time he cast his ballot that he was voting illegally:

Q. (by Defense attorney) [O]n the day that you voted, you did not know that
[you were voting illegally], did you?

A. (by McDuffee) No.

Q. And that’s the honest truth, isn’t it?

A. That’s the honest truth.” (emphasis added).

Id. at 218 ll 13-25.

22
 B. Later, after gearing up for the Doyle trial, McDuffee
changed his testimony and perjured himself to aid in a
conviction.

Apparently not happy McDuffee’s testimony in the earlier Heath and Jenkins

cases, the State used McDuffee again in Doyle’s case, and McDuffee lied:

5RR143:

Q. (Walker) Did you know that you were casting an illegal vote at
that time?

A. (McDuffee) As I knew the voting rules at that time and from a
letter I received the district attorney warning of it, yeah, I was a little
apprehension [sic] when I went and signed that.

Q. Did you know that you were making an illegal vote? Is it your
opinion that you made an illegal vote today?

A. Today, yes. It was an illegal vote.

Q. Let's talk about on the day of the election. When you walked in
that voting booth, did you know that you were costing [sic] an illegal
vote?

A. I had a doubt, but I did not have a total knowledge of the law
saying yes or no. So I can't draw a definitive line.

Q. Would it be fair for me to say that your -- you had some
apprehension, but you did not know that you were casting an illegal
vote?

A. I had apprehension on voting. I cannot answer that positively on
yes or no.

Then, McDuffee changes his view.

23
5RR.147:

Q. So your statement, your testimony here today is that I knew I was
committing a crime, but I thought I could get away with that. Is that a good
summation?

A. It would fly under the radar, ten votes.

Next, when confronted prior to a break about his prior testimonies,

McDuffee feels the pressure of his lie and begins to complain about the weighing

out of the chances of being prosecuted and therefore equivocates again:

5RR.148

Q. Do you recall giving a different answer when asked if you knew
whether or not your vote on that day was illegal?

A. There's been several trials and the way I answer the question, is it
100 percent the way I say each trial? No. Do I -- I change the way I
word something. Is it illegal? I thought on the day of the vote, figured
it was maybe a 50/50 percent chance, toss the coin, more than likely it
was going to be maybe a nickel toss. Not going to be worth time and
effort. But it's blown up into this. So can I say I knew black and white
on that day, at that moment I went in that little building and signed
on a little piece of paper because they did not have a machine or
anything. It was the first time they had ever held an election. From the
time this RUD board had been in the existence, they had never had --
there was no residence in the district, so there was never any elections.

Then, again, after another break, and on more direct questions, McDuffee

again waffles, despite his Heath and Jenkins testimony, when attempting to answer

the question:

24
5RR.150

Okay. Do you recall testifying in previous hearings regarding this
case?

A. Yes.

Q. And we had an opportunity to review some of that testimony
before you -- during the break, correct?

A. Correct.

Q. And you don't contest the copy of the transcript I have as far as
accuracy?

A. No.

Q. Those were the questions asked of you and those were the answers
you used?

A. Correct.

Q. Did you ever give a different answer to those questions or similar
type questions when asked about your state of mind when you cast
that ballot?

A. The best I can remember, I never said that I thought it was totally
legal.

Q. Let me ask the converse of that. Did you ever think it was totally
illegal?

A. Only if I was the Defendant. It would be totally illegal. Does that
make sense? I mean -- I'm just saying.

25
 And then again McDuffee waffles:

5RR.157

Q. (By Mr. Walker) Okay. Prior to casting the vote, did you believe it was
legal to go forward?

A. 100 percent legal to go forward?

Q. I think that's kind of like being kind of pregnant. It's a yes-or-no question.
Something is legal or something is illegal. So the question, once again, is the
same as the question was before. Did you believe it was legal to go forward
prior to the election?

A. Again, I can't give you a cut and dry. My scenario today is unfortunately
back then at that time, I had another mind set and my answer was yes or no.
But it's a gray area.

This Court should not permit this criminal conviction based on Richard

McDuffee’s post hoc vicissitudes.

3. The Court of Appeals had no discretion to refuse judicial notice
of 193 voting records in which people didn’t “vote where they
live,” when under Texas Rule of Evidence 201(c)(2) the court
“must” take judicial notice.

A. Contrary to the Court of Appeals’ reluctance, it must take
notice of the facts provided.

Texas Rule of Evidence 201(d) states that judicial notice is “Mandatory” “if

requested by a party and supplied with the necessary information.” TEX. R. EVID.

201(d). Public government documents are subject to such notice. Gonzales v. State,

723 S.W.2d 746, 751 (Tex. Crim. App. 1987) (Judicial notice can be requested of a

26
fact when “its existence is so easily determinable with certainty from sources

considered reliable, it would not be good sense to require formal proof.”) (noticing

factual evidence of incorporation by city in support of arson indictment when it

was not presented in court).

The appellate court has zero discretion whether to take judicial notice when

it was requested by Petitioner and supplied with the necessary public documents.

B. The records serve under Rule 201 for proof of the federal
constitutional challenge, a non-jury issue for which notice of
193 non-residential voting registrations demonstrate the very
constitutional danger of arbitrary enforcement and selective
prosecution the Constitution’s Due Process clause prohibits.

