             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00138-CR
     ___________________________

      CRYSTAL MASON, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 432nd District Court
         Tarrant County, Texas
       Trial Court No. 1485710D


    Before Kerr, Birdwell, and Bassel, JJ.
        Opinion by Justice Birdwell
                                       OPINION

                                    I. Introduction

      Having waived a jury trial, Appellant Crystal Mason appeals from her

conviction by the trial court for illegal voting, a second-degree felony, see Tex. Elec.

Code Ann. § 64.012(a)(1), (b), and her sentence of five years’ confinement. Mason

raises the following challenges to her conviction and sentence: (1) the evidence is

legally and factually insufficient to support the guilt finding; (2) Texas’s illegal-voting

statute is preempted by the part of the Help America Vote Act (HAVA) that grants

the right to cast a provisional ballot, 52 U.S.C.A. § 21082(a) (West 2015); (3) her

conviction resulted from ineffective assistance of counsel; and (4) the illegal-voting

statute is unconstitutionally vague as applied to her. We will affirm.

                                    II. Background

A.    Mason voted in the 2004 and 2008 general elections in Tarrant County,
      Texas.

      In the 2004 general election, Mason filled out an Affidavit of Provisional Voter

form promulgated by the Texas Secretary of State, in which she listed her Tarrant

County address in Everman, birthdate, social security number, and driver’s license

number; she also checked a box saying that she is a United States citizen. The affidavit

form has two parts: a right side with blanks in which the provisional voter completes

the above-described information and a left side that includes affirmations that the

voter is “a registered voter of th[e] political subdivision and in the precinct” in which


                                            2
the person is attempting to vote and that the voter has “not been finally convicted of

a felony or if a felon, . . . [has] completed all . . . punishment including any term of

incarceration, parole, supervision, [or] period of probation, or . . . [has] been

pardoned.”1 Her completion of this form served as an application to register to vote

in Tarrant County from that point forward. See Tex. Elec. Code Ann. § 65.056(a) (“If

the affidavit on the envelope of a rejected provisional ballot contains the information

necessary to enable the person to register to vote under Chapter 13, the voter registrar

shall make a copy of the affidavit . . . [and] treat the copy as an application for

registration . . . .”). Tarrant County accepted the application and registered her as a

voter. Mason later voted in the November 2008 general and special elections in

Tarrant County as a registered voter, but she had moved by then and had a different

Tarrant County address (the Rendon address).



      1
       The full text on the left side of the affidavit form is in both English and
Spanish under the title, TO BE COMPLETED BY VOTER, and reads as follows:

      I am a registered voter in this political subdivision and in the precinct in
      which I’m attempting to vote and have not already voted in this election
      (either in person or by mail). I am a resident of this political subdivision,
      have not been finally convicted of a felony or if a felon, I have
      completed all of my punishment including any term of incarceration,
      parole, supervision, period of probation, or I have been pardoned. I
      have not been determined by a final judgment of a court exercising
      probate jurisdiction to be totally mentally incapacitated or partially
      mentally incapacitated without the right to vote. I understand that giving
      false information under oath is a misdemeanor, and I understand that it
      is a felony of the 2nd degree to vote in an election for which I know I
      am not eligible.

                                           3
B.    Mason pleaded guilty to a federal conspiracy felony, and the federal
      district court sentenced her to a maximum term of five years’
      imprisonment followed by a maximum term of three years’ supervised
      release.

      On November 23, 2011, Mason pleaded guilty to one count of conspiracy to

defraud the United States in violation of 18 U.S.C.A. § 371 (tax fraud), a Class D

felony. 18 U.S.C.A. §§ 371, 3559(a)(4) (West 2015). A person convicted of this offense

is subject to a maximum term of imprisonment of five years and a maximum term of

post-imprisonment supervised release of three years. Id. §§ 371, 3559(b), 3581(b)(4),

3583(a), (b)(2) (West 2015). On March 19, 2012, a federal district judge found her

guilty and sentenced her to the maximum term of both: five years’ imprisonment and

three years’ supervised release “upon release from imprisonment.” Mason did not

appeal but later filed a postconviction motion to vacate, set aside, or correct the

sentence under 28 U.S.C.A. § 2255. United States v. Mason-Hobbs, Nos. 4:13-CV-078-A,

04:11-CR-151-A-1, 2013 WL 1339195, at *2 (N.D. Tex. Apr. 3, 2013) (mem. op. and

order), aff’d, 579 Fed. App’x 248, 248–49 (5th Cir. 2014). 2

      As grounds for the motion, Mason alleged ineffective assistance of trial counsel

and sought a reduction in her sentence. But the district court denied the motion,



      2
        In its order denying relief, the district court described the legal standard for
Section 2255 relief: “After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands fairly and finally
convicted. A defendant can challenge her conviction or sentence after it is presumed
final on issues of constitutional or jurisdictional magnitude only . . . .” Mason-Hobbs,
2013 WL 1339195, at *2 (citations omitted).

                                            4
making it clear that Mason had avoided a much stiffer sentence 3 only through the

“exceptionally good” representation of her trial counsel. Id. at *2–6. Thus, there is no

question that Mason’s federal conviction had become final by at least 2013.

C.     Upon Mason’s federal felony conviction, her local elections authority
       cancelled her voter registration.

       Upon Mason’s conviction, the prosecuting United States Attorney had to give

written notice of her conviction to the Texas Secretary of State, the “chief State

election official” under Section 20507(g)(1) of the National Voting Rights Act

(“NVRA”). 52 U.S.C.A. §§ 20507(g)(1), 20509 (West 2015); see Tex. Elec. Code

Ann. § 31.001(a) (“The secretary of state is the chief election officer of the state.”);

Cascos v. Tarrant Cty. Democratic Party, 473 S.W.3d 780, 786 (Tex. 2015) (“The secretary

of state is the state’s chief election officer responsible for ensuring the uniform


       As the federal trial judge explained while addressing Mason’s trial counsel
       3

during her sentencing hearing,

       In this case, were it not for the fact that she was charged with only one
       offense, and obviously she could have been charged with multiple
       offenses, her Guideline range would have been 87 to 108 months. So
       you have done an exceptionally good job on behalf of your client . . . for
       figuring out how to get the Government to charge her with only one
       offense. And by doing so you have capped her sentence at 60 months.

             It would require a sentence of at least 60 months to begin to
       adequately and appropriately address the factors the Court should
       consider under 18 United States Code § 3553(a) [“Factors to be
       considered in imposing a sentence.”]. So I plan to impose a sentence of
       60 months.

Id. at *5–6.

                                           5
application and interpretation of election laws throughout Texas.”). The NVRA-

mandated notice includes the following information for the convicted person: name,

age, residence address, date of entry of the judgment of conviction, description of the

offenses of which the individual was convicted, and sentence imposed.

52 U.S.C.A. § 20507(g)(2) (West 2015). Moreover, the NVRA mandates that the

Texas Secretary of State provide the same information to the “voter registration

officials of the local jurisdiction” in which the convicted person resides. Id.

§ 20507(g)(5).

      In accordance with the NVRA’s requirements, the Tarrant County Elections

Administration (“TCEA”) ultimately received an April 26, 2013 report from the Texas

Secretary of State, which included 2012 federal felony sentences for Texas residents,

including Mason’s. In addition to the NVRA-mandated information, the report

included the last four digits of Mason’s social security number. More particularly, for

all federal felony sentences, the report identified the specific United States Attorney’s

office providing the information and included columns for the date of the sentence,

the charges made the basis of the conviction, the months of custody, and the years of

supervised release. For Mason, the report confirmed a March 20124 conviction

pursuant to 18 U.S.C.A. § 371 for “[c]onspiracy to commit offense or to defraud US”

with a sentence of sixty months in federal custody and three years of supervised

release. Finally, the report listed Mason’s home address as the Rendon address.

      4
       The report mistakenly listed the day of her conviction as March 18, 2012.

                                           6
       After receiving the report, the TCEA mailed a Notice of Examination dated

May 22, 2013, to Mason at the Rendon address indicating that it was examining her

voter registration because it had received information about her felony conviction.

The notice also informed Mason that if she did not reply within thirty days providing

“adequate information or documentation” establishing her qualifications to remain

registered, her registration would be cancelled. See Tex. Elec. Code Ann. § 16.033

(providing for cancellation of voter registration following investigation of eligibility).

       On June 25, 2013, the TCEA mailed Mason a Notice of Cancellation of Voter

Registration to the Rendon address indicating that because Mason had not responded

to the Notice of Examination, her voter registration in Tarrant County had been

cancelled. See id. § 16.031(a)(3) (providing for immediate cancellation of registration

on receipt of “an abstract of a final judgment of the voter’s . . . conviction of a

felony”). The notice further indicated that she was entitled to a hearing on written

request and that she could appeal any adverse decision by petitioning for review in a

state district court. See id. § 16.036.

       It is undisputed that the TCEA mailed both notices to the Rendon address

while Mason was serving her sixty-month term of imprisonment in federal custody.

Mason denied ever having received the notices. But neither were ever returned to the

TCEA. Upon cancelling Mason’s Tarrant County voter registration, the TCEA

changed her registration status to “cancelled” in its computerized voter-registration

system and, specific to her registration status, added a reference to the Texas Secretary

                                             7
of State’s 2012 report of federal felony sentences in the “Comments” section: “SOS

Felon List.”

D.    After completing her sixty-month term of imprisonment and during her
      supervised-release period, Mason cast a provisional ballot in the
      November 2016 general election; a grand jury subsequently indicted her
      for the offense of illegal voting.

      On November 6, 2015, Mason was released from federal custody to a re-entry

halfway house. While there, she––in her own words––“had to go through pre-release

classes where you have to go back and meet with different people and sign papers and

everything before you actually go on probation.” She was released from the halfway

house on August 5, 2016. 5 That same day, she reported to the federal probation

office––as she had been ordered to do in her final judgment of conviction––and met

with the officer assigned to supervise her. She reported that her residence would be

the Rendon address. According to the lead supervisor in the probation office, no one

in the office told Mason that she could not vote while on supervised release because

“[t]hat’s just not something [they] do.”

      On November 8, 2016, Mason went to her designated polling place so that she

could vote in the general election. She presented a valid driver’s license with correct

information, but the teen worker checking the voter-registration roll could not find

her name after looking under both “Mason” and “Hobbs.” Because Mason’s name

was not on the voter-registration roll even though she was at the correct polling

      5
       Mason clarified that she lived at the halfway house for three months and was
confined to her home for six months.

                                           8
location based on her driver’s license residence––the Rendon address––election

workers offered to let her complete a provisional ballot, which she agreed to do. As

she had done in 2004, Mason filled out an Affidavit of Provisional Voter and signed

it. She was given a code for a provisional ballot, selected her choices on a voting

machine, and cast her provisional ballot electronically.

