In the Court of Criminal
Appeals of Texas
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No. PD-0881-20
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CRYSTAL MASON,
Appellant,
v.
THE STATE OF TEXAS
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On Appellant’s Petition for Discretionary Review
From the Second Court of Appeals
Tarrant County
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YEARY, J., filed a concurring and dissenting opinion.
I concur in the Court’s disposition to remand this case to the court
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of appeals for further consideration, although I take issue with some of
the Court’s reasoning along the way. Moreover, my remand would
embrace more for the court of appeals potentially to reconsider than the
Court has prescribed in its opinion today. I write separately to explain
where I agree and disagree with the Court and how and why I would
expand the scope of the Court’s remand.
I. PROOF OF KNOWLEDGE
A. The Statute is Plain
First, I readily agree with the Court’s conclusion that the court of
appeals in this case misconstrued the plain language of the illegal voting
statute, which on its face requires proof that the actor knew she was
ineligible to vote, and not just that she was aware of the circumstances
that rendered her ineligible to vote. Majority Opinion at 13; see TEX.
ELEC. CODE § 64.012(a)(1) (making it an offense if a person “votes or
attempts to vote in an election in which [the person] knows [she] is
ineligible to vote”). That said, I also agree with the dissent that, because
the language of the statute plainly requires proof of the actor’s
knowledge that she was ineligible to vote, there is no need to “construe”
an ambiguous statute in the way the Court found necessary in Delay v.
State, 465 S.W.3d 232 (Tex. Crim. App. 2014). Dissenting Opinion at 4.
All the Court needs to do here, it seems to me, is to simply disavow the
case that the court of appeals relied upon as authority to ignore the
statute’s plain import: Thompson v. State, 9 W.W. 486, 486–87 (Tex. Ct.
App. 1888). See Mason v. State, 598 S.W.3d 755, 768–70 (Tex. App.—
Fort Worth 2020) (citing Thompson for the proposition that “the State
does not have to prove that the defendant subjectively knew that voting
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[under conditions making her ineligible to vote] made the defendant
ineligible to vote under the law”). 1
B. Remand is Appropriate
I also agree with the Court that, having determined that the court
of appeals conducted its legal sufficiency analysis under a faulty
construction of the applicable Election Code provision, the prudent
course is to remand the case to that court for further proceedings rather
than for us to conduct the legal sufficiency analysis for the first time
under the appropriate construction of the statute. Majority Opinion at
17. That way, we are able to obtain the lower court’s perspective on the
sufficiency of the evidence under the proper construction of the statute.
Cf. McClintock v. State, 444 S.W.3d 15, 21 (Tex. Crim. App. 2014) (a
remand for the court of appeals to consider as-yet unresolved questions
following this Court’s disposition of an initial petition for discretionary
1 The court of appeals may certainly be forgiven for relying on
Thompson for what it perceived to be “binding” authority. Mason, 598 S.W.3d
at 768–69 & n.11. In Thompson, our predecessor, the Texas Court of Appeals,
was construing a provision of the 1879 Penal Code that just as plainly required
knowledge on the part of a would-be voter that he was “not qualified” before he
could be convicted of voting illegally. Article 165 of the 1879 Penal Code made
it an offense for any person to “vote, or offer to vote,” at any election while
“knowing himself not to be a qualified voter[.]” Despite this plain language, the
Court of Appeals held that evidence that the defendant knew he had been
convicted of a felony constituted sufficient proof that he also knew he was “not
qualified” to vote, and that it must be presumed he knew that “the law made
one of the consequences of the conviction his disqualification to vote.”
Thompson, 9 S.W. at 486. This presumption made proof of actual knowledge of
his disqualification under the statute unnecessary, and a jury instruction
equating knowledge of his conviction with knowledge of his disqualification as
a voter was therefore “correct and unobjectionable.” Id. We need not overrule
Thompson since it was construing a different statute. But we should certainly
disavow its failure to abide by plain statutory language.
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review means that “our resolution of the issue (if any should even be
necessary after a remand) would benefit from a carefully wrought
decision from the court of appeals”). 2
C. What Knowledge must be Established?
With respect to the Court’s holding that knowledge of ineligibility
is required, there are three other matters I wish briefly to address in
this admittedly omnibus concurring opinion. The first two matters echo
criticisms that the dissenting opinion has made of the Court’s opinion
today that I think bear emphasis. The third relates to the Court’s failure
to first consider an obvious constitutional question about the Texas
Legislature’s most recent amendment to the statute at issue before
considering that amendment to be applicable in this case.
