                                       In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-14-00461-CR
                              ____________________

                  ROBERTA MARGARET COOK, Appellant

                                         V.

                   THE STATE OF TEXAS, Appellee
____________________________________________________________________

                 On Appeal from the 359th District Court
                      Montgomery County, Texas
                    Trial Cause No. 12-03-02585 CR
____________________________________________________________________

                           MEMORANDUM OPINION

      A jury convicted Roberta Margaret Cook of illegal voting and the trial court

sentenced Cook to three years in prison, but suspended imposition of sentence and

placed Cook on community supervision for five years. Cook presents five appellate

issues challenging her conviction. We affirm the trial court’s judgment.

                                    Background

      James Stilwell, an attorney, testified that The Woodlands Road Utility District

(“the RUD”) directors hired him to contest a May 2010 election. According to

                                          1
Stilwell, the two voters who resided inside the RUD voted early. On election day,

however, ten more voters cast ballots, including Cook. Stilwell testified that Cook’s

voter registration, dated approximately one month before the election, identified The

Woodlands Marriott Residence Inn (the “Inn”) as her residence and a location in

Conroe, Texas, as her mailing address. Stilwell testified that Cook is not taxed by

the RUD, does not reside within RUD, applied for a homestead exemption on her

Conroe property in 2006, never spent the night at the Inn during 2010, and listed her

Conroe address on her driver’s license. Stilwell testified that he visited Cook’s

Conroe home shortly after the election, and the home contained everything he

expected for a home in which someone actively lived.

      Phil Grant, the first assistant for the Montgomery County District Attorney’s

Office, testified that he drafted a letter in which he cautioned registered voters

against illegal voting. He explained that his office received a complaint alleging

fraudulent voter registration, which caused concern that the newly registered voters

intended to vote in the election when they did not actually reside in the RUD. The

letter was sent to every registered voter in the RUD and was intended to “encourage

them to review the relevant statutes . . . on voter registration and where you could

vote and encourage them to vote appropriately.” He testified that it would be

“problematic” if Cook voted but had never stayed at the Inn.

                                         2
      Adrian Heath testified that he received Grant’s letter, but did not interpret the

letter as an instruction to refrain from voting in the election. He testified that the

letter referenced opinions from the Texas Secretary of State and the Texas Attorney

General, which Heath provided to other voters at a meeting. Heath testified that

when he changed his voter registration, he had never stayed at the Inn, his home is

located outside the RUD, and he is not taxed by the RUD. On the night before the

election, Heath stayed at the Inn. He recalled seeing Cook at the Inn that night and at

the election the next morning.

      Richard McDuffee testified that he participated in a scheme to vote in the

election. McDuffee explained that the “idea was to get ten or more to change their

voting registration to inside of the district to vote in the upcoming election.” He

knew that the Inn was not his residence both when he changed his voter registration

and when he voted. McDuffee was also a candidate in the election, and he testified

that he was told to get elected and shut down the RUD. He testified that no one

planned to move into the Inn and no one left their homes to move into the Inn.

McDuffee acknowledged receiving Grant’s letter before the election, which he

perceived as a warning against voting in the election. McDuffee testified that when

he voted, he was apprehensive and unclear on the legality of the vote, but he

believed the possibility of being prosecuted was low.

                                          3
      Peter Goeddertz, who also voted in the election, testified that the voters

believed they were acting legally when they applied for new voter registration cards.

He testified that he was unaware that he voted illegally. Goeddertz reviewed

opinions from the Texas Attorney General and the Texas Secretary of State

regarding residency and felt that he met the qualifications for voting. Goeddertz

stayed at the Inn on the night of the election. He recalled seeing Cook on the day of

the election. After the election, he returned to his home in Magnolia, Texas, with no

intention of returning to the Inn.