      Mason’s neighbor Karl Dietrich, the elections judge for the precinct in which

Mason resided, called the Tarrant County District Attorney’s Office the day after the

general election to report a concern that the teen worker had brought to his attention

about Mason’s provisional ballot.6 Several months later, a grand jury issued an

indictment alleging that Mason had, in the 2016 general election, “vote[d] in an

election in which she knew she was not eligible . . . after being finally convicted of the

felony of Conspiracy to Defraud the United States . . . , and [she] had not been fully

discharged from her sentence for the felony including any court ordered term of

parole, supervision and probation.”

      Mason waived a jury, and after hearing evidence, the trial judge found her guilty

and sentenced her to five years’ confinement. See id. § 64.012(b); Tex. Penal Code

Ann. § 12.33(a) (providing the range of incarceration for a second-degree felony as

between two to twenty years). Mason filed a motion for new trial, which the trial court

denied after an evidentiary hearing. Mason then filed this appeal.


      6
       He did not elaborate on this concern in the record because the trial court
sustained Mason’s hearsay objection.

                                            9
                           III. Sufficiency of the Evidence

       In her first and second points, Mason challenges the sufficiency of the evidence

to support her conviction. Within her complaint, she raises two statutory-construction

questions that inform the hypothetical jury charge by which we measure evidence’s

sufficiency 7: (1) Does the term “supervision” in Election Code Section

11.002(a)(4)(A), describing who is qualified to vote, include post-imprisonment

supervised release imposed as part of a federal sentence? and (2) Does the word

“vote” in Section 64.012(a)(1) include casting a provisional ballot? We will address

both of these construction questions within the context of her two points. See, e.g.,

Lang v. State, 561 S.W.3d 174, 179 (Tex. Crim. App. 2018); Delay v. State, 465 S.W.3d

232, 235 (Tex. Crim. App. 2014) (“[S]ometimes appellate review of legal sufficiency

involves simply construing the reach of the applicable penal provision in order to

decide whether the evidence, even when viewed in the light most favorable to

conviction, actually establishes a violation of the law.”).

       Although we review sufficiency of the evidence in the light most favorable to

the verdict to determine whether any rational factfinder could have found the crime’s

essential elements beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 316, 319, 99

S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App.

       7
        See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016) (explaining
requisites of hypothetically correct jury charge); Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997) (noting that hypothetical jury charge benchmark against which
to perform sufficiency review “can uniformly be applied to all trials, whether to the
bench or to the jury”).

                                            10
2017), 8 we review these statutory-construction questions de novo, Lang, 561 S.W.3d at

180. Additionally, we must construe criminal statutes outside the penal code strictly,

resolving any doubt in the accused’s favor. State v. Rhine, 297 S.W.3d 301, 309 (Tex.

Crim. App. 2009). But in doing so, we may not ignore a statute’s plain language. State

v. Johnson, 219 S.W.3d 386, 388 (Tex. Crim. App. 2007).

A. Background law and indictment

      Only a “qualified voter” may vote in an election in Texas; individuals convicted

of felonies or other enumerated crimes forfeit the franchise. Tex. Elec. Code

Ann. § 11.001; see Tex. Const. art. VI, § 1(a)(3) (prohibiting convicted felons from

voting “subject to such exceptions as the Legislature may make”), § 1(b) (directing the

Texas Legislature to prohibit persons convicted of “bribery, perjury, forgery, or other

high crimes” from voting). A person convicted of a felony is re-enfranchised in one of

two ways: (1) if the person has “fully discharged the person’s sentence, including any

term of incarceration, parole, or supervision, or completed a period of probation

ordered by any court,” Tex. Elec. Code Ann. § 11.002(a)(4)(A), or (2) if the person




      8
        We use only one standard of review to measure the sufficiency of the State’s
evidence in criminal cases. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010). Although Mason raised both legal and factual sufficiency complaints, she
acknowledges that we apply only one standard of review to our consideration of the
sufficiency of the State’s evidence.

                                          11
has “been pardoned or otherwise released from the resulting disability to vote,”

id. § 11.002(a)(4)(B).9


       9
        Curiously, although in Article VI, Section 1(a)(3) the Texas constitution allows
the legislature to enact conditions for the re-enfranchisement of felons generally,
Article VI, Section 1(b) immediately following it mandates that the legislature
categorically exclude persons convicted of “bribery, perjury, forgery, or other high
crimes” from re-enfranchisement. Tex. Const. art. VI, § 1(b). Section 1(b) was not
originally in Article VI; instead, before voters approved amendments reorganizing the
Texas constitution in 2001, Section 1(b) was included in former Article XVI, Section 2
and read, “Laws shall be made to exclude from office, serving on juries, and from the
right of suffrage, those who may have been or shall hereafter be convicted of bribery,
perjury, forgery, or other high crimes.” The reorganizational amendments voters
approved in 2001 moved Section 1(b) to its current location but did not substantively
change its mandatory language. Thus, it appears that the Texas constitution does not
allow the legislature to re-enfranchise a person convicted of “bribery, perjury, forgery,
or other high crimes.” Nevertheless, the statutory definition of “qualified voter” in the
Election Code does not appear to even acknowledge the absolute constitutional
disenfranchisement for “bribery, perjury, forgery, and other high crimes” convictions.
See also Tex. Att’y Gen. Op. No. KP-0251 (2019) (discussing eligibility of convicted
felons to run for office in Texas after completing their sentences and having their
voting rights restored, without discussing Article VI, Section 1(b)’s mandatory
exclusion of certain felonies). But see Tex. Att’y Gen. Op. No. GA-0141 (2004)
(recognizing distinction).

        In construing the former version of Article XVI, Section 2, the Texas Court of
Criminal Appeals––in Perez v. State, which was handed down before the 2001
constitutional amendments––held that the term “high crimes” as used in that section
did not mean simply all felony convictions but rather crimes of “moral corruption and
dishonesty.” 11 S.W.3d 218, 220–22 (Tex. Crim. App. 2000) (observing that the
former version of Article XVI, Section 2’s absolute exclusion from “office, serving on
juries, and from the right of suffrage” for such crimes has appeared as a distinct
constitutional prohibition, apart from the more general prohibition as to felony
convictions, since 1845); see also Rice v. State, 107 S.W. 832, 833 (Tex. Crim. App. 1908)
(holding that individual finally convicted and sentenced for perjury was absolutely
disqualified from serving on a jury absent gubernatorial pardon); Easterwood v. State, 31
S.W. 294, 296–97 (Tex. Crim. App. 1895) (noting that full gubernatorial pardon
restores constitutionally disqualified individual “to his right of suffrage, and his
competency as a juror”). But see Tex. Const. art. VI, § 1 cmt. (“[T]he constitution of

                                           12
      “A person commits an offense if the person . . . votes or attempts to vote in an

election in which the person knows the person is not eligible to vote.”

Id. § 64.012(a)(1). Texas law has long provided that to prove the commission of this

offense, the State need only show beyond a reasonable doubt that the defendant

voted while knowing of the condition that made the defendant ineligible;10 the State

does not have to prove that the defendant subjectively knew that voting with that

the Republic stipulated that laws were to be passed excluding from the right of
suffrage those who in the future were convicted of bribery, perjury, or other high
crimes and misdemeanors . . . . This stipulation was carried over into the Constitution
of 1845 with some slight changes, the list of crimes reading: bribery, perjury, forgery,
or other high crimes . . . . The same crimes appear in all subsequent constitutions until
the present one in which it was limited solely to felonies.” (emphasis added)).

       In In re Birdwell, also issued before the 2001 constitutional amendments, the
Supreme Court of Texas held that a federal conviction for conspiracy to defraud the
United States in violation of 18 U.S.C.A. § 371 is a crime of moral turpitude that
mandates disbarment under the Texas Rules of Disciplinary Procedure, involving, as it
does, conduct that is deceitful or dishonest. 20 S.W.3d 685, 686–88 (Tex. 2000). Since
Birdwell’s––and Mason’s––indictments and guilty pleas both involved allegations of
tax fraud against the United States by frustrating the Internal Revenue Service’s
lawful, federal-income-tax-related functions, it appears that the Texas Supreme
Court––at least for purposes of the civil law––would consider Mason’s federal
conviction to be for a “high crime,” thus raising the question of whether the legislature
could ever re-enfranchise her via Section 11.002(a)(4)(A) without running afoul of
Article VI, Section 1(b).
      10
         See Tex. Penal Code Ann. § 6.03(b) (providing that a person acts with
knowledge of the circumstances surrounding his conduct when he is aware that the
circumstances exist); cf. Goss v. State, 582 S.W.2d 782, 783–85 (Tex. Crim. App. 1979)
(holding that for duty to stop and render aid to arise––for purposes of prosecution
for failure to stop and render aid under former version of statute––defendant must
have known of the circumstances present when he failed to stop, that is, he must have
known that an accident had occurred; therefore, the mens rea for the offense was
knowing) (cited by Curry v. State, No. PD-0577-18, 2019 WL 5587330, at *4–5 (Tex.
Crim. App. Oct. 30, 2019)).

                                           13
condition made the defendant ineligible to vote under the law or that to vote while

having that ineligibility is a crime. See, e.g., Thompson v. State, 9 S.W. 486, 486–87 (Tex.

Ct. App. 1888);11 Jenkins v. State, 468 S.W.3d 656, 672–73 (Tex. App.––Houston [14th

Dist.] 2015), pet. dism’d, improvidently granted, 520 S.W.3d 616 (Tex. Crim. App. 2017)

(per curiam); Medrano v. State, 421 S.W.3d 869, 884–85 (Tex. App.––Dallas 2014, pet.

ref’d);12 see also Tex. Penal Code Ann. § 8.03(a) (“It is no defense to prosecution that


       11
         As the highest court with criminal jurisdiction before the creation of the
Texas Court of Criminal Appeals, the Texas Court of Appeals’s opinions are
precedential and binding on this court. See Hon. James T. “Jim” Worthen, The
Organizational & Structural Development of Intermediate Appellate Courts in Texas, 1892–
2003, 46 S. Tex. L. Rev. 33, 34–35 (2004) (explaining that Court of Appeals,
predecessor to Court of Criminal Appeals, was added to the judiciary by the 1876
constitution as an addition to the Texas Supreme Court, not as an intermediate court,
but as a court with jurisdiction to hear all criminal appeals from trial courts); Robert
W. Higgason, A History of Texas Appellate Courts: Preserving Rights of Appeal Through
Adaptations to Growth, Part 1 of 2: Courts of Last Resort, 39 Hous. Law. 20, 24 (2002); see
also Dylan O. Drummond, Citation Writ Large, 20 App. Advoc. 89, 96 (2007)
(explaining that opinions of the Texas Court of Appeals between April 18, 1876, and
August 13, 1892, must be accorded the precedential value of the highest court of the
state for criminal matters).