Vague criminal laws endanger the public, the Grayned Court explained, by

“arbitrary and discriminatory application.” 408 U.S. at 109. One need look no

further than the Montgomery County Voter Records. Almost two-hundred (200)

people have registered to vote at commercial and government locations. Some

registrations even exist at the Montgomery County District Courthouse where this

criminal trial took place!

4. This Court should take judicial notice of both (1) the “Gaultney
letter,” and (2) the public records demonstrating selective
prosecution that are critical in supporting the vagueness
challenge.

A. Inherent to Petitioner’s “mistake of law” defense is the
“Gaultney letter,” an official public record from the
Montgomery County Voter Registrar Carol Gaultney, which
expressly certified Doyle and others to vote from the Six Pines
location. This Court should take judicial notice of this letter.

27
 Inherent to the state of mind of Petitioner is the “Gaultney letter,” an official

declaration by the Montgomery Count Voter Registrar, that Petitioner was eligible

to vote from the Residence Inn address. It is attached as Appendix C to this

petition.3 This is further information that shows the registration requirements as a

matter of law are vague. If the very person charged with telling voters they are not

eligible cannot but issue a certification to those voters telling them they are eligible,

how can the voter then not have a frame of mind of eligibility? Coupled with the

plainly perjured testimony of McDuffee, this fact pattern cries out for

reversal. This Court should GRANT the petition.

B. The official public records of Montgomery County
demonstrate this case is all about a public political vendetta
and not following the law, regardless of its constitutional
infirmity.

This Court is requested to take judicial notice of the 193 records supplied to

the Court of Appeals, Appellants’ Brief, Appendices F-J. This is the proof of

arbitrary and discriminatory application. They are publicly filed with the

Montgomery County Voter Registrar which is a source whose accuracy cannot

3 Appended to this brief as Appendix “C” is a “true and correct copy as taken from official
county records as of 10/29/2013” of the Certification of Voter Registration and the attachment
that listed Doyle as an eligible voter of the RUD prepared by Ms. Carol Gaultney, the Elections
Administrator/Voter Registrar for Montgomery County. This Court can take judicial notice of
this official record on appeal. See TEX. R. EVID. 201(f); Gonzales v. State, 723 S.W.2d 746, 751-52
(Tex. Crim. App. 1987). See Appendix “C.”

28
reasonably be questioned.4 Taking notice may be inconvenient, as it shows a

glaring “punishment” of Petitioner by the political powers that be; however,

protection of constitutional rights is rarely convenient. Given this level of arbitrary

enforcement, the curtain is “completely removed,” so to state, and the trial

proceeding is revealed to be a selective, politically-motivated, selective

prosecution.5 This Court should GRANT the petition.

CONCLUSION

This case exemplifies a policy debate clothed in the proceedings of a criminal

trial.6 The legislature’s subjective vagaries, evidenced across the state agencies’ and

courts’ varying interpretations, fail to offer a clear standard of behavior for

Petitioner, making this case an exemplar of constitutional infirmity. This Court

should GRANT review.

PRAYER FOR RELIEF

The petition should be granted, and the judgment should be reversed.

Respectfully submitted,

4 This Court can take judicial notice of these official public records on appeal. See TEX. R. EVID.
201(f); Gonzales v. State, 723 S.W.2d 746, 751-52 (Tex. Crim. App. 1987).
5 It is not conceded that these other 193 voters are in violation of any law; rather, the incredible

vagueness of the law serves the impermissible purposes that are warned about from the Texas
Supreme Court.
6 See Grayned, 408 U.S. at 108-109 (“A vague law impermissibly delegates basic policy matters to

policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application.”

29
CASEY LAW OFFICE, P.C.

By: /s/ Stephen Casey
Stephen Casey
State Bar No. 24065015
stephen@caseylawoffice.us
595 Round Rock West Drive, Suite 102
Round Rock, Texas 78681
Telephone: 512-257-1324
Fax: 512-853-4098

COUNSEL FOR PETITIONER/APPELLANT
SYBIL LEA DOYLE

30
 CERTIFICATE OF COMPLIANCE

The preceding brief contains 4,472 words within the sections identified
under Tex. R. App. P. 9.4, typed upon Microsoft Word for Mac 2011, Baskerville
14 point font.

/s/ Stephen Casey

31
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Petition for
Review and Appendix were served on Wednesday, April 20, 2016, on the following
via electronic transmission:
David Glickler
Jonathan White
Attorney General of Texas
jonathan.white@texasattorneygeneral.gov
P.O. Box 12548
Austin, TX 78711
Phone: (512) 475-2547
Fax: (512) 370-9723

/s/ Stephen Casey

32
APPENDIX TAB A – TRIAL COURT JUDGMENT

33
 ur
RECEIVED AND
OR RECORQ.g--'
.ttt_ O'Clock
-- .."

SID#: TX50021125
MAY 2 2 2011,
TRN#: 9151287846
DA#:121002.1
Plea of Guilty or Nolo-Jury Waived-Community Supervision

CAUSE NO. 12-03-02583-CR

THE STATE OF TEXAS § IN THE DISTRICT COURT OF

V. § MONTGOMERY COUNTY, TEXAS
3)5'17/-1
Sybil Lea Doyle § JUDICIAL DISTRICT

JUDGMENT AND ORDER

On MAY 22 ,2014, the above entitled and numbered cause wherein the Defendant is charged with
the felony offense ofILLEGAL VOTING, came to be heard. The State appeared by and through its
Assistant District Attorney, Johnathan White, and the Defendant, Sybil Lea Doyle, appeared both
in person and by counsel, Jarrod L. Walker, and both parties announced ready for trial. The
Defendant, in person and by and through her attorney, waived the right of trial by jury in writing; the
Assistant District Attorney approved and consented in writing to the waiver of a jury; and, the Court
approved and consented to same. The Defendant, having been duly arraigned, entered her plea of
Guilty. It appeared to the Court that the Defendant was mentally competent and that her plea was
free and voluntary. The Court admonished the Defendant as to the consequences of such plea and
the Defendant persisted in entering her plea of Guilty. Therefore, the Court accepted the Defendant's
plea.