      James Doyle, Cook’s father, testified that he attended a meeting at which

Heath did most of the presenting, and he received copies of the two agency opinions,

which he reviewed and discussed with Cook. He testified that Cook never attended

the meetings with other group members. Doyle testified that he resides in Conroe

and although he did not change his address, he encouraged Cook to change her voter

registration, and he went with Cook to the Inn on the night before the election.

Doyle testified that he and Cook did not spend the night. He testified that Cook went

to the Inn on election day, but returned to her home in Conroe after voting.

According to Doyle, Cook never spent the night at the Inn before the election. He

testified that he would not have encouraged Cook to vote if he knew it was illegal.




                                          4
      Sybil Doyle, Cook’s mother, testified that she lives in Conroe but changed her

voter registration to the Inn. She testified that she went to the Inn the night before

the election but did not spend the night, and she returned with Cook on election day.

She never returned to the Inn after voting. She has since voted based on her address

in Conroe. Sybil testified that she had reviewed the Texas Secretary of State and

Texas Attorney General opinions and believed she voted legally.

      Cook testified that she knew she was not eligible to vote in the election based

on her Conroe residence. When she changed her voter registration, she had never

been to the Inn and she had no intention of leaving her home in Conroe. She testified

that she lived at the Conroe residence when she signed her voter registration

application and when she voted. She went to the Inn on the night before the election

and stayed for about an hour. She returned to the Inn on election day. After voting,

she had no intention of returning to the Inn. She testified that the sole purpose of

changing her voter registration was to vote in the election, not to live at the Inn.

Cook did not recall receiving Grant’s letter. She reviewed the Texas Attorney

General and Texas Secretary of State opinions on the night before the election. She

also discussed her questions regarding the residency issues with Doyle. Cook

testified that she believed she voted legally.




                                            5
      According to Goeddertz and McDuffee, when the election became contested,

they returned to the Inn to take photographs with other voters and have mail

forwarded to the Inn. Once the election contest ended, they returned to their

residences outside the RUD. James Doyle testified that he also went to the Inn a few

times after the election but Cook did not.

                             Motion to Quash Indictment

      In issue one, Cook challenges the denial of her motion to quash because,

according to Cook, the Texas Election Code’s definition of “residence” is indefinite

and circular.1 The indictment alleged that Cook voted in an election in which she



      1
        Cook asks us to take judicial notice of (1) numerous voting records that she
contends show voters who do not vote where they live; (2) a letter from the
Montgomery County Elections Administrator; and (3) records from prior trials
involving the other voters who participated in the RUD election. An appellate court
may, within its discretion, take judicial notice of adjudicative and legislative facts on
appeal. Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App. 1994); see Tex. R.
Evid. 201(d). However, the record does not indicate that any of these documents are
part of the appellate record or that the trial court had the opportunity to consider
them; thus, we decline to take judicial notice of documents outside the appellate
record. See Davis v. State, 227 S.W.3d 733, 737 (Tex. Crim. App. 2007) (The court
of appeals properly declined to take judicial notice of exhibits that were not
considered by the trial court and were not part of the appellate record.); see also Jack
v. State, 149 S.W.3d 119, 121 n.1 (Tex. Crim. App. 2004) (Appellate courts cannot
consider factual assertions outside the appellate record; documents outside the
record do not “concern[] events or actions in the trial court and [] cannot be
considered for the truth of the matters asserted.”); Gaston v. State, 63 S.W.3d 893,
900 (Tex. App.—Dallas 2001, no pet.) (Generally, “appellate courts take judicial
notice of facts outside the record only to determine jurisdiction over an appeal or to
                                             6
knew she was not eligible to vote, “to-wit: the May 8, 2010 Woodlands Road Utility

District Board of Directors election, when she knew she did not reside in the

precinct in which she voted[.]” In her motion to quash, Cook argued that section

1.015 of Texas Election Code provided an unconstitutionally vague definition of

“residence” and that “[i]t would be impossible for the State to prove the allegations

beyond a reasonable doubt or for the Defendant to defend against such a vague

definition.” The trial court denied the motion.