        Neither Mason nor the State cites Thompson, Medrano, Jenkins, or related on-
       12

point authority, which rendered much of the trial testimony superfluous. The
authority Mason relies on to argue that the State had to prove her subjective
knowledge that she was committing a crime is inapposite and does not relieve us of
the duty to follow on-point authority from the higher court. See State ex rel. Vance v.
Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971); Wiley v. State, 112 S.W.3d 173,
175 (Tex. App.––Fort Worth 2003, pet. ref’d).

       For example, Mason relies on the Court of Criminal Appeals’s analysis in Delay
to argue that the State had to prove that she knew being on supervised release made
her legally ineligible to vote. But the different statutes at issue in Delay were
ambiguous; thus, the court of criminal appeals had to engage in a different analysis to
determine the correct mens rea that the State would have to prove for each of them.

                                            14
the actor was ignorant of the provisions of any law after the law has taken effect.”);

Crain v. State, 153 S.W. 155, 156 (Tex. Crim. App. 1913) (rejecting argument that

defendant was entitled to instruction that he could not have been illegally possessing

pistol if he was carrying the cylinder in one pocket but the rest in his other pocket,

explaining, “If appellant only did the acts he intended to do, believing that same was

no violation of law, yet, if in fact such acts were prohibited by law, he would be

punishable, for all persons are presumed to know what the law prohibits one from

doing.”); Heath v. State, No. 14-14-00532-CR, 2016 WL 2743192, at *6 (Tex. App.––

Houston [14th Dist.] May 10, 2016, pet. ref’d) (mem. op., not designated for

publication) (citing Medrano).

      When the Texas Court of Appeals decided Thompson in 1888, the illegal-voting

statute was substantially the same as today’s Section 64.012(a)(1): “If any person

knowing himself not to be a qualified voter, shall, at any election, vote, or offer to


465 S.W.3d at 246–47, 249–51 (construing ambiguous money-laundering statute to
require proof of knowledge of criminal nature of facilitated transaction and construing
Election Code provision prohibiting certain donations by corporations to require, “as
written, . . . that the actor be aware, not just of the particular circumstances that
render his otherwise-innocuous conduct unlawful, but also of the fact that
undertaking the conduct under those circumstances in fact” violates the Election
Code). The statutes in Delay were ambiguous because they placed the “knowingly”
descriptor before both the verb describing the actus reas and the following clause
describing the actus reas; Section 64.012(a)(1) places the word “knows” after the
actus-reas verb and immediately before the word describing the attendant
circumstances––“ineligible.” Thus, what “knows” was intended to describe in Section
64.012(a)(1) is not ambiguous, as was the word placement in the statutes at issue in
Delay. See Tex. Gov’t Code Ann. § 311.011(a) (providing that courts must read words
and phrases according to grammar and common usage rules).

                                          15
vote, for any officer to be then chosen, he shall be punished by confinement in the

penitentiary not less than two nor more than five years.” See Medrano, 421 S.W.3d at

884–85 & n.5 (noting also that the 1879 Penal Code may be accessed on the Texas

State Law Library website). In Thompson, the Texas Court of Appeals held that the

following instruction in an illegal-voting case was proper: “If the defendant had been

convicted of an assault with the intent to murder, as alleged in the indictment in this

cause, and if he knew at the time he so voted that he had been so convicted, such

knowledge of his conviction would be equivalent in law to knowing himself not to be

a qualified voter.” 13 9 S.W. at 486–87. Citing the principle that a person is presumed

to know both the civil and criminal law, the court held that the State did not have to

prove that Thompson knew that voting after being finally convicted of a felony was

illegal. Id. The court concluded,

      [I]f we were to hold the law to be that the state must prove that the
      defendant knew that the offense of which he had been convicted was a
      felony, and that such conviction disqualified him to vote, the effect would be
      that a conviction for illegal voting by persons convicted of felony could
      rarely be obtained, because it would be an exceptional case in which
      such proof could be made.

Id. at 487 (emphasis added).

      In more recent years, the Dallas Court of Appeals followed Thompson in

Medrano––an illegal-voting case under Section 64.012(a)(1) in which the defendant’s

residence was not in the precinct in which she voted––explaining that “the State did

       At the time, the Texas constitution did not authorize the legislature to re-
      13

enfranchise persons convicted of any type of felony. See infra n.16.

                                           16
not need to prove [Medrano] subjectively knew she was not eligible to vote; it needed

only to prove she voted in the March 2010 Dallas County Primary Election when she

knew she was not a resident of the precinct for which she was voting.” 421 S.W.3d at

885. The Houston Fourteenth Court of Appeals likewise relied upon this statement of

law in Jenkins, 468 S.W.3d at 672–73, and Heath, 2016 WL 2743192, at *1–2, *6,

illegal-voting prosecutions under Section 64.012(a)(1) arising from the same election.

Thus, contrary to Mason’s assertion, the fact that she did not know she was legally

ineligible to vote was irrelevant to her prosecution under Section 64.012(a)(1); instead,

the State needed only to prove that she voted while knowing of the existence of the

condition that made her ineligible, in this case––as alleged by the State––that she was

on federal supervised release after being released from imprisonment after a final

felony conviction.

      An illegal-voting defendant’s subjective belief about the law becomes relevant

only if the evidence raises either (1) the affirmative defense of mistake of law, in

which the issue is not whether the defendant simply did not know the conduct was a

crime but that, because of reasonable reliance on an official statement or

interpretation of the law by a statutorily prescribed source, the defendant affirmatively

believed that the conduct was not criminal, see Jenkins, 468 S.W.3d at 671–80

(discussing whether mistake-of-law affirmative defense raised by evidence); see also

Tex. Penal Code Ann. § 8.03(b) (describing mistake-of-law affirmative defense); or

(2) the defense of mistake of fact, in which a factual mistake negates the offense’s

                                           17
mens rea, see Tex. Penal Code Ann. § 8.02; cf. Curry, 2019 WL 5587330, at *7

(explaining that mistake-of-fact defense was raised in failure-to-stop-and-render-aid

prosecution when some evidence showed that defendant knew he was involved in an

accident but mistakenly believed that he had collided with road debris or a beer bottle,

not a person). But some evidence must raise these issues before a factfinder is

required to consider them. See Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App.

2008).

         Based on the foregoing, if casting a provisional ballot constitutes the act of

voting under Election Code Section 64.012(a)(1) and if being on post-imprisonment

supervised release for a federal offense constitutes being on supervision under

Election Code Section 11.002(a)(4)(A), the State here needed to prove only that

Mason voted while knowing she had been finally convicted of a felony and had not

yet completed her supervised release. See Medrano, 421 S.W.3d at 881–85. Mason does

not argue that the evidence failed to show that she knew she was still on supervised

release after her final federal conviction when she cast her provisional ballot. Instead,

she challenges whether Section 11.002(a)(4)(A) and Section 64.012(a)(1) apply to her

circumstances.

B. “Supervision” in Section 11.002(a)(4)(A) includes post-imprisonment
   supervised release imposed as part of a federal sentence.

         As part of her first and second points, Mason argues that a person who has

been convicted by a federal court and thereafter released from confinement to


                                           18
“supervised release” has “fully discharged” his or her federal sentence under Section

11.002(a)(4)(A) because the Texas Legislature meant for the term “supervision” to

apply only to “community supervision” imposed under state law.

      The Texas Code of Criminal Procedure defines a sentence as “that part of the

judgment . . . that orders that the punishment be carried into execution in the manner

prescribed by law.” Tex. Code Crim. Proc. Ann. art. 42.02 (emphasis added). The

plain language of this statute “indicates that a sentence is nothing more than the

portion of the judgment setting out the terms of punishment.” State v. Ross, 953

S.W.2d 748, 750 (Tex. Crim. App. 1997). A legal sentence may include a term of years,

a fine, “the fact of shock or regular probation” (community supervision), and

sentencing enhancements but not (to name but a few) restitution, probation terms, or

court costs. See Burg v. State, No. PD-0527-18, 2020 WL 467589, at *5 (Tex. Crim.

App. Jan. 29, 2020).

      Under federal law, supervised release similarly is part of a convicted person’s

sentence: “The court, in imposing a sentence to a term of imprisonment for a felony

or a misdemeanor, may include as a part of the sentence a requirement that the defendant

be placed on a term of supervised release after imprisonment.” 18 U.S.C.A. § 3583(a)

(emphasis added); see United States v. Pettus, 303 F.3d 480, 482 (2d Cir. 2002)

(“[S]upervised release is part of the whole matrix of punishment arising out of the

original offense . . . .”); cf. United States v. Saleem, Nos. 1:07cr252 (LMB), 1:10cv893

(LMB), 2010 WL 4791654, at *2 (E.D. Va. Nov. 15, 2010) (mem. op.) (rejecting

                                          19
argument that sentence for conviction of conspiracy to defraud the United States does

not and cannot include a term of supervised release). Thus, under federal law, Mason

had to successfully serve her entire period of post-imprisonment supervised release as

part of her punishment.

      The term “supervision” as used in Section 11.002(a)(4)(A) is not defined in the

Election Code. Supervision is likewise not defined in the Code of Criminal Procedure,

but “community supervision” is defined, solely for the purposes of Chapter 42A, as

      the placement of a defendant by a court under a continuum of programs
      and sanctions, with conditions imposed by the court for a specified
      period during which:

      (A) criminal proceedings are deferred without an adjudication of guilt; or

      (B) a sentence of imprisonment or confinement, imprisonment and fine,
      or confinement and fine, is probated and the imposition of sentence is
      suspended in whole or in part.

Tex. Code Crim. Proc. Ann. art. 42A.001(1). For purposes of describing Chapter 42A

status, “community supervision” and “probation” are synonymous and generally used

interchangeably. Hongpathoum v. State, 578 S.W.3d 213, 214 n.1 (Tex. App.—Fort

Worth 2019, no pet.); see Tex. Const. art. IV, § 11A (authorizing the suspension of

imposition or execution of sentence after conviction and placement of the defendant

on “probation”).




                                         20
       Black’s Law Dictionary defines supervision as “[t]he series of acts involved in

managing, directing, or overseeing persons or projects.”14 Supervision, Black’s Law

Dictionary (11th ed. 2019). It defines probation as “[a] court-imposed criminal

sentence that, subject to stated conditions, releases a convicted person into the

community instead of sending the criminal to jail or prison, usu. on condition of

routinely checking in with a probation officer over a specified period of time.”

Probation, id. Black’s further defines parole as “[t]he conditional release of a prisoner

from imprisonment before the full sentence has been served” and notes that “parole

is usu. granted for good behavior on the condition that the parolee regularly report to

a supervising officer for a specified period.” Parole, id.