The Court, having heard the Indictment read and the Defendant's plea thereto, postponed a finding
of guilt and ordered that a Pre-Sentence Investigation be conducted by the Community Supervision
and Corrections Department.

And, the Court on this date, MAY 22, 2014, after reviewing the evidence submitted and
determining that it was sufficient to show the guilt ofthe Defendant, and having considered the Pre-
Sentence Investigation Report and arguments of counsel, is of the opinion and, therefore, finds the
Defendant guilty of the offense as charged and that the offense was committed on May 08, 2010.

IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by this Court that
the Defendant is guilty ofthe offense ofILLEGAL VOTING and that said Defendant committed said
offense in Montgomery County, Texas on May 08, 2010, as charged in the Indictment, and that her
confinement in the Texas Department of Criminal Justice, Institutional
Division for 3. ears, and a fine of $5000, and that the State of Texas have and recover of
the Defendant all costs expended in this prosecution, for which let execution issue.

110
 CAUSE NO. 12-03-02583-CR
STATE OF TEXAS V. Sybil Lea Doyle

However, it appearing to the Court from the evidence that the ends of justice and the best interest
of the public as well as the Defendant will be served by the suspension of the imposition of sentence
herein;

IT IS THEREFORE CONSIDERED, 0imRED, ADJUDGED AND DECREED by the Court that
the imposition of sentence herein is he ended and that the Defendant is hereby placed on
community supervision for the period ears on the following terms and conditions, to-wit:

CONDITIONS OF COMMUNITY SUPERVISION

That during the term of community supervision the Defendant is hereby ORDERED to:

a. Commit no offense against the laws of this State or any other State or the United
States;
b. Avoid injurious or vicious habits;
c. Not use or consume alcohol or controlled substances;
d. Avoid persons and places of disreputable or harmful character;
e. Work faithfully at suitable employment as far as possible;
f. Support her dependents;
g. Remain within the limits of the State of Texas, unless given permission to leave
therefrom;
h. Report to her community supervision officer at the Montgomery County Community
Supervision and Corrections Department at least monthly and at all other times as
directed by her community supervision officer.
Should the community supervision of the Defendant be transferred to a
supervising department of another state, IT IS ORDERED that the Defendant shall
report in person to the supervising officer ofthat department at least monthly and at
all other times as directed by the supervising officer of that department. In addition,
the Defendant is ORDERED to report by mail to the Montgomery County
Community Supervision and Corrections Department at least monthly, and at all
other times as directed by her Montgomery County community supervision officer;
Should the community supervision of the Defendant be transferred to a
supervising department of another county of this state, IT IS ORDERED that the
Defendant shall report in person or by mail as directed by the Montgomery County
supervising officer to the Montgomery County Community Supervision and
Corrections Department at least monthly until such time as the Montgomery County
Community Supervision and Corrections Department receives notification of
acceptance by the county where the Defendant's community supervision is being
transferred. If the Defendant's community supervision is accepted by another county,
the Defendant is ORDERED to report in person to the supervising officer of that

-2-
Minute
Date:_ _ _ __ 111
 CAUSE NO. 12-03-02583-CR
STATE OF TEXAS V. Sybil Lea Doyle

department at least monthly and at all other times as directed by the supervising
officer of that department. Should the county not accept transfer of the Defendant's
community supervision, the Defendant is ORDERED to report in person to the
supervising officer of the Montgomery County Community Supervision and
Corrections Department at least monthly, and at all other times as directed by the
Defendant's Montgomery County community supervision officer;
i. Permit the community supervision officer to visit her at her home or elsewhere;
J. Submit to an alcohol and drug evaluation to determine the existence of a drug or
alcohol dependence condition, and to determine an appropriate course of conduct
necessary for the rehabilitation of the Defendant's drug or alcohol dependence. The
Defendant will attend the appropriate counseling prescribed by this evaluation at the
Defendant's expense;
k. (1) Submit to medical, chemical, or any other test or examinations for the purpose of
determining whether or not she is using or is under the influence of alcohol, narcotic
drugs, marijuana or any other controlled substances and pay all costs associated with
such tests and examinations. Detection of any controlled substance or alcohol shall
be construed as a violation of her community supervision;
(2) Not use any products, devices, or liquids to adulterate, dilute, mask or any way
alter a sample or give a false testing sample. Test results indicating diluted, masked
or altered samples will be presumed to be a "positive" test result that may result in
revocation of her community supervision;
1. Contribute 240 hours in community service restitution at an organization approved
by the Court and designated by the Community Supervision and Corrections
Department. Community restitution is ORDERED to be performed at the rate of
hours per month beginning JUNE,
m. Enroll in and complete the G .E.D. preparatory course as directed by her community
supervision officer if Defendant does not possess a minimum of a G.E.D. Said
course shall be completed and the G .E.D. obtained within one (1) year from this date;
n. Defendant shall submit his person, property, place of residence, vehicle, andlor
personal effects to search at any time, with or without a search warrant or warrant of
arrest, by any community supervision officer or law enforcement officer;
o. Defendant shall not possess any firearm(s);
p. Pay a community supervision fee of$60.00 per month to the Community Supervision
and Corrections Department between the 1st and 15th day of each month hereafter
during community supervision, beginning JUNE 22,2014;
q. Pay $50.00 Crime Stoppers fee to the Community Supervision and Corrections
Department on or before AUGUST 22,2014 ;
r. Pay $85.00 to the Community Supervision and Corrections Department for the Pre-
Sentence report on or before JULY 22,2014; rY
s. Pay $.'359 Court costs; $ 0.00 restitution for the benefit of N/A;