1. Substantive Statutory Requirements
First, as the dissent points out, the Court’s opinion appears to
suggest that, to be found guilty of committing an offense a person must
2 What is more, a remand would allow the court of appeals to re-
evaluate its disposition of some of Appellant’s ineffective assistance of counsel
claims—claims which it also originally disposed of, at least partly, based on its
misconstruction of the statute. See Mason, 598 S.W.3d at 785 (rejecting
Appellant’s claim that trial counsel should have called additional witnesses to
establish that she lacked knowledge that she was ineligible to vote on the basis
that proof of such knowledge was not necessary for conviction); id. at 786–87
(rejecting Appellant’s claim that trial counsel should have explored potential
bias of the precinct election judge on the basis that it would not have made a
difference to her defense, since the State need not prove she knew she was
ineligible to vote); id. at 788 (rejecting Appellant’s claim that trial counsel had
an actual conflict of interest because the only defense it could have raised
incorrectly assumed that the State must prove Appellant was aware of her
ineligibility to vote). This Court’s construction of the statute today could cause
the court of appeals to want to revisit its initial resolution of these ineffective
assistance claims.
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first be shown to have known that her conduct specifically violated “the
Election Code.” See Majority Opinion at 16 (“Now that we have
recognized that section 64.012 requires individuals to know they are
ineligible to vote to be convicted of illegal voting, what does it
substantively mean to knowingly violate the Election Code?”) (emphasis
added); Dissenting Opinion at 6 (arguing that “Section 64.012 requires
only that the Appellant knew she was ineligible to vote. It does not
require her to know that voting while ineligible violates the Election
Code.”). I agree with the dissent that nothing about the statute
specifically demands proof that an accused was even aware of the
existence of an Election Code, much less that such a code provides for
requirements that must be met before a vote may be cast. The statute
only requires proof that the person knew that he or she was ineligible to
vote, whatever may have been the source of that knowledge. 3 To the
extent that the Court’s opinion seems to increase the State’s burden by
requiring proof of knowledge of the existence and contents of the
“Election Code,” it overstates the requirements of the law.
3 Imagine a circumstance in which an election judge tells a prospective
voter: “Because you are a convicted felon, and because you have not been
pardoned or finally released from supervision, you are ineligible to vote.” The
accused person then says, “Well, I haven’t seen such a law myself, but I accept
what you have told me, and I am going to vote anyway.” And the accused person
then casts a ballot in an election. Would this evidence satisfy the State’s burden
under the statute? Or would the State also be required to prove: (1) that the
accused knew that Section 11.002 of the Texas Election Code establishes
qualifications for voters; and (2) that the accused knew that she specifically
failed to meet those specific statutory qualifications? To the extent the Court
seems to require the latter, it requires proof that the statute does not
contemplate.
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2. Burden of Proof
Moreover, as the dissent further observes, the court also seems to
require a heightened burden of proof with regard to knowledge of
ineligibility. See Majority Opinion at 17 (“[T]he State was required to
prove not only that Appellant knew she was on supervised release but
also that she “actually realized” that “these circumstances . . . in fact”
rendered her ineligible to vote.”); Dissenting Opinion at 5 (arguing that
“[b]y referring to a person’s ‘actual’ realization that she is ineligible to
vote, the Court’s opinion implies that a heightened standard of
knowledge applies here[.]”). The statute plainly requires proof that
Appellant knew she was ineligible to vote. That does not mean the State
must satisfy anything other than proof beyond a reasonable doubt of
that fact, by either direct or circumstantial evidence. I agree with the
dissent that, to the extent that this phrase—“actually realized”—may
import some meaning beyond mere awareness that the person is
ineligible to vote, it overstates the required culpable mental state. See
TEX. PENAL CODE § 6.03(b) (“A person acts knowingly, or with
knowledge, with respect . . . to circumstances surrounding his conduct
when he is aware . . . that the circumstances exist.”).
3. Retroactive Law?
Finally, I must express some misgivings about the Court’s
application of this recent statutory corroboration requirement to the
present case. I am aware, of course, that the Legislature purported to
make this new requirement applicable to any non-final conviction—and,
indeed, applicable to this very case, according to the Court’s discussion
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of legislative history. 4 Majority Opinion at 14–16. I find it disturbing
that nobody has yet bothered at least to inquire whether such a
retroactive application of a corroboration requirement can be squared
with the Texas Constitution’s prohibition against retroactive laws. See
TEX. CONST art. I, § 16 (“No . . . retroactive law . . . shall be made.”).
II. BUT IS A PROVISIONAL BALLOT REALLY A “VOTE”?
If, pursuant to the Court’s remand, the court of appeals were to
determine that the evidence is insufficient to establish that Appellant
was aware that she was ineligible to vote, that would end the
prosecution (subject to further discretionary review in this Court).
Should it determine, instead, that the evidence is sufficient, it seems to
me that there would be more for the court of appeals to decide before it
could uphold a conviction. I say this because I disagree with the Court’s
conclusion today that “voting” under Section 64.012(a)(1) of the Election
Code should be construed to include casting a “provisional ballot.”