       Applying normal grammar rules and construction aids to Section

11.002(a)(4)(A)’s phrase, “has not been finally convicted of a felony or, if so

convicted, has . . . fully discharged the person’s sentence, including any term of

incarceration, parole, or supervision, or completed a period of probation ordered by

any court,” we glean two important meanings. First, this subsection contemplates that

under Texas law the punishment for a criminal conviction––a sentence––can consist


       14
         See Tex. Elec. Code Ann. § 1.003(a) (providing that Code Construction Act
applies to Election Code except where expressly stated otherwise); Tex. Gov’t Code
Ann. § 311.011 (providing that, in addition to reading words and phrases according to
grammar and common usage rules, courts must also read them according to any
technical or particular meanings that they have acquired or been assigned); Ex parte
White, 400 S.W.3d 92, 93 (Tex. Crim. App. 2013) (reciting that court construes words
in a statute according to their plain meanings unless those constructions would lead to
absurd results that the legislature could not have possibly intended).

                                             21
of one or a combination of consequences. By introducing the words “incarceration,”

“parole,” and “supervision”––and the phrase “completed a period of probation”––

with the word “including,” the legislature indicated that those things are not an

exhaustive list of what can be included in a sentence. See Tex. Gov’t Code Ann. art.

311.005(13) (“‘Includes’ and ‘including’ are terms of enlargement and not of limitation

or exclusive enumeration, and use of the terms does not create a presumption that

components not expressed are excluded.”). The plain wording of the statute indicates

that whatever modes of punishment––one or more––make up a sentence, they must

all be completed for the person to regain eligibility to vote after a felony conviction.

      Second, in Section 11.002(a)(4)(A), supervision and probation are listed

separately from each other as well as from parole and incarceration. Thus, the

legislature could not have intended supervision and probation to mean the same

thing. See Campbell v. State, 49 S.W.3d 874, 876 (Tex. Crim. App. 2001) (“In analyzing

the language of a statute, we assume that every word has been used for a purpose and

that each word, phrase, clause, and sentence should be given effect if reasonably

possible.”); cf. United States v. Reyes, 283 F.3d 446, 458 (2d Cir. 2002) (explaining that

federal supervised release differs from parole because it does not replace a term of

imprisonment but is imposed in addition to imprisonment). Nor did the legislature

attempt to narrow the meaning of probation or supervision to only those instances in

which Texas state courts impose them. Thus, we conclude that the plain meaning of

supervision as used in Section 11.002(a)(4)(A) does not mean only Chapter 42A

                                            22
community supervision and includes post-imprisonment supervised release ordered

under 18 U.S.C.A. § 3583(a). 15

      The evidence showed that during Mason’s post-imprisonment supervised

release, she had to report to a probation officer immediately upon her discharge from

federal custody, refrain from committing any other crimes during her period of

supervised release, and be subject to taking random drug tests. During that time, she

was subject to the oversight of––supervised by––the United States probation office

for the Northern District of Texas. Thus, Mason’s term of supervised release under

18 U.S.C.A. § 3583(a) was part of her sentence to be served and was included within

the plain meaning of the word supervision in Section 11.002(a)(4)(A). 16


      15
         Because we conclude that the term supervision, as used in Section
11.002(a)(4)(A), is unambiguous, we need not apply the rule of lenity as urged by
Mason. See Tex. Gov’t Code Ann. § 311.035 (providing that a court must construe in
the actor’s favor a statute or rule not included in the Penal Code or Health and Safety
Code “that creates or defines a criminal offense or penalty” if “any part of the statute
or rule is ambiguous on its face or as applied to the case”); Johnson, 219 S.W.3d at 388.
      16
         Although we need not consider the legislative intent of Section
11.002(a)(4)(A), see Lang, 561 S.W.3d at 180, we note that it nevertheless supports our
plain-language conclusion. Historically, absent a pardon, convicted felons were not
authorized to vote in Texas after their convictions became final. See Act approved
Aug. 23, 1876, 15th Leg., R.S., ch. 166, § 13, 1876 Tex. Gen. Laws 306, 307, reprinted in
8 H.P.N. Gammel, The Laws of Texas 1822-1897, at 307 (Austin, Gammel Book Co.
1898); see also Tex. Const. art. VI, § 1, cmt. In Shepherd v. Trevino, 575 F.2d 1110 (5th
Cir. 1978), the Fifth Circuit described the constitutional and statutory framework for
the disenfranchisement and re-enfranchisement of convicted felons in the following
manner:

      (1) any person convicted of a felony in any court, state or federal, is
      automatically disenfranchised; (2) a person convicted of a felony in

                                           23
      Texas state court and placed on probation may have his conviction set
      aside and be reenfranchised by the court in which he was convicted, or
      he may be reenfranchised by gubernatorial pardon; (3) a person
      convicted of a felony in federal court may be restored to suffrage only by
      presidential pardon.

Id. at 1112 (citing Hayes v. Williams, 341 F. Supp. 182, 188 (S.D. Tex. 1972), for the
proposition that the former Election Code re-enfranchisement provision applied to
persons convicted of federal as well as state felonies (“The Court must also reject the
contention that the disability applied to convicted felons in the Texas Constitution
and in the Texas Election Code disqualifies only those persons convicted in a State
court.”)).

       By 1985, when the legislature codified the Election Code, an unpardoned felon
could regain eligibility to vote if the person “received a certificate of discharge by the
Board of Pardons and Paroles or completed a period of probation ordered by a court
and at least two calendar years ha[d] elapsed from the date of the receipt or
completion.” Act of May 13, 1985, 69th Leg., ch. 211, § 1, 1985 Tex. Gen. Laws 802,
811. But cf. R.R.E. v. Glenn, 884 S.W.2d 189, 193 (Tex. App.––Fort Worth 1994, writ
denied) (op. on reh’g) (noting, in determining whether juror convicted of a felony was
disqualified from jury after having successfully completed and been discharged from
probation, that “[n]othing in the Constitution contemplates the full restoration of the
rights of felons other than by executive pardon”). In 1997, the legislature amended
Section 11.002(a)(4)(A) to the current version. See Act of May 26, 1997, 75th Leg.,
R.S., ch. 850, § 1, 1997 Tex. Gen. Laws 2721, 2721 (HB 1001).

        The House Committee Report Bill Analysis for HB 1001––containing Section
11.002––notes that the purpose of the amendment was “[t]o eliminate the confusion
as to when an ex-felon regains the right to vote,” which had arisen because “discharge
papers are issued upon release from a TDCJ facility, however, a person may continue
on parole for some period.” H. Elections Comm., Bill Analysis, Tex. H.B. 1001, 75th
Leg., R.S. (1997). The House Research Organization Analysis notes that supporters of
the amendment urged that “[b]ecause individuals can be in varying stages of the
criminal justice system, there is often uncertainty about when the two year waiting
period begins. Individuals, criminal justice professionals, and election personnel
themselves have been uncertain about when people become eligible to vote.” H.
Research Org., Bill Analysis, Tex. H.B. 1001, 75th Leg., R.S. (1997). Thus, the
legislative history does not reveal an intent to exempt persons convicted of federal
crimes from serving all of their sentences before regaining eligibility. Instead, the
intent was to eliminate confusion about when a convicted person could regain the

                                           24
C. To cast a provisional ballot is to “vote” under Election Code Section
   64.012(a)(1).

       Mason next contends that a person does not “vote” under Section 64.012(a)(1)

by casting a provisional ballot. 17 According to Mason, provisional ballots are not votes

because they may or may not count: “They are conditioned on the eligibility of the

voter.” Thus, Mason argues that because her provisional ballot was rejected, she did

not “vote” under Section 64.012(a)(1). Pertinent to this point, she argues as part of

her fourth point that HAVA requires states to allow individuals who believe they are

eligible to vote to cast a provisional ballot, without fear of criminal prosecution if they

are actually ineligible to vote. 18

       1. Plain meaning of the verb “vote”

       Like the term “supervision” in Section 11.002(a)(4)(A), the verb “vote” is not




right to vote by requiring that person to have first successfully finished every part of
that person’s sentence for the particular offense for which she was convicted. By
eliminating the need for a document that only a Texas institution issued––a certificate
of discharge from the Texas Board of Pardons and Paroles––the legislature further
signaled an intent that the reinstatement of voting eligibility not be limited to
convicted felons discharged from only a state facility.

        Counsel argued at the new-trial hearing, “I think the common meaning of
       17

voting is where you actually affect the election by your choice on a ballot,” and “no
amount of evidence proving that [Mason] cast a provisional ballot while on supervised
release will ever be sufficient to uphold the conviction of illegal voting.”

        Because HAVA informs our construction of the verb “vote” in the Texas
       18

Election Code, we consider it in the context of the Section 64.012 statutory-
construction argument in Mason’s first two points.


                                            25
defined in the Election Code.19 But it is defined in the Penal Code when proscribing

the bribery or coercion of a voter: Penal Code Section 36.01(4) defines the verb

“vote” as meaning “to cast a ballot in an election regulated by law.” Tex. Penal Code

Ann. § 36.01(4). This definition is consistent with the common understanding of the

verb.

        Black’s Law Dictionary defines the verb “vote” as “[t]he act of voting” and

voting as “[t]he casting of votes for the purpose of deciding an issue.” Vote, Voting,

Black’s Law Dictionary. It defines “cast” as “[t]o formally deposit (a ballot) or signal

one’s choice (in a vote).” Cast, id. To cast a ballot, then, is to express one’s choice, i.e.,

to vote. Similarly, Webster’s Third New International Dictionary defines the verb

“vote” as “to express one’s views in response to a poll,” “to express an opinion,” or

“to choose or endorse by vote.” Webster’s Third New Int’l Dictionary 2565 (2002).

By comparison, Black’s defines the noun “vote” as “[t]he expression of one’s

preference or opinion in a meeting or election by ballot, show of hands, or other type

of communication.” Vote, Black’s Law Dictionary.

        Pertinent to a different issue, an intermediate court of appeals has noted that

“[c]ommon definitions of the verb ‘vote’ are ‘[to] express one’s preference for;

endorse by a vote,’ ‘to declare or pronounce by general consent,’ . . . ‘to enact, elect,


         Solely for purposes of Title 14 of the Election Code, Section 221.003 defines
        19

an “illegal vote”––a noun––as “a vote that is not legally countable.” Tex. Elec. Code
Ann. § 221.003.


                                             26
establish, or determine by vote,’ or ‘to declare or decide by general consent.’” Nash v.

Civil Serv. Comm’n, Palestine, 864 S.W.2d 163, 165 (Tex. App.—Tyler 1993, no writ)

(quoting 1970s and 1980s versions of American Heritage and Random House

dictionaries); see also Wooley v. Sterrett, 387 S.W.2d 734, 740 (Tex. App.––Dallas 1965,

no writ) (“Reason and common sense dictate that the verb ‘vote’ carries with it the

implication of affirmative choice by action.”).

       None of these definitions conditions the definition of the verb “vote” on

whether the choice expressed is thereafter counted as part of the poll results. Thus, to

cast or deposit a ballot20––to vote––can be broadly defined as expressing one’s

choice, regardless of whether the vote actually is counted.

       2. HAVA

       Several federal statutes address voting and voting rights, including HAVA.