-3-
Minute
Date =_ _ _ _ _ _ _,
112
 CAUSE NO. 12-03-02583-CR
STATE OF TEXAS V. Sybil Lea Doyle

Court appointed attorney fees; and $5000 fine, all in one lump sum payment to the
Montgomery County District Clerk on the day this Judgment is entered pay
in installments, the total sum of the foregoing to the Montgomery County District
Clerk, including $2.00 fee for each payment made (pursuant to Article 102.072,
T.C.C.P .), as set forth in the Collection Agreement which is incorporated herein and
made part of this judgment as if copied verbatim;

The Clerk of this Court will furnish the Defendant a Certified copy of this Order, and shall note on
the Docket Sheet the date of delivery of this Order.

SIGNED AND ENTERED this the-Q;21.y of ,2014.

Defi dant

District Clerk of
Montgomery CountYl Texas RIGHT THUMB PRINT

By: ,Deputy

-4-
Minute
Date =_ _ _ _ _. ___, ___
113
APPENDIX TAB B – COURT OF APPEALS OPINION

34
 In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00458-CR
____________________

SYBIL LEA DOYLE, Appellant

V.

THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________

On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 12-03-02583 CR
________________________________________________________ _____________

MEMORANDUM OPINION

A jury convicted Sybil Lea Doyle of voting in a May 2010 election to select

the directors of the board of The Woodlands Road Utility District No. 1 when she

knew she was not eligible to vote in that election. See Tex. Elec. Code Ann. §

64.012(a)(1) (West Supp. 2015). 1 Doyle elected to have the trial court assess her

punishment. Following Doyle’s sentencing hearing, the trial court assessed a three-

1
We cite to the current version of the statute, as the 2011 amendment to
section 64 of the Election Code does not affect the issues that we resolve in this
appeal.
1
year prison sentence and a fine of $5,000. However, the trial court then suspended

Doyle’s sentence, and placed her on probation for five years.

Doyle presents five issues in her appeal, arguing (1) that a vague definition

of “residence” in the Texas Election Code violated her right to due process; (2) that

the evidence is legally insufficient to overcome the presumption given to Doyle’s

intent on questions regarding her residence; (3) that the evidence is legally

insufficient to support the jury’s finding that she voted illegally; (4) that the

evidence established Doyle’s affirmative defense of mistake, a defense that Doyle

used at trial to argue that she thought she could legally vote in the election even

though she never intended, while within the District, to make a home there; and (5)

that she received ineffective assistance of counsel during her trial. We conclude

that Doyle’s issues are without merit, we uphold the jury’s verdict, and we affirm

the trial court’s judgment.

Background

Shortly before the May 2010 primary election, a group of ten persons,2

which included Doyle and her daughter, Roberta Cook, filed voter registration

2
The group included James Jenkins, Adrian Heath, Thomas Curry, Bill
Berntsen, Peter Goeddertz, Richard McDuffee, Sybil Doyle, Roberta Cook,
Benjamin Allison, and Robert Allison. Doyle, Cook, Jenkins, and Heath were
convicted by a jury of voting illegally in the same election that is at issue in
Doyle’s appeal. See generally, Cook v. State, No. 09-14-00461-CR, 2015 WL
2
applications with the Elections Administrator of Montgomery County. In them, the

ten voters identified their residences as 9333 Six Pines Drive or as 9333 Six Pines.

A Marriott Residence Inn is located at the Six Pines address these ten voters used

to identify their respective places of residence. The Marriott lies within the

District’s election boundaries.

A total of twelve individuals voted in the May 2010 District’s election. Ten

voters, all members of the group claiming the Marriott as their residence, voted for

Peter Goeddertz, Bill Berntsen, and Richard McDuffee, who were challenging the

District’s incumbent directors in the election. Two other voters cast ballots in the

May 2010 election, and these two voters cast their ballots in favor of the District’s

incumbent directors.

After the election, the incumbent directors contested the results of the May

2010 election regarding the District’s directors. Following the trial of the election

contest, the judge presiding over the contest found that the voters who had listed

their residences at 9333 Six Pines Drive or 9333 Six Pines did not cast legal votes

because none of them resided within the boundaries of the District. The presiding

judge over the election contest case also found that the two votes cast for the

7300664 (Tex. App.—Beaumont Nov. 18, 2015, pet. filed) (mem. op., not
designated for publication); Jenkins v. State, 468 S.W.3d 656 (Tex. App.—
Houston [14th Dist.] 2015, pet. granted).
3
incumbent directors were valid, and it declared the incumbent directors to have

won the May 2010 election. Richard McDuffee, Peter Goeddertz, Bill Berntsen,

Adrian Heath, James Jenkins, Thomas Curry, Benjamin Allison, and Robert

Allison filed an appeal challenging the judgment overturning the election of

Goeddertz, Berntsen, and McDuffee. We affirmed the judgment rendered in the

election contest case, given the trial court’s resolution of the facts involved in that

dispute. See McDuffee v. Miller, 327 S.W.3d 808, 811 (Tex. App.—Beaumont

2010, no pet.).