      We review the denial of a motion to quash under a de novo standard.

Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). We “construe a

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

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

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

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

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

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

269 U.S. 385, 391 (1926)). When the statute is unambiguous, we assume the

Legislature meant what it has expressed, and we do not add or subtract from the

statute. Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009).

resolve matters ancillary to decisions that are mandated by law . . .” and “are
reluctant to take judicial notice of facts that go to the merits of the dispute.”).
                                           7
       To be an eligible voter, a person must “be a resident of the territory covered

by the election for the office or measure on which the person desires to vote[.]” Tex.

Elec. Code Ann. § 11.001(a)(2) (West 2010). The term “residence” means

“domicile,” i.e., a person’s home and fixed place of habitation to which he intends to

return. Id. § 1.015(a). The person does not lose his residence by leaving his home to

go to another place for temporary purposes only. Id. § 1.015(c). Nor does the person

“acquire a residence in a place to which the person has come for temporary purposes

only and without the intention of making that place the person’s home.” Id. §

1.015(d).

       We conclude that the statute’s plain language would enable a person of

common intelligence to understand the following: (1) to become a legally registered

voter, he must both maintain a domicile in the territory in which he seeks to vote and

intend to return to that domicile after any temporary absence; and (2) when seeking

to establish a residence, it is insufficient to go to a place within the territory for a

temporary purpose and without any intent of making that place his home. Id. §

1.015(a), (d). The statute is neither ambiguous nor subject to absurd results. See

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

one.




                                           8
                             Sufficiency of the Evidence

      In issues two through four, Cook challenges the denial of her motion for

directed verdict, the legal sufficiency of the evidence, and the jury’s rejection of her

mistake of law defense. She contends that the State failed to prove that she knew she

was not eligible to vote. We address these three issues collectively.

      “We treat a point of error complaining about a trial court’s failure to grant a

motion for directed verdict as a challenge to the legal sufficiency of the evidence.”

Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Under a legal

sufficiency standard, we assess all the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give

deference to the jury’s responsibility to fairly resolve conflicting testimony, weigh

the evidence, and draw reasonable inferences from basic facts to ultimate facts.

Hooper, 214 S.W.3d at 13.

      A person votes illegally by voting or attempting to vote in an election in

which he knows he is not eligible to vote. Tex. Elec. Code Ann. § 64.012(a)(1)

(West Supp. 2014). “It is no defense to prosecution that the actor was ignorant of the

provisions of any law after the law has taken effect.” Tex. Penal Code Ann. §

                                           9
8.03(a) (West 2011). A person alleging a mistake of law must show that he

reasonably believed the charged conduct did not constitute a crime and that he acted

in reasonable reliance upon the following:

      (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.

Id. § 8.03(b).

      A party’s knowledge is a fact question for the jury and may be proven through

circumstantial evidence. See Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App.

1984). The jury may “use common sense and apply common knowledge,

observation, and experience gained in ordinary affairs when drawing inferences from

the evidence.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). It is

not required that “every fact and circumstance ‘point directly and independently to

the defendant’s guilt; it is enough if the conclusion is warranted by the combined

and cumulative force of all the incriminating circumstances.’” Id. (quoting Johnson

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

      The jury heard evidence that Cook’s voter registration application contained

the following statement: “I understand that giving false information to procure a

                                         10
voter registration is perjury, and a crime under state and federal law.” According to

Cook’s own testimony, Cook considered her Conroe home as her residence both

when she signed her voter registration application and when she cast her vote. The

jury also heard evidence that Cook is not taxed by the RUD, her Conroe home

appears lived-in, she applied for a homestead exemption on her Conroe home, and

she had never actually stayed at the Inn in 2010. At no time did Cook have any

intent to leave her home in Conroe and reside at the Inn. The jury could reasonably

conclude that Cook did not come to the Inn with the intent of making the Inn her

fixed place of habitation, but instead came to the Inn for temporary purposes only

with the intent that her Conroe home remain her domicile. See Tex. Elec. Code Ann.