Congress had several purposes behind HAVA, which it implemented after the 2000

election.21 Fla. Democratic Party v. Hood, 342 F. Supp. 2d 1073, 1076 (N.D. Fla. 2004).

One purpose was to alleviate problems with voters arriving at polling places believing

they are eligible to vote but not being allowed to vote because the election workers


        As we explain below, the Election Code’s provisional-ballot provisions speak
       20

in terms of “casting” such a ballot.

        HAVA is Congress’s attempt to “strike a balance between promoting voter
       21

access to ballots on the one hand and preventing voter impersonation fraud on the
other.” Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1168 (11th Cir.
2008).


                                                  27
could not find their names on the list of qualified voters.22 Sandusky Cty. Democratic

Party v. Blackwell, 387 F.3d 565, 569 (6th Cir. 2004). “HAVA dealt with this problem

by creating a system for provisional balloting, that is, a system under which a ballot

would be submitted on election day but counted if and only if the person was later

determined to have been entitled to vote.” Id. HAVA also required that states wishing

to receive federal funding for updating and improving voting systems implement “in a

uniform and nondiscriminatory manner, a single, uniform, official, centralized,

interactive computerized statewide voter registration list defined, maintained, and

administered at the State level that contains the name and registration information of

every legally registered voter in the State.” 52 U.S.C.A. § 21083(a)(1)(A) (West 2015).


      22
        As one federal court has articulated,

      Provisional ballots are available because election workers do not have
      perfect knowledge on election day; they may not know whether a person
      ultimately will or will not be determined to have been eligible. Affording
      a potential voter a reliable––and enforceable––means of asserting his or
      her right to vote on election day, even if election workers assert the voter
      is ineligible, serves at least three important purposes. First, it tells
      election workers that their decisions are subject to check. . . . Second,
      allowing provisional balloting provides some assurance that eligibility
      determinations have been made correctly. Rather than a hurried decision
      by a volunteer amid the chaos of a busy election day, the result is a
      decision by appropriate officials at a more leisurely pace with greater
      transparency. And third, even if the actual decision with respect to any
      ballot is not changed and the number of votes counted for each
      candidate ultimately remains the same, allowing provisional balloting
      improves the perception that the election has been conducted fairly.

Fla. Democratic Party v. Hood, No. 4:04 CV 395 RH/WCS, 2005 WL 2137016, at *4
(N.D. Fla. Sept. 1, 2005).

                                           28
       By adopting the provisional-voting section of HAVA, Congress sought to

protect the right to vote when voters “appear at the proper polling place and are

otherwise eligible to vote.” See Common Cause Ga. v. Kemp, 347 F. Supp. 3d 1270, 1292–93

(N.D. Ga. 2018) (emphasis added) (citing Hood, 342 F. Supp. 2d at 1078–79). The

person who claims eligibility to vote, but whose eligibility to vote at that time and

place cannot be verified, is entitled under HAVA to cast a provisional ballot, as well as

to have that vote counted if the person is duly registered and eligible. See 52 U.S.C.A.

§ 21082(a)(2), (4) (“If the appropriate State or local election official to whom the

ballot or voter information is transmitted under paragraph (3) determines that the

individual is eligible under State law to vote, the individual’s provisional ballot shall be

counted as a vote in that election in accordance with State law.”). Thus, HAVA

requires that before exercising the right to cast a provisional ballot, a person must

affirm that she is registered and eligible to vote. 23 Id. § 21082(a)(2). This is the only

permissible requirement that may be imposed upon a would-be voter before

permitting that voter to cast a provisional ballot. Sandusky, 387 F.3d at 574. Although


       23
         A person who intentionally or knowingly provides false information in
connection with voting is subject to criminal liability under both federal and Texas
law. See 52 U.S.C.A. § 20511(2) (West 2015) (fine and up to five years’ imprisonment);
Tex. Elec. Code Ann. § 13.007 (class B misdemeanor to knowingly making false
statement on registration application), § 276.013(a)–(b) (Class A misdemeanor to
knowingly or intentionally make any effort to “cause . . . a ballot to be obtained, or a
vote to be cast under false pretenses” or to knowingly or intentionally make any effort
to “cause any intentionally misleading statement, representation, or information to be
provided . . . to an election official[] or . . . on . . . any other official election-related
form or document”).

                                             29
“HAVA is quintessentially about being able to cast a provisional ballot,” whether a

provisional ballot will be counted––i.e., whether the person is a qualified, eligible

voter––is a determination left to the states. Id. at 576–77.

       Thus, HAVA’s provisional-ballot procedure and centralized-voter-registration-

list requirement are intended to prohibit election workers and officials from

preventing an otherwise qualified and eligible voter from voting. But in doing so, it

presumes and does not diminish individual voters’ responsibility to determine if they

are properly registered and eligible to vote under state law, as evidenced by its

affirmation requirement.

       3. Texas Election Code’s implementation of HAVA’s provisional-ballot
          requirement

       In 2003, the Texas Legislature amended the Election Code “to implement”

HAVA. S. Research Ctr., Bill Analysis, Tex. H.B. 1549, 78th Leg., R.S. (2003);

H. Elections Comm., Bill Analysis, Tex. H.B. 1549, 78th Leg., R.S. (2003). Among

other things, the legislature

• mandated that the Secretary of State implement and maintain a statewide

computerized voter-registration list “that serves as the single system for storing and

managing the official list of registered voters in the state” and required the Secretary

of State to include certain information in that list;

• required the Secretary of State to adopt rules for an administrative-complaint

procedure for certain types of voting-related grievances;


                                            30
• provided a procedure for persons to cast provisional ballots and required election

authorities responsible for preparing the official ballots to also prepare provisional

ballots “for use by . . . voter[s] who execute[] a[ statutorily required] affidavit”;

• amended the types of identification acceptable for voting;

• amended the provision making it an offense for an election official to knowingly

permit an ineligible voter to vote “without having been challenged” to exclude

criminal liability when the official allows a voter to cast a provisional ballot in

accordance with the prescribed procedure;

• set forth procedures for handling, delivering, accepting, and disposing of provisional

ballots and for the preservation of records on provisional ballots;

• required voter registrars to treat rejected provisional ballots containing the

information necessary to enable a person to register to vote as registration

applications for future elections;

• required the Secretary of State to implement a system by which a provisional voter

could obtain free information about that vote’s disposition; and

• designated the Secretary of State as the state office to provide information regarding

voter-registration procedures.

Act of May 28, 2003, 78th Leg., R.S., ch. 1315, 2003 Tex. Gen. Laws 4819, 4821–31.

Importantly, the legislature did not amend Section 64.012(a)(1) or Section

11.002(a)(4)(A).



                                             31
       The Election Code procedures for “accepting voter[s]” for voting specifically

address provisional ballots. When “offering to vote” at a polling place, a voter must

present statutorily described photo identification or, upon sworn affidavit subject to

penalty of perjury, substitute identification.24 Tex. Elec. Code Ann. §§ 63.001(b), (i),

63.011(a), (b). If the voter does so, is on the list of registered voters for the precinct,

and the voter’s identity can be verified from the identification, the voter must be

accepted for voting. Id. § 63.001(d). A voter who presents the required identification,

like Mason, but who is not on the list of registered voters for the precinct and cannot

produce a voter-registration certificate, must “be accepted for provisional voting” if

the voter executes a Section 63.011 affidavit. Id. §§ 63.009, 63.011 (providing that a

person “may cast a provisional ballot if the person executes an affidavit stating that the

person . . . is a registered voter in the precinct in which the person seeks to vote;

and . . . is eligible to vote in the election” (emphasis added)). Thus Texas law, in

implementing HAVA, provides a person the statutory right to cast a provisional ballot

with proper identification (or the proper affidavits and follow-up procedures in lieu of

identification) and the required affirmation of registration and eligibility, regardless of

whether the election official knows with certainty that the person is ineligible to vote.




       24
         The voter may also vote provisionally without identification but with the duty
to present statutorily acceptable identification to the voter registrar, or sign a
statutorily prescribed affidavit in the voter registrar’s presence, within six days of the
election. Tex. Elec. Code Ann. §§ 63.001(g), 65.054(b)(2)(B), (C), 65.0541.

                                            32
       The Election Code further explains what happens after a voter is accepted for

voting: “[T]he voter shall select a [provisional] ballot, go to a voting station, and

prepare the ballot.” Id. § 64.001. The Election Code’s instructions for marking ballots

do not distinguish between regular and provisional ballots. Id. §§ 64.003–.006. While a

nonprovisional voter must deposit a ballot “in the ballot box used for the deposit of

marked ballots,” id. § 64.008(a), a provisional voter must enclose the voter’s “marked”

ballot “in the envelope on which the voter’s executed affidavit is printed,” “seal the

envelope,” and deposit it in a box dedicated to provisional ballots, id. § 64.008(b).

Further, “[a]t the time a person casts a provisional ballot under Subsection (b), an

election officer shall give the person written information describing how the person

may use the free access system established under Section 65.059 to obtain information

on the disposition of the person’s vote.” Id. § 64.008(c) (emphasis added), § 65.059.

       Thus, after a voter who is not on the poll list affirms that he or she is registered

and eligible, the Election Code procedures speak in terms of that person’s casting a

provisional ballot, which, as we have explained, is synonymous with “to vote” a

provisional ballot.

       4. Texas’s legislative scheme implementing HAVA does not indicate that
          the verb “vote” in the illegal-voting statute excludes casting a
          provisional ballot.

       Both HAVA and the Texas Election Code contemplate that a provisional voter

will, once accepted for voting, mark a ballot, that is, indicate that voter’s choices on

the provisional ballot. Nothing in Texas’s statutory scheme (which specifically

                                            33
implements HAVA) indicates that a person who otherwise meets the requirements for

provisional voting, fills out and signs an Affidavit of Provisional Voter, is given a

provisional ballot, marks that ballot with the person’s choices for each particular

office, and deposits that ballot into the provisional voting box does not “vote” as

contemplated by Section 64.012(a)(1), the statute under which Mason was convicted.

      Mason argues that the provisional-balloting provisions in Texas shift the

obligation of knowing an individual voter’s legal eligibility to vote away from the voter

to the election officials who after the election must review the provisional ballots for

voter eligibility to determine whether those votes will be counted: “We should know

who’s qualified and who is not qualified to vote. And the way that we find out, or at

least the way that we’re supposed to find out[,] is the provisional ballot.” But by

allowing a person to be criminally prosecuted for voting illegally when that person

does not subjectively know that doing so violates the law, the Texas Legislature has

long placed the primary burden for knowing whether an individual voter is legally

entitled to vote on that individual, as well as (originally) on election officials at the

polling place.25 When Texas ultimately amended the Election Code to implement


      25
        Under the current Election Code, an election officer commits an offense by
knowingly permitting an ineligible voter to vote “other than as provided by Section
63.011,” the provisional-ballot authorization. Id. § 63.012(a)(1). Before the 2003
amendments to the Election Code, the prior version of Section 63.012 made it an
offense for an election official to knowingly permit an ineligible voter to vote
“without having been challenged.” Act of May 13, 1985, 69th Leg., R.S., ch. 211, § 1,
1985 Tex. Gen. Laws 802, 880.