I am unimpressed with the Court’s argument for why casting a
provisional ballot constitutes the act of voting for purposes of the illegal
voting statute. Majority Opinion at 21–25. Noting that this is a question
4 As the Court explains, Majority Opinion at 8–9, the most recent
Legislature has added Subsection (c) to Election Code Section 64.012, which
now provides that “[a] person may not be convicted solely upon the fact that
the person signed a provisional ballot affidavit under Section 63.011 [of the
Texas Election Code] unless corroborated by other evidence that the person
knowingly committed the offense.” Acts 2021, 87th Leg., 2nd C.S., ch. 1 (S.B.
1), § 9.03, eff. Dec. 2, 2021. This amendment was expressly made applicable to
any non-final offense committed before, on, or after its passage. See id. § 9.04
(“The change in law made by this article in adding Section 64.012(c), Election
Code, applies to an offense committed before, on, or after the effective date of
this Act, except that a final conviction for an offense under that section that
exists on the effective date of this Act remains unaffected by this article.”).
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of first impression, Majority Opinion at 21, the Court’s logic consists
mainly of simply faulting Appellant for failing to produce any authority
for the proposition that casting a provisional ballot does not constitute
the act of voting. See e.g., id. at 22–24 (Appellant “fails to cite” any
authority to establish that a “provisional ballot” is any different than a
regular ballot). Neither the Penal Code’s definition in Title 8 of the verb
“to vote,” nor any of the various dictionary definitions the Court borrows
from the court of appeals’ opinion, really sheds light on the question. See
id. at 22–23 (recognizing, but failing to adopt, the definition of “vote” in
TEX. PENAL CODE § 36.01(4), and then alluding to the various dictionary
definitions of the verb “to vote” as noted by the court of appeals, quoting
Mason, 598 S.W.3d at 774).
The Court conspicuously avoids what seems to me to be the most
pertinent fact that informs the inquiry; namely, that a provisional ballot
is . . . well, provisional. That is to say, it is conditional, contingent,
inconclusive, not yet (and perhaps never to be) permanent. See BLACK’S
LAW DICTIONARY 1480 (11th ed. 2019) (“1. Provided for the time being to
supply a place to be occupied in the end by some more permanent
arrangement; temporary or conditional”); WEBSTER’S NEW WORLD
COLLEGE DICTIONARY 1171 (5th ed. 2014) (“arranged or established for
the time being, pending permanent arrangement or establishment”);
NEW OXFORD AMERICAN DICTIONARY 1406 (3rd ed. 2010) (“1 arranged or
existing for the present, possibly to be changed later; put into circulation
temporarily, usually owing to the unavailability of the definitive issue”);
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1827 (2002) (“1 :
provided for a temporary need : suitable or acceptable in the existing
MASON – 9
situation but subject to change or nullification”). While casting a ballot
in an election seems plainly to satisfy the statute, whether casting a
provisional ballot also does seems utterly up for grabs. In that case, the
Court has said that, since this is not a Penal Code offense, the rule of
lenity should control. See Delay, 465 S.W.3d at 251 (observing that, for
non-penal code penal provisions, “ambiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity”).
On the other hand, perhaps a provisional ballot could be said to
support a prosecution under the statute for attempted illegal voting, in
that the actor might pursue it in the hope that what starts out as a
“provisional” vote will ultimately be recognized and counted later on. At
the time of Appellant’s offense, an attempt to vote illegally (with the
same requisite specific knowledge of ineligibility) was a lesser-included
offense of illegal voting—a Class A misdemeanor rather than a third-
degree felony. 5 As part of my remand in this case, I would have the court
of appeals consider, if necessary, whether it would be appropriate to
reform Appellant’s judgment to reflect conviction for this lesser-included
attempt offense. See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim.
App. 2014) (holding that an appellate court may reform a judgment to
reflect conviction for a lesser-included offense if the factfinder’s
conviction for the greater offense necessarily embraced all elements of
the lesser-included offense and the evidence, while not supporting the
greater offense, did support all elements of the lesser-included offense).
5 Under the 2021 amendment, both voting and attempting to vote with
knowledge of ineligibility were made Class A misdemeanors. Acts 2021, 87th
Leg., 2nd C.S., ch. 1 (S.B. 1), § 9.03, eff. Dec. 2, 2021.
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III. CONCLUSION
With these observations, I concur in the Court’s decision to
remand the case to the court of appeals for further consideration of
Appellant’s first ground for review. I dissent to the Court’s holding that
to cast a “provisional ballot” constitutes “voting” under the statute, and
to the Court’s failure to broaden the scope of the remand to the court of
appeals for consideration, if necessary, of whether Appellant might be
guilty of, if not the greater offense of voting while ineligible, then of the
lesser-included offense of attempting to vote while ineligible.
FILED: May 11, 2022
PUBLISH