In 2012, the grand jury indicted Doyle for voting illegally in the May 2010

road utility district election. Subsequently, Doyle and Cook were tried before a

jury in one proceeding. At the conclusion of their trial, the jury found both Doyle

and Cook guilty of voting illegally in the District’s May 2010 election.

Doyle and Cook filed appeals complaining of the jury’s findings that they

were guilty of voting illegally. We previously affirmed Cook’s conviction, and we

discussed in some detail the evidence introduced during the trial that involved both

Cook and Doyle. See Cook v. State, No. 09-14-00461-CR, 2015 WL 7300664, at

*1 (Tex. App.—Beaumont Nov. 18, 2015, pet. filed) (mem. op., not designated for

publication).

4
 Indictment

In issue one, Doyle challenges the trial court’s denial of her motion seeking

to quash her indictment for voting illegally in the District’s May 2010 election. On

appeal, Doyle argues that the trial court should have quashed her indictment

because the Texas Election Code employs an indefinite and circular standard to

determine a voter’s residence. We review challenges to rulings on motions to

quash indictments on appeal using a de novo standard. Lawrence v. State, 240

S.W.3d 912, 915 (Tex. Crim. App. 2007).

In evaluating Doyle’s argument that the Election Code’s residence

requirements are so uncertain they cannot be enforced, we “construe a statute

according to its plain language, unless the language is ambiguous or the

interpretation would lead to absurd results that the legislature could not have

intended.” Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008). A

statute is unconstitutionally vague when a person of “‘common intelligence must

necessarily guess at its meaning and differ as to its application[.]’” Baker v. State,

478 S.W.2d 445, 449 (Tex. Crim. App. 1972) (quoting Connally v. Gen. Constr.

Co., 269 U.S. 385, 391 (1926)). When a statute is not ambiguous, we assume the

Legislature meant what it has expressed, and a court should not add or subtract

5
from the meaning of the statute. Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim.

App. 2009).

Under the Election Code, an eligible voter must “be a resident of the

territory covered by the election for the office or measure on which the person

desires to vote[.]” Tex. Elec. Code Ann. § 11.001(a)(2) (West 2010). Section 1.015

of the Texas Election Code provides meaning to what is required to be a “resident”

under section 11.001, as it provides:

(a) In this code, “residence” means domicile, that is, one’s
home and fixed place of habitation to which one intends to return after
any temporary absence.
(b) Residence shall be determined in accordance with the
common-law rules, as enunciated by the courts of this state, except as
otherwise provided by this code.
(c) A person does not lose the person’s residence by leaving the
person’s home to go to another place for temporary purposes only.
(d) A person does not acquire a residence in a place to which
the person has come for temporary purposes only and without the
intention of making that place the person’s home.
(e) A person who is an inmate in a penal institution or who is an
involuntary inmate in a hospital or eleemosynary institution does not,
while an inmate, acquire residence at the place where the institution is
located.

Id. § 1.015 (West 2010).

Relying on Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964), Doyle

suggests that the Texas Supreme Court recognized that the definition of

“residence” is unclear. Doyle concludes that the meaning of the term “residence,”

6
as used in in section 1.015 of the Texas Election Code, is so vague that it “fails to

pass constitutional muster in violation of the Due Process Clauses of the Fifth and

Fourteenth Amendments to the United States Constitution.”

However, the Texas Supreme Court in Mills was not asked to address a due

process challenge to the Election Code based on the meaning of the term

“residence.” Id. at 636-37. Instead, the issue addressed by the Mills court

concerned one candidate’s challenge that claimed another candidate was not a

resident of the County for the purpose of an election to a county office. Id. And,

while the Mills court noted that “[v]olition, intention and action are all elements to

be considered in determining where a person resides[,]” the Court allowed the

factfinder to draw the inferences that were available from the evidence to decide

whether the candidate who was being challenged had become a resident of the

county in which he sought election to office. Id. at 637-38. In summary, the Mills

court did not hold that any of the provisions in the Texas Election Code were

unenforceable on the grounds that the requirement that a candidate be a resident of

the county where the election occurred were unclear. Id.

Although several factors are used under the Election Code to determine

whether an individual has established “residence” within an election district, the

fact that several factors are used does not demonstrate that persons of ordinary

7
intelligence cannot determine whether they are eligible (or ineligible) to vote in an

election when they reside outside an election district’s boundaries. The plain

language of section 1.015 makes it clear that a voter cannot establish residence by

being in a place temporarily while at the same time never intending to make that

place her home. Tex. Elec. Code Ann. § 1.015(a), (d). The provision is not vague,

and reasonable voters would not be misled by the Election Code’s requirement that

the voter both be present within the election boundaries of the entity holding the

election and while there, the voter must also have the intent to make a home within

the district to cast a legal vote in the entity’s election. Because the residence

requirements of the Election Code regarding residence are not ambiguous and they

do not subject voters like Doyle to absurd results, we overrule her first issue. See

Tapps, 294 S.W.3d at 177; see also Williams, 253 S.W.3d at 677.