                                           34
HAVA––enacted with a purpose of preventing election officials from turning away

voters at polling places based on those election officials’ subjective beliefs––it took

away the burden and responsibility of confirming a potential voter’s legal eligibility

from the election officials at the polling place. But nothing in the 2003 amendments

to the Election Code or the current version of the Election Code regarding

provisional voting evidences a legislative intent to shift the primary burden (and risk)

of confirming legal eligibility away from the individual voter to the election officials

later charged with reviewing provisional ballots to confirm that voter’s eligibility.

Therefore, whether this primary burden should in the future remain with the

individual voter under Section 64.012(a)(1) is a question for the Texas Legislature.

      We hold that the word “vote” in Section 64.012(a)(1) includes in its plain

meaning the act of casting a provisional ballot. Having determined under a de novo

review that the plain language of Section 11.002(a)(4)(A) and Section 64.012 applies to

Mason’s situation,26 we now apply the Jackson standard to the evidence.

D. Mason’s conviction supported by sufficient evidence

      Here, the indictment alleged that Mason

      [d]id . . . vote in an election in which she knew she was not eligible to
      vote . . . , to-wit: the 2016 General Election, after being finally convicted
      of the felony of Conspiracy to Defraud the United States, in the United
      States District Court of the Northern District of Texas, Fort Worth
      Division, on March 16, 2012, in case number 4:11-CR-151-A(Ol), and
      Defendant had not been fully discharged from her sentence for the

      26
        See supra n.15.


                                           35
      felony including any court ordered term of parole, supervision and
      probation.

The indictment sufficiently tracked the language of the applicable statutes. Id.

§§ 11.002(a)(4)(A), 64.012(a)(1). Thus, the State did not alter the statutory proof

requirements––for purposes of determining a hypothetical jury charge––in the way it

worded the indictment. See Thomas v. State, 444 S.W.3d 4, 8–9 (Tex. Crim. App. 2014)

(explaining that if the State lists only one of multiple manner and means of

committing the offense in the indictment, the hypothetically correct jury charge would

measure sufficiency of the evidence to prove only the charged manner and means);

Malik, 953 S.W.2d at 240 (explaining that measuring sufficiency against hypothetically

correct jury charge “ensures that a judgment of acquittal is reserved for those

situations in which there is an actual failure in the State’s proof of the crime”).

Although much of the State’s questioning and proof at trial focused on whether

Mason subjectively knew that being on supervised release made her legally ineligible

to vote, the State did not plead her subjective belief in the indictment.

      Mason does not dispute that she filled out the Affidavit of Provisional Voter

form, signed it, received a provisional ballot pursuant to her statutory right, went to a

voting machine and selected her preference, and deposited the provisional ballot in

the box marked for it. The evidence also shows that Mason knew she was on

supervised release when she did so. See Thompson, 9 S.W. at 486–87; Jenkins, 468

S.W.3d at 672–73; Medrano, 421 S.W.3d at 884–85. The evidence does not show that


                                           36
she voted for any fraudulent purpose. But the State did not need to prove any motive

for her actions. See Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007)

(noting that motive is not an essential element of an offense that the State must prove

beyond a reasonable doubt); cf. Ortega v. State, No. 02-17-00039-CR, 2018 WL

6113166, at *1 (Tex. App.––Fort Worth Nov. 21, 2018, no pet.) (mem. op., not

designated for publication) (involving prosecution for illegal voting in which

noncitizen, legal permanent resident was able to register and vote twice in Dallas

County even though she truthfully indicated on her registration application that she

was not a United States citizen). And as we have explained, not knowing the law is no

excuse for the conduct prohibited under Election Code Section 64.012(a)(1).

Although Mason may not have known with certainty that being on supervised release

as part of her federal conviction made her ineligible to vote under Texas law or that

so voting is a crime––and although she testified that if she had known she would not

have voted––she voted anyway, signing a form affirming her eligibility in the process

despite the fact that she was not certain and may not have read the warnings on the

affidavit form. Under the plain language of the current law as promulgated by the

Texas Legislature, this evidence is sufficient to prove that she committed the offense

of illegal voting.

       Although Mason’s trial counsel suggested generally that she had made “a

mistake,” Mason has not urged on appeal that the evidence raised either a mistake-of-

law affirmative defense or mistake-of-fact defense or that the trial judge’s implicit

                                          37
rejection of either defensive issue is not supported by the evidence. See Tex. Penal

Code Ann. §§ 2.03(c), 2.04(c), 8.02–.03; Walters v. State, 247 S.W.3d 204, 208–09 (Tex.

Crim. App. 2007); cf. Doyle v. State, No. 09-14-00458-CR, 2016 WL 908299, at *4–6

(Tex. App.––Beaumont Mar. 9, 2016, pet. ref’d) (mem. op., not designated for

publication) (reviewing sufficiency of jury’s rejection of raised mistake-of-law

affirmative defense). Nor do we think that the evidence raised either one of them.

Mason’s claimed lack of knowledge that being on supervised release made her

ineligible––as opposed to an argument that she mistakenly did not know she was on

supervised release––could not have raised a mistake-of-fact defense because a belief

that a proscribed action is not unlawful is not a mistake of fact. See Vitiello v. State, 848

S.W.2d 885, 887 (Tex. App.––Houston [14th Dist.] 1993, pet. ref’d); see also Tex. Penal

Code Ann. § 8.02(a) (providing that defense is available if mistake negates culpable

mental state for offense). And a mistake-of-law affirmative defense is available only

when the defendant acted in reasonable reliance on

       (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). Mason expressly disclaimed relying on the warning

language in the provisional-ballot affidavit, and she has not argued at trial or on appeal

that she relied on an official statement of the law that led her to reasonably believe


                                             38
that she was eligible to vote. Thus, neither a mistake-of-fact defense or a mistake-of-

law affirmative defense would be included in the hypothetically correct jury charge by

which we must measure the evidence’s sufficiency. 27 See Jenkins, 493 S.W.3d at 599; cf.

Tex. Code Crim. Proc. Ann. art. 36.14; Tex. Penal Code Ann. §§ 2.03(c), 2.04(c);

Walters, 247 S.W.3d at 208–09.

      Based on the foregoing, we hold that the evidence is sufficient to support

Mason’s conviction. We therefore overrule Mason’s first two points.

                             IV. No HAVA Preemption

      Mason argues in her fourth point that to the extent Section 64.012(a)(1) allows

her conviction for submitting a provisional ballot, it is preempted by HAVA through



      27
         But even if some evidence could be considered to raise a mistake-of-law
affirmative defense––if the trial judge could have reasonably inferred from the
evidence that Mason had read the warnings and if the warnings themselves could be
construed as a possible grant of permission by the Secretary of State for purposes of
raising the affirmative defense––all of the evidence nevertheless supports a conclusion
that Mason did not prove that affirmative defense because the judge could have
believed that reliance on the affidavit’s warnings to claim eligibility would have been
unreasonable. See Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) (providing
standard of review for factfinder’s rejection of a raised affirmative defense). The
warnings make clear that a convicted felon must meet certain conditions before being
allowed to vote, and even though the articulation of those conditions in the
affirmation did not track the statute exactly, at the very least they should have served
their purpose of warning Mason that as a convicted felon, she could still have a legal
impediment to voting. See Doyle, 2016 WL 908299, at *5–6 (holding that factfinder
could have determined that voter’s reliance on Attorney General opinion was
unreasonable when the opinion clearly explained the residency requirements for
voting); Cook v. State, No. 09-14-00461-CR, 2015 WL 7300664, at *4–5 (Tex. App.––
Beaumont Nov. 18, 2015, pet. ref’d) (mem. op., not designated for publication)
(same).

                                          39
the Supremacy Clause of the United States Constitution28 and thus of no effect.

Although the State correctly points out that Mason did not raise this issue in the trial

court, to the extent that the reasoning of Gutierrez v. State, 380 S.W.3d 167, 173–79

(Tex. Crim. App. 2012), 29 applies, we address her argument.

      The Supremacy Clause mandates that when federal and state law conflict,

federal law prevails. U.S. Const. art. VI, cl. 2; Murphy v. NCAA, 138 S. Ct. 1461, 1476

(2018). And regulations enacted under Congress’s properly exercised power under the

Elections Clause supersede those of the State that are inconsistent. Arizona v. Inter

Tribal Council of Ariz., Inc., 570 U.S. 1, 9, 133 S. Ct. 2247, 2253–54 (2013). Under the

Supremacy Clause, Congress’s purpose in enacting a law is “the ultimate touchstone”

in a preemption case, Wyeth v. Levine, 555 U.S. 555, 565, 129 S. Ct. 1187, 1194 (2009),

and we presume that Congress did not intend to preempt state law unless Congress

clearly and manifestly indicated its intent to do so. Maryland v. Louisiana, 451 U.S. 725,

746, 101 S. Ct. 2114, 2129 (1981); Knox v. Brnovich, 907 F.3d 1167, 1173–74 (9th Cir.


      28
        In her reply brief, she also references the Elections Clause of the United
States Constitution. U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof; but the Congress may at any time by Law make or alter
such Regulations, except as to the Places of chusing Senators.”).
      29
         Gutierrez addressed––despite “ordinary principles of waiver or procedural
default”––an unpreserved complaint that a community supervision condition
“invade[d] a federal prerogative[] in violation of the Supremacy Clause” because a
defendant cannot agree to a condition “that the criminal justice system simply finds
intolerable and which is, therefore, by definition, not even an option available to the
parties.” 380 S.W.3d at 175–77.

                                           40
2018). But such a presumption does not apply to a preemption analysis when

Congress has acted pursuant to the Elections Clause; in that case, “the reasonable

assumption is that the statutory text accurately communicates the scope of Congress’s

pre[]emptive intent.” Inter Tribal Council, 570 U.S. at 14, 133 S. Ct. at 2257 (holding

that Arizona law requiring voter registration officials to reject registration application

when not accompanied by a state-promulgated citizenship form in addition to form

promulgated by federal Election Assistance Commission that NVRA requires states to

“accept and use” was preempted by NVRA). Although the Elections Clause

empowers Congress to regulate how federal elections are held, it does not authorize

Congress to determine voter qualifications, that is, who can vote. See id. at 16–17, 133

S. Ct. at 2257–58.

      Congress’s intent to preempt state law may be explicit or implicit. Barnett Bank

of Marion Cty., N.A. v. Nelson, 517 U.S. 25, 31, 116 S. Ct. 1103, 1107–08 (1996); Knox,

907 F.3d at 1174. Implicit conflict preemption occurs when compliance with both

state and federal law is impossible or the state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.”

Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 377, 135 S. Ct. 1591, 1595 (2015) (quoting

California v. ARC Am. Corp., 490 U.S. 93, 100, 109 S. Ct. 1661, 1665 (1989)); Knox, 907

F.3d at 1175. The second circumstance can occur if a state law, although attempting

to achieve the same goal as a federal law, enacts an enforcement method that conflicts

with the intended federal regulatory system for the federal law, thus “interfer[ing] with

                                           41
the careful balance struck by Congress.” Arizona v. United States, 567 U.S. 387, 406,

132 S. Ct. 2492, 2505; Knox, 907 F.3d at 1175. But when Congress has not created a

comprehensive federal program of enforcement for federal legislation, the state has

the “authority to pass its own laws on the subject.” Arizona, 567 U.S. at 404, 132 S. Ct.

at 2503; Knox, 907 F.3d at 1175.

       Mason contends that the purpose of HAVA’s provisional-balloting procedure

was to shift the burden of determining a voter’s eligibility under state law away from

that voter to the state officials who determine after the election whether that

provisional ballot should count. She claims that “HAVA is designed to permit people

who are unsure of their eligibility to cast a ballot that will be counted only if that

person is later determined, in fact, to be eligible.”

       Although states generally retain the power to regulate their own elections,

Burdick v. Takushi, 504 U.S. 428, 433, 112 S. Ct. 2059, 2063 (1992), “Congress has

erected a complex superstructure of federal regulation atop state voter-registration

systems,” Inter Tribal Council, 570 U.S. at 5, 133 S. Ct. at 2251. HAVA is part of this

superstructure. See Richard F. Shordt, Not Registered to Vote? Sign This, Mail It, and Go

Hire a Lawyer, 78 Geo. Wash. L. Rev. 438, 444–48 (2010). HAVA applies only to

federal elections and expressly leaves “[t]he specific choices on the methods of

complying with the requirements of” the subchapter on election technology and

administration, including voter-registration-list maintenance, “to the discretion of the

State.” 52 U.S.C.A. §§ 21082, 21085 (West 2015); Broyles v. Texas, 618 F. Supp. 2d 661,

                                             42
692 (S.D. Tex. 2009), aff’d, 381 Fed. App’x 370 (2010); see Shordt, supra, at 450 (“The

NVRA and HAVA did not nationalize the registration process.”).

       In HAVA, Congress did not expressly evidence an intent to preempt all state

laws regarding voter registration, types of ballots allowed, or criminal liability for

illegal voting. To begin with, HAVA’s requirements are expressly conditioned on a

State’s voluntarily accepting federal funding for voting systems improvement. 52

U.S.C.A. § 20901 (West 2015). Texas did accept that funding and amended its election

laws for the purpose of complying with HAVA. Thus, HAVA requires Texas to use

the funds consistently with federal election laws, including the NVRA, and expressly

prohibits the state from using the funds inconsistently “with the requirements of

subchapter III,” entitled Uniform and Nondiscriminatory Election Technology and

Administration Requirements, in which the provisional-balloting procedure is

established. Id. §§ 20901(c), 21082, 21145 (West 2015). But, again, nothing in the

NVRA or Subchapter III of HAVA expressly preempts a state from imposing

criminal liability for a person’s voting, regularly or provisionally, while ineligible. Thus,

we must consider whether Texas’s prosecution of a provisional voter like Mason

under its illegal-voting statute creates an obstacle to the accomplishment and

execution of Congress’s full purposes and objectives under HAVA.

       Like the NVRA, one of HAVA’s main purposes was to increase voter

registration and participation of eligible voters by reducing unnecessary procedural,

administrative, and technical obstacles to voting. See Shordt, supra, at 444–48; see also

                                             43
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 192, 128 S. Ct. 1610, 1617 (2008) (“In

the [NVRA] Congress established procedures that would both increase the number of

registered voters and protect the integrity of the electoral process.” (citation omitted)).

HAVA expanded upon the NVRA’s attempt to enhance states’ voter-registration-list

maintenance procedures by adding additional restrictions on when names can be

purged from voter rolls. See Shordt, supra, at 448; see also 52 U.S.C.A. § 21083(a)(2).

But HAVA “does not impose any federal standards on voter registration or voter

eligibility, both of which remain state decisions.” Browning, 522 F.3d at 1170.

Furthermore, HAVA expressly requires a provisional voter to affirm that the voter is

both registered and eligible under state law––thus placing that person at risk of federal

and state criminal liability if the information is false. 52 U.S.C.A. § 21082(a); see 52

U.S.C.A. § 20511(2) (West 2015); Tex. Elec. Code Ann. §§ 13.007, 276.013(a)–(b).

      We conclude that Congress did not evidence an explicit or implicit intent in

HAVA’s mandated provisional-ballot procedure to preempt state laws that allow

illegal-voting prosecutions of persons who are ineligible under state law, nor did

Congress, in enacting HAVA, intend to place the burden to determine a voter’s state-

law eligibility to vote solely on the state officials later charged with counting

provisional ballots. Rather, HAVA’s provisional-ballot system was created to assist

voters who would otherwise be eligible under state law in registering to vote and to

facilitate eligible persons’ right to vote without being turned away at the polls by



                                            44
election officials.30 Here, the election workers in this case did not turn Mason away

when they could not find her name on the list of registered voters and instead

complied with HAVA’s and the Texas Election Code’s requirements to offer her a

provisional ballot so long as she affirmed––as required by both HAVA and the Texas

Election Code––that she was registered and eligible to vote.

       Because we conclude that HAVA’s provisional-ballot procedure does not

preempt Mason’s prosecution under state law, we overrule Mason’s fourth point.

                         V. Ineffective Assistance of Counsel

       In her fifth point, Mason contends that her trial counsel was ineffective for

several reasons: (1) failing to move to quash the indictment; (2) failing to move for a

directed verdict; (3) failing to present evidence of her lack of knowledge and intent;

(4) failing to “explore” (i.e., ask follow-up questions concerning) election judge

Dietrich’s potential bias against her; and (5) having an actual conflict of interest.




       30
         During his testimony, Dietrich indicated that he had attempted to confirm
Mason’s registration status by looking her up in the online voter database. Although
he was unable to find her name in the database and thus confirm her as a registered
voter, Dietrich did not call the TCEA to access Mason’s registration history, as he had
with another ineligible voter that day whose name he was able to find in the database
(and to whom he was therefore able to communicate the reason for his ineligibility––
that although he was registered, he had not registered at least thirty days before the
election). Had Mason’s name been in the database, thus prompting Dietrich to call the
TCEA, its representative presumably would have been able to give him the same type
of information from TCEA’s computerized voter-registration system––that Mason’s
registration had been cancelled because she was on the “SOS Felon List.”

                                            45
A. Preservation

      The State contends that Mason preserved only the two ineffective-assistance

complaints that she included in her motion for new trial, citing cases in which the

appellate complaint was whether the trial court erred in its ruling on a new-trial

motion. See State v. Arizmendi, 519 S.W.3d 143, 150–51 (Tex. Crim. App. 2017); State v.

Moore, 225 S.W.3d 556, 569–70 (Tex. Crim. App. 2007); Hamilton v. State, 804 S.W.2d

171, 174 (Tex. App.––Fort Worth 1991, pet. ref’d). But an appellant may raise an

ineffective assistance complaint, outside of the new-trial context, for the first time on

appeal. See Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000); Reyes v. State,

361 S.W.3d 222, 232 (Tex. App.––Fort Worth 2012, pet. ref’d). Accordingly, we will

review all of Mason’s appellate complaints of ineffective assistance.

B. First through fourth alleged ineffective grounds

      1. Standard of review

      To establish ineffective assistance, an appellant must prove by a preponderance

of the evidence that her counsel’s representation was deficient and that the deficiency

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An appellate

court may not infer ineffective assistance simply from an unclear record or a record

that does not show why counsel failed to do something. Menefield v. State, 363 S.W.3d

591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App.

2007). Trial counsel “should ordinarily be afforded an opportunity to explain his

                                           46
actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial

counsel did not have that opportunity, we should not conclude that counsel

performed deficiently unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Nava, 415 S.W.3d at 308. Direct appeal

is usually inadequate for raising an ineffective-assistance-of-counsel claim because the

record generally does not show counsel’s reasons for any alleged deficient

performance. See Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813–14.

       2. Failure to move to quash indictment

       Mason contends that her trial counsel should have moved to quash the

indictment because the indictment alleges conduct not prohibited by the statute, i.e.,

“voting while under court ordered parole or supervision.” [Emphasis added.] She

contends that because Section 11.002(a)(4)(A) specifies a court order only for

probation––by requiring that the person must have “fully discharged the person’s

sentence, including any term of incarceration, parole, or supervision, or completed a

period of probation ordered by any court”––the statute does not contemplate court-

ordered supervision as part of a sentence that must be completed before a felon

regains the right to vote.

       Mason is arguing, in essence, that the statute precludes court-ordered

supervised release from disqualifying someone from regaining the right to vote under




                                          47
Section 11.002(a)(4)(A); thus, the indictment failed to allege an offense.31 But as we

have explained, the statute disqualifies a convicted felon from voting if she has not

completed her entire “sentence.” Courts impose sentences, including federal

supervised release. See Tex. Code Crim. Proc. Ann. arts. 42.01, § 1, 42.02; see also 18

U.S.C.A. § 3583(a). It would be contrary to the statute’s plain meaning to construe it

otherwise. See Campbell, 49 S.W.3d at 876; cf. Tapps v. State, 294 S.W.3d 175, 177 & n.10

(Tex. Crim. App. 2009) (reciting basic principle that courts stray from statute’s literal

text only when not doing so would lead to absurd consequences). Thus, we conclude

that trial counsel was not deficient for failing to challenge the indictment on this basis.

       3. Failure to move for directed verdict

       Mason also argues that her counsel was ineffective for failing to move for a

directed verdict. Because we have already held that the evidence is sufficient to

support the trial court’s guilt finding, we likewise hold that trial counsel was not

ineffective for failing to move for a directed verdict. See Williams v. State, 937 S.W.2d

479, 482 (Tex. Crim. App. 1996) (holding that a challenge to a trial court’s ruling on a

directed verdict motion is a challenge to the sufficiency of the evidence to support

conviction); Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990); see also


       31
          An indictment must state facts that, if proved, show a violation of the law; if
it does not, the court must dismiss the indictment. See Posey v. State, 545 S.W.2d 162,
163 (Tex. Crim. App. 1977); Rotenberry v. State, 245 S.W.3d 583, 586 (Tex. App.––Fort
Worth 2007, pet. ref’d); see also Tex. Code Crim. Proc. Ann. art. 21.01 (defining
indictment as a grand jury’s written statement accusing a person of an act or omission
that is a legal offense).