§ 1.015(a), (d).

      Moreover, the jury was entitled to reject Cook’s contention that she believed

she voted legally. See Hooper, 214 S.W.3d at 13. Cook testified that she relied on

her father’s representations regarding the residency requirement and that she did not

review opinions from the Texas Secretary of State and the Texas Attorney General

until the night before the election. Additionally, both opinions alerted the reader to

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

the person has come for temporary purposes only and without the intention of

making that place the person’s home.” Tex. Elec. Code Ann. § 1.015(d); see Tex.

                                         11
Sec’y State Op. No. GSC-1 (2004); see also Tex. Att’y Gen. Op. No. GA-0141

(2004). In doing so, the Texas Secretary of State opinion cited to the following:

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

Tex. Sec’y State Op. No. GSC-1 (emphasis added) (quoting Guerra v. Pena, 406

S.W.2d 769, 776 (Tex. Civ. App.—San Antonio 1966, no writ)). The Texas

Attorney General opinion clearly explained that “[b]oth bodily presence and current

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

Tex. Att’y Gen. Op. No. GA-0141. According to the Texas Attorney General, the

State may investigate and prosecute when credible evidence is brought to its

attention or a complaint is filed alleging Election Code violations. Id.

      As previously discussed, Cook had no intention of leaving her original

domicile in Conroe, but intended to return to it. The jury could reasonably conclude

that reading these opinions before the election alerted Cook to the fact that, absent

both her bodily presence at the Inn and her current intention to leave her Conroe

residence and not return to it, she would be casting an illegal vote and could be

subject to prosecution. See id.; see also Tex. Sec’y State Op. No. GSC-1. Thus, the

jury was entitled to reject Cook’s mistake of law defense on grounds that she could


                                          12
not have reasonably believed that the charged offense was not a crime. See Acosta,

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

      Viewing the evidence in the light most favorable to the verdict, the jury could

find, beyond a reasonable doubt, that Cook voted illegally by voting in an election in

which she knew she was not eligible to vote. See Jackson, 443 U.S. at 318-19; see

also Tex. Elec. Code Ann. § 64.012(a)(1); Hooper, 214 S.W.3d at 13. We overrule

issues two, three, and four.

                                Ineffective Assistance

      In issue five, Cook contends that trial counsel rendered ineffective assistance

by failing to present certain evidence and file a post-trial motion. To establish

ineffective assistance, Cook must satisfy the following test:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the defendant
      by the Sixth Amendment. Second, the defendant must show that the
      deficient performance prejudiced the defense. This requires showing
      that counsel’s errors were so serious as to deprive the defendant of a
      fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see Perez v. State, 310 S.W.3d

890, 892-93 (Tex. Crim. App. 2010). Allegations of ineffectiveness “must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

                                          13
“Appellate review of defense counsel’s representation is highly deferential and

presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

“Under normal circumstances, the record on direct appeal will not be sufficient to

show that counsel’s representation was so deficient and so lacking in tactical or

strategic decisionmaking as to overcome the presumption that counsel’s conduct was

reasonable and professional.” Id.

      The record does not indicate that Cook’s motion for new trial alleged

ineffective assistance. The record is silent as to trial counsel’s tactical and strategic

decision making. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App.

2010). Nor is trial counsel’s ineffectiveness apparent from the record. See Freeman

v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003). Because Cook cannot

defeat the strong presumption that counsel’s decisions during trial fell within the

wide range of reasonable professional assistance, we overrule issue five. See

Thompson, 9 S.W.3d at 814. We affirm the trial court’s judgment.

      AFFIRMED.

                                                ______________________________
                                                      STEVE McKEITHEN
                                                        Chief Justice




                                           14
Submitted on October 28, 2015
Opinion Delivered November 18, 2015
Do Not Publish

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




                                       15