Sufficiency of the Evidence

In issues two through four, Doyle challenges the trial court’s denial of her

motion for directed verdict. According to Doyle, the evidence is legally insufficient

to support the jury’s verdict, and the jury could not reasonably have rejected her

defense that she was mistaken about her ability to register and vote in the District’s

election. Doyle contends the State failed to present sufficient evidence that she

voted knowing that she was ineligible to do so, and she argues that when she

8
decided to register and vote, she reasonably relied on statements of the Attorney

General and Secretary of State regarding her eligibility. We address two through

four together.

Doyle’s second and third issues complain that the evidence is insufficient to

support the jury’s finding that she was guilty of voting illegally in the District’s

election. Therefore, we note the standard of review that applies to the sufficiency

arguments that Doyle raises in issues two and three. When an appellant challenges

the sufficiency of the evidence supporting a conviction in a criminal case, appellate

courts consider all of the evidence in the light most favorable to the verdict, and

decide, after reviewing the evidence in that light, whether a rational trier of fact

could have found the appellant guilty of the essential elements of the crime beyond

a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Temple v.

State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In reaching a verdict, juries

are entitled to view circumstantial evidence as evidence that is just as probative as

direct evidence in deciding whether the defendant is guilty of the crime charged in

the indictment. Temple, 390 S.W.3d at 359. With respect to whether a defendant

acted with the required intent to violate a criminal statute, evidence relevant to the

defendant’s intent is reviewed using the same standard that is used to review

whether the evidence is sufficient to prove any of the other elements of the crime

9
that is being challenged by the appellant. Laster v. State, 275 S.W.3d 512, 520-21

(Tex. Crim. App. 2009). In reviewing sufficiency challenges, appeals courts are

required to give the jury’s findings and its conclusions deference, as it was the

jury’s responsibility to fairly resolve all conflicts in the testimony, the jury’s

responsibility to weigh the evidence, and the jury’s responsibility to draw

reasonable inferences from the basic facts to resolve whether the defendant is

guilty of violating the criminal provision that is at issue in the trial. See Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Doyle’s challenge in issue four to the jury’s rejection of her affirmative

defense of mistake is reviewed using a somewhat different standard than the one

used to review issue two and three. When reviewing legal sufficiency issues that

challenge a jury’s rejection of an affirmative defense, an appellate court “should

first assay the record for a scintilla of evidence favorable to the factfinder’s finding

and disregard all evidence to the contrary unless a reasonable factfinder could not.”

Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015). The jury’s rejection

of an affirmative defense is legally insufficient only when the evidence

conclusively proves the affirmative defense, and no reasonable factfinder would

reasonably conclude otherwise. Matlock v. State, 392 S.W.3d 662, 670 (Tex. Crim.

App. 2013). When reviewing a factual-sufficiency challenge to the jury’s rejection

10
of a defendant’s affirmative defense, the appellate court examines the evidence in a

neutral light. Butcher, 454 S.W.3d at 20. A defendant’s factual-sufficiency

challenge may be sustained “only if, after setting out the relevant evidence and

explaining precisely how the contrary evidence greatly outweighs the evidence

supporting the verdict, the court clearly states why the verdict is so much against

the great weight of the evidence as to be manifestly unjust, conscience-shocking,

or clearly biased.” Matlock, 392 S.W.3d at 671.

In issues two, three, and four, Doyle’s arguments focus on the requirements

under the Election Code that a person establish a residence within the election

district to cast a legal vote in an election that is conducted by an entity within those

boundaries. See Tex. Elec. Code Ann. § 1.015. Doyle suggests the evidence is

insufficient to show that she violated the Election Code, given her difficulty in

understanding the law. Under Texas law, a person votes illegally by voting or

attempting “to vote in an election in which the person knows the person is not

eligible to vote[.]” Tex. Elec. Code Ann. § 64.012(a)(1). A person alleging a

mistake of law must show that she reasonably believed the charged conduct did not

constitute a crime, and that she acted in reasonable reliance upon one of the

following:

11
 (1) an official statement of the law contained in a written order
or grant of permission by an administrative agency charged by law
with responsibility for interpreting the law in question; or
(2) a written interpretation of the law contained in an opinion of
a court of record or made by a public official charged by law with
responsibility for interpreting the law in question.

Tex. Penal Code Ann. § 8.03(b) (West 2011).

Whether Doyle could establish that she was a resident within the boundaries

of the road utility district to vote in the road utility district election without ever

intending to make the Marriott her home was an issue on which the jury heard

conflicting testimony. Given the jury’s finding of guilt, the jury may have inferred

from the evidence that Doyle never intended to make the Marriott or any other

place within the boundaries of the District her home on the occasions that she was

temporarily within the District’s election boundaries. Or, the jury may have

decided that Doyle subjectively believed she could vote in the election without

ever having intended to make her home within the District’s boundaries, but then

found that Doyle’s subjective belief that she could vote without ever intending to

make her home there unreasonable. Under the standard of review that applies to

her legal sufficiency challenges, we are required to view the evidence in the light

that most favors the jury’s finding that she was guilty of voting illegally, and we

must give the jury’s findings deference when the jury’s inferences from the

evidence were reasonable. See Hooper, 214 S.W.3d at 13. Although there were
12
conflicts in the testimony about Doyle’s motives for casting a vote in the District’s

election, the jury was entitled to “use common sense and apply common

knowledge, observation, and experience gained in ordinary affairs” in resolving

them. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). We also note

that the law does not require that “every fact and circumstance ‘point directly and

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

by the combined and cumulative force of all the incriminating circumstances.’” Id.

(quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)).

There was testimony before the jury that related specifically to Doyle’s

knowledge of the law and her motives for voting in the District’s election. Doyle’s

husband testified during the trial that he and Doyle reside at an address outside the

road utility district. Doyle’s husband explained that the day before the District’s

election, he took Doyle and Cook to a one and a half hour long meeting at the

Marriott, where they talked about an Attorney General Opinion and a Secretary of

State opinion that addressed the residency requirements under the Texas Election

Code. Doyle’s husband acknowledged that Doyle and Cook did not spend the night

before the election at the Marriott; instead, after the meeting, they returned to their

homes, and the next day, Doyle and Cook voted in the District’s election. It was

undisputed that Doyle and Cook never spent a single night at the Marriott.

13
Moreover, the Election Code specifically indicates that a person cannot become a

“resident” for purposes of an election by spending an evening at a location on a

temporary basis without having the intent to make that place the person’s home.

See Tex. Elec. Code Ann. § 1.015(d).

Doyle testified in her own defense during the trial. According to Doyle, for

over forty years she lived on Bending Oaks and had registered to vote at that

address because “that’s where we live.” Doyle admitted during the trial that she

has never moved from her address on Bending Oaks. In April 2010, Doyle signed a

voter registration form that lists 9333 Six Pines Drive as her residence; on the same

form, Doyle listed her address on Bending Oaks as the address where she received

her mail. Doyle’s voter registration application contains the following statement: “I

understand that giving false information to procure a voter registration is perjury,

and a crime under state and federal law.” During the trial, Doyle indicated that she

lived with her husband at their house located on Bending Oaks. During her

testimony, Doyle acknowledged that she went to the Marriott on the day before the

election, and the day of the election, but she never spent a night at the Marriott on

Six Pines Drive.

James Stilwell, the attorney who represented the incumbent directors in the

election contest case, also testified during Doyle’s trial. He identified photographs

14
of Doyle’s home on Bending Oaks, which were taken approximately two weeks

after the May 2010 election. He explained that the photographs show a home that

appeared to be lived-in. The jury also heard testimony that none of the group of ten

individuals associated with Doyle who registered and voted in the District’s

election ever made homes within the election boundaries for the District, and the

jury was entitled to consider the fact that Doyle was part of an organized effort by

individuals that did not have homes within the District’s boundaries to oust the

District’s incumbent directors in deciding whether Doyle acted intentionally.

Given the evidence admitted during the trial allowing the jury to infer that Doyle

never intended to make her home within the District, the jury’s conclusions that

Doyle’s presence in the district was for a temporary purpose that was

unaccompanied by any intent to make a home there is supported by substantial

evidence that the trial court admitted before the jury during Doyle’s trial. See id. §

1.015(a), (d).

The jury could use the same evidence to reject Doyle’s claim that she made

a legal mistake by deciding that she could cast a legal vote in the District’s

election. When viewed either in a neutral light or in the light that most favors the

jury’s verdict, the jury could conclude either that Doyle did not ever believe she

could cast a legal vote in the District’s election, or that if she subjectively thought

15
she could vote legally, her subjective belief was unreasonable. See Butcher, 454

S.W.3d at 20; Hooper, 214 S.W.3d at 13. According to Doyle, she reviewed an

Attorney General opinion and a Secretary of State opinion at a meeting before the

election that addressed the requirements to vote in a Texas election. However, the

opinions on which Doyle testified she examined alert the reader to the Election

Code’s prohibition against acquiring “a residence in a place to which the person

has come for temporary purposes only and without the intention of making that

place the person’s home.” Tex. Elec. Code Ann. § 1.015(d); see Tex. Sec’y State

Op. No. GSC-1 (2004); see also Tex. Att’y Gen. Op. No. GA-0141 (2004). In

discussing the requirement of residency, the Secretary’s opinion that Doyle

testified she reviewed notes:

A removal to divest one of his right to vote must be accompanied by
an intent to make a new domicile and quit the old. Mere removal,
coupled with an intent to retain the original domicile and return to it,
will not constitute a change.

Tex. Sec’y State Op. No. GSC-1 (quoting Guerra v. Pena, 406 S.W.2d 769, 776

(Tex. Civ. App.—San Antonio 1966, no writ)). The Attorney General’s opinion

that Doyle reviewed clearly explains that “[b]oth bodily presence and current

intention on the part of the applicant or voter are necessary to establish residence.”

Tex. Att’y Gen. Op. No. GA-0141. Additionally, the Attorney General’s opinion

indicates that the State might investigate and prosecute a voter if credible evidence
16
were brought to the office’s attention or if a complaint were to be filed alleging an

Election Code violation. Id.

By reading the information on which Doyle claimed she relied to vote, the

jury could have concluded that a reasonable person would have understood that a

person cannot vote in an election by going within the district’s election boundaries

for a temporary purpose without ever having, when there, the intent to make a

home within the District’s boundaries. See id.; see also Tex. Sec’y State Op. No.