                                            48
Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (holding counsel is not

required to engage in the filing of futile motions); Carreon v. State, No. 04-18-00415-

CR, 2019 WL 3805507, at *4 (Tex. App.—San Antonio Aug. 14, 2019, no pet.) (mem.

op., not designated for publication) (holding trial counsel not deficient for failing to

request a directed verdict after determining that conviction supported by sufficient

evidence); Zarnfaller v. State, No. 01-15-00881-CR, 2018 WL 3625618, at *20 (Tex.

App.––Houston [1st Dist.] July 31, 2018, no pet.) (mem. op., not designated for

publication) (same).

      Moreover, the record in this case does not indicate why trial counsel did not

move for a directed verdict. Without evidence providing trial counsel’s explanation

for not doing so, we cannot conclude that counsel was deficient. See Thompson, 9

S.W.3d at 813–14.

      4. Failure to present evidence of lack of knowledge and intent

      Mason contends her trial counsel was ineffective for failing to call additional

witnesses to testify to her lack of subjective knowledge and intent to vote illegally.

But, as we have explained, her subjective knowledge that voting while on post-

imprisonment supervised release was illegal is irrelevant to her conviction. Thus, we

likewise hold that counsel was not deficient for failing to call additional witnesses to

show her lack of knowledge and intent.




                                          49
       5. Failure to explore Dietrich’s alleged bias

       Mason further contends that her trial counsel was ineffective for failing to

question Dietrich “about his improper communication with the court” after the trial

judge informed the parties at the close of Dietrich’s testimony that he knew Dietrich

personally and that he had seen Dietrich “at the Republican conv[en]tion for Senate

District 10,” where Dietrich told the trial judge “that . . . [he] was going to see him.”

But the trial judge explained that he “didn’t know [in] what context” he would be

seeing Dietrich. Mason’s trial counsel did not object or ask to question Dietrich

further. He told the judge, “I understand. I have no problem with that.”

       According to Mason, Dietrich––her neighbor––knew her well and knew she

had gone to prison but nevertheless allowed her to fill out a provisional ballot without

raising any concern with her about her ineligibility to vote; instead, he “waited a few

days and contacted the District Attorney.” She appears to argue that had trial counsel

questioned Dietrich about the encounter, he could have uncovered evidence that

Dietrich was biased against Mason and had an improper motive to report her and

testify untruthfully against her. 32

       Dietrich did not testify at the evidentiary hearing on the motion for new trial.

But the State had already questioned him on redirect at trial about his reporting of

Mason. According to Dietrich, he had no reason to suspect when Mason voted that

       32
         Mason’s inference is that Dietrich had attempted to improperly influence the
trial judge and therefore must have had a bias in favor of prosecuting and convicting
her.

                                           50
she was a convicted felon or was on supervised release and could not vote for that

reason; he knew that she “had had something previously, but it was a long time ago,

and [he] wasn’t even sure whether there had been a conviction.” 33 After Mason voted,

a worker at the polling place told Dietrich that he was concerned about Mason’s

voting, prompting Dietrich to call the Tarrant County District Attorney’s office the

day after the election. When asked if he would have turned Mason away if he had

known of her ineligibility, Dietrich said that his training gives him three choices––to

let the person vote normally if the person is on the registered voters list and has a

valid driver’s license, to direct that person to the correct polling location if the person

is in the wrong one based on her residence address, or to allow the person to vote

provisionally.

       At the new-trial hearing, Mason’s trial counsel testified that Dietrich was on the

witness list; that he had read the names of all the witnesses to Mason before trial and

she did not say she knew Dietrich; and that when Dietrich testified, she wrote counsel

a note to say that Dietrich was her neighbor. Counsel said that when the judge told

the attorneys about his interaction with Dietrich, the judge was “open about it,” and

counsel did not think “the judge ever said he [had] discussed [the case] with” Dietrich.

He did not ask any follow-up questions because the interaction did not disqualify the

judge and it was not relevant to the defense.


       At the time of the election, Dietrich had recently returned from a military tour
      33

of Afghanistan.

                                            51
      Mason contends that Dietrich’s “motive to color the truth of his testimony in a

highly political case such as this one is absolutely central to [her] defense.” Mason’s

defense was that she did not know she was ineligible to vote; part of that defense was

to show that she had not read the affidavit before she signed it. The only significant

differences between Mason’s testimony and Dietrich’s had to do with whether he

helped her fill out the provisional ballot (his testimony) or whether another worker

did (Mason’s testimony) and with whether he was lying when he said Mason

“appeared” to read the affidavit language admonishing of the eligibility requirements

before she signed the Affidavit of Provisional Voter.34 But as we have said, the law

does not require that Mason have had subjective knowledge that she was legally

ineligible to vote, only that she knew she was still on supervised release when she

voted. Mason herself testified that she had signed the affidavit form and cast a

provisional ballot. Moreover, the worker who alerted Dietrich to the fact that Mason

could have improperly voted testified at trial that Mason voted provisionally, that he

watched Mason looking at the form, and that he saw “[h]er finger watching[35] each

line making sure she read it all.” Thus, whether Dietrich had an improper motive to

allow Mason to vote, to testify that he thought she had read the affidavit, or to alert

the District Attorney’s office that she had voted would not have affected Mason’s

       He had testified at trial that he thought she had read the affidavit because she
      34

“paused and took some number of seconds to look over” the left side of the affidavit
form––the side with the eligibility warning.
      35
        We assume he meant “following” each line.

                                          52
defense. We conclude that counsel was not ineffective for failing to question Dietrich

further after the trial judge’s disclosure.

C. Actual conflict of interest

       Finally, Mason argues that her trial counsel had an actual conflict of interest

requiring a new trial.

       1. Standard of review specific to attorney–client conflicts claims

       An attorney’s conflict of interest may result in the denial of a defendant’s right

to effective assistance of counsel. Acosta v. State, 233 S.W.3d 349, 352–53 (Tex. Crim.

App. 2007). To prevail on a conflicts-based ineffective-assistance claim, an appellant

must show (1) that an actual conflict of interest existed and, (2) in most

circumstances, that it “actually colored counsel’s actions during trial.” Odelugo v. State,

443 S.W.3d 131, 136 (Tex. Crim. App. 2014) (citing Cuyler v. Sullivan, 446 U.S. 335,

100 S. Ct. 1708 (1980)). When a trial judge knows or reasonably should know that a

“particular conflict” exists, such as when an attorney or party brings the matter to the

judge’s attention, the judge must adequately inquire whether the risk that the conflict

could adversely affect counsel’s representation warrants new counsel; this duty is not

triggered if the judge “is aware of [only] a vague, unspecified possibility of conflict.”

Mickens v. Taylor, 535 U.S. 162, 168–69, 122 S. Ct. 1237, 1242 (2002) (citing Cuyler, 446

U.S. at 347–48, 100 S. Ct. at 1717–18). Thus, two conflicts-based ineffective-

assistance complaints are possible: (1) that the trial court did not conduct an adequate

investigation into whether an actual conflict created enough risk of affecting counsel’s

                                              53
representation that new counsel was necessary or (2) that an actual conflict adversely

affected counsel’s representation. See Johnson v. State, 583 S.W.3d 300, 313–17 (Tex.

App.––Fort Worth 2019, pet. ref’d) (reviewing whether actual conflict existed but

declining to review adequacy of trial court’s inquiry because not raised on appeal);

Orgo v. State, 557 S.W.3d 858, 862 (Tex. App.––Houston [14th Dist.] 2018, no pet.)

(holding that trial court adequately inquired into potential conflict and that no actual

conflict existed). Mason has raised the second type of complaint.

      An actual conflict of interest exists when counsel must choose between

“advancing his client’s interest in a fair trial or advancing other interests (perhaps

counsel’s own) to the [client’s] detriment.” Odelugo, 443 S.W.3d at 136; Acosta, 233

S.W.3d at 355. Mason’s argument at trial and on appeal is that counsel had an actual

conflict because he had represented her in the federal case, he knew he had told her

then that she was ineligible to vote, and he was therefore a fact witness as to the

truthfulness of her subjective belief on November 8, 2016, that she could vote.

      2. No actual conflict of interest

      Trial counsel testified at the new-trial hearing that he had told Mason when she

was deciding whether to plead guilty to the federal offense that she would not be able

to vote after her conviction. But he had no idea whether she remembered that

conversation four years later when she actually voted. Despite Mason’s appellate




                                          54
counsel’s36 best efforts to equate trial counsel’s telling Mason in 2012 that she would

not be able to vote after her conviction with knowledge that Mason was actually

aware in 2016 that she could not vote, appellate counsel elicited no evidence that trial

counsel knew that Mason actually remembered in 2016 what he had told her in 2012.

      Regardless, trial counsel’s knowledge that he had told her in 2012 that she

would not be able to vote after being convicted of a felony was not relevant to her

defense that in 2016 she did not know that being on supervised release made her

ineligible under the law––a defense that was not based on the statute, which as we

have explained does not require the State to show a defendant’s subjective knowledge

of the law absent evidence raising a mistake-of-law affirmative defense. Thus, Mason

has not shown that her trial counsel was laboring under an actual conflict of interest.

D. No deficient performance

      Having found no support in the record for Mason’s claims of deficient

performance by her trial counsel, we overrule her fifth point contending that we

should reverse her conviction because her trial counsel was ineffective. See Strickland,

466 U.S. at 697, 104 S. Ct. at 2069 (noting that we need not address both parts of the

test if the appellant makes an insufficient showing on one component).




      36
        Mason’s lead appellate counsel filed and argued her motion for new trial.


                                           55
                VI. Void-for-Vagueness Complaint Not Preserved

       Mason argues in her third point that Section 64.012(a)(1) is unconstitutionally

vague as applied under the United States Constitution. But this complaint must have

been timely raised in the trial court for us to be able to consider it on appeal. See

Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App. 2014). Mason raised the

unconstitutional-vagueness complaint in an untimely amended motion for new trial,

which she withdrew after the State objected to its untimeliness. Thus, under well-

established rules of procedural default, we may not review this complaint. See

Arizmendi, 519 S.W.3d at 150 (noting that although a motion for new trial may be

amended any time within thirty days after sentence is imposed or suspended in open

court, “the trial court is barred from considering a ground raised outside the thirty-day

period if the State properly objects”); Moore, 225 S.W.3d at 570. We overrule Mason’s

third point.

                                   VII. Conclusion

       The decision to prosecute is, in most cases, beyond this court’s capacity to

review. See Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 1530 (1985)

(noting that the government retains broad discretion to decide who it will prosecute

so long as the prosecutor has probable cause to believe that the accused committed an

offense defined by statute). Likewise, ours is not to question an unambiguous statute’s

wisdom but rather to apply it as written. See, e.g., Jones v. Del Anderson & Assocs., 539



                                           56
S.W.2d 348, 351 (Tex. 1976). Accordingly, having addressed and overruled all of

Mason’s properly preserved points, we must affirm the trial court’s judgment.


                                                    /s/ Wade Birdwell

                                                    Wade Birdwell
                                                    Justice

Publish

Delivered: March 19, 2020




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