GSC-1. We conclude that the evidence before the jury was legally and factually

sufficient to allow it to reasonably reject Doyle’s defense that she made a mistake

of law. See Acosta, 429 S.W.3d at 625; see also Tex. Penal Code Ann. § 8.03(b).

We further hold that the evidence was legally sufficient to allow the jury to infer,

beyond a reasonable doubt, that Doyle voted illegally. See Jackson, 443 U.S. at

318-19; see also Tex. Elec. Code Ann. § 64.012(a)(1); Hooper, 214 S.W.3d at 13.

We overrule issue two through four.

Ineffective Assistance

In issue five, Doyle contends that she received ineffective assistance from

her counsel during her trial. In support of her argument, Doyle criticizes her trial

attorney for not offering a letter from the voter registrar into evidence. Doyle

contends the registrar’s letter shows that she was one of the voters that the registrar

17
registered for the District’s May 2010 election, and she suggests that the letter

would have supported her claim that she thought she could vote legally in the

District’s election. Additionally, Doyle contends that trial counsel should have

offered into evidence various voter registrations that she claims would have shown

that some voters listed addresses where offices, not residences, are located. Doyle

suggests that such evidence would have undercut the State’s argument that a

person must vote where they live, and supported her claim that the State was

selectively enforcing the election laws. Doyle also suggests that her trial counsel

was ineffective because he failed to file a detailed motion for new trial, but she

does not identify the issues that she claims her counsel should have raised in such a

motion.

The documents Doyle uses to support her argument on appeal were never

marked as exhibits and given to the trial court during the trial, nor were they made

part of the record as part of her motion seeking a new trial. See Tex. R. App. P.

34.1 (indicating “[t]he appellate record consists of the clerk’s record and, if

necessary to the appeal, the reporter’s record[]”). While the documents on which

Doyle relies to support her issue five arguments were included with her brief, the

evidence used to support a post-trial motion must be admitted into evidence in a

hearing conducted by the trial court before it may properly be considered by the

18
appeals court in a direct appeal. Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim.

App. 2009) (holding that the appeals court erred in relying on matters that were

never offered into evidence at a hearing on a motion for new trial). We decline

Doyle’s request asking that we consider documents that are not part of the clerk’s

or reporter’s record in deciding her appeal. See James v. State, 997 S.W.2d 898,

901 n.5 (Tex. App.—Beaumont 1999, no pet.) (“An appellate court must determine

a case on the record as filed and cannot consider documents attached as exhibits or

appendices to briefs or motions.”)

Ineffective assistance of counsel claims are generally unsuccessful in a

direct appeal because the trial court record is rarely developed sufficiently to

support such claims. Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App.

1997). In her motion for new trial, Doyle did not raise an ineffective assistance

claim, and the trial court did not conduct a hearing to consider Doyle’s claim that

she received ineffective assistance. In summary, Doyle’s appeal does not present

“the rare case where the record on direct appeal is sufficient to prove that counsel’s

performance was deficient[.]” Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex.

Crim. App. 2000). Given the fact that the record does not show that Doyle’s

counsel had the opportunity to explain his strategy as related to the evidence Doyle

now claims should have been introduced during her trial, we hold that Doyle failed

19
to overcome the strong presumption that she received reasonable professional

assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).

In the absence of a proper record that supports Doyle’s ineffective assistance

claim, the proper procedure is to overrule Doyle’s ineffective assistance claim

without prejudice to her right to raise a claim of ineffective assistance in a post-

conviction writ. See Robinson, 16 S.W.3d at 813 n.7.

Having overruled all of Doyle’s issues, the trial court’s judgment is

affirmed. 3

3
The trial court’s written judgment states:

. . . The Defendant, in person and by and through her attorney, waived
the right of trial by jury in writing; the Assistant District Attorney
approved and consented in writing to the waiver of a jury; and, the
Court approved and consented to same. The Defendant, having been
duly arraigned, entered her plea of Guilty. It appeared to the Court
that the Defendant was mentally competent and that her plea was free
and voluntary. The Court admonished the Defendant as to the
consequences of such plea and the Defendant persisted in entering her
plea of Guilty. Therefore, the Court accepted the Defendant’s plea.

The Court, having heard the Indictment read and the Defendant’s plea
thereto, postponed a finding of guilt and ordered that a Pre-Sentence
Investigation be conducted by the Community Supervision and
Corrections Department.

And, the Court on this date, MAY 22, 2014, after reviewing the
evidence submitted and determining that it was sufficient to show the
guilt of the Defendant, and having considered the Pre-Sentence
Investigation Report and arguments of counsel, is of the opinion and,
20
 AFFIRMED.

________________________________
HOLLIS HORTON
Justice

Submitted on October 29, 2015
Opinion Delivered March 9, 2016
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.

therefore, finds the Defendant guilty of the offense as charged and that
the offense was committed on May 08, 2010.

These recitals are largely incorrect, as the reporter’s record demonstrates that
Doyle rejected the State’s plea bargain offer, entered a plea of Not Guilty, and did
not waive her right to a jury trial on her guilt or innocence. Because the trial court
can correct these clerical mistakes by entering a judgment nunc pro tunc, as it does
not need plenary power to sign a judgment correct these clerical errors, we need
not remand the case for the correction of these portions of the judgment. See State
v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994); Alvarez v. State, 605
S.W.2d 615, 617 (Tex. Crim. App. 1980).
21