CRYSTAL MASON v. THE STATE OF TEXAS (2026)

DISSENTING OPINION

This case returns to us from the court of appeals for the second time. We are now tasked to determine whether the evidence was legally sufficient to show that Appellant actually knew that she was ineligible to vote under Section 64.012 of the Texas Election Code. This Court regularly handles and disposes of sufficiency challenges. See, e.g., Fraser v. State, 726 S.W.3d 253, 266 (Tex. Crim. App. 2025); Glover v. State, 710 S.W.3d 816, 822 (Tex. Crim. App. 2025). This case is no different. Examining the evidence in the light most favorable to the verdict, the evidence is clearly legally sufficient to establish that Appellant actually knew she was ineligible to vote because of her felon status. Consequently, this Court should reverse the judgment of the court of appeals and remand for further proceedings.

Instead, the Court dismisses the State's petition for discretionary review as improvidently granted without providing any explanation. The citizens of this State are owed some explanation from this Court for why it now refuses to act on the critical issue of election integrity. The State of Texas, as a party in this case, deserves as much. I emphatically dissent.

I. Factual Background

a. Trial

On November 23, 2011, Appellant pleaded guilty in federal district court to the offense of conspiracy to defraud the United States. In March 2012, she was sentenced to sixty months’ confinement in federal prison, followed by three years on supervised release, and restitution. Appellant was released on August 5, 2016, and began her three-year period of supervised release.

On November 8, 2016, while still on supervised release, Appellant went to her local polling station in Tarrant County to vote in the 2016 general election. However, because she was a felon, Appellant was, in fact, ineligible to vote. Several years before the 2016 general election, the Tarrant County Elections Commission had cancelled Appellant's voter registration. On May 22, 2013, the Tarrant County Elections Administration mailed a “Notice of Examination” to Appellant's home address, informing her that her registration status was being examined due to her felony conviction. The notice provided, in relevant part:

Notice is hereby given that information has been received in our office concerning your registration to vote. Your registration status is being examined on the ground(s) that:

You have been convicted of a felony.

You must reply within 30 days of this notice. You should provide adequate information or documentation establishing your qualifications to remain registered in this county. A response form is enclosed for your use in replying to this notice.

If a reply is not received within 30 days after the date of mailing this notice, your registration will be cancelled.

The notice gave Appellant thirty days to establish her valid qualifications to remain registered. Appellant failed to respond. On June 25, 2013, the Tarrant County Elections Administration notified Appellant of the cancellation of her voter registration.

When Appellant arrived at her local polling station, neither Jarrod Streibich, the poll clerk, nor Karl Dietrich, the election judge, could find Appellant's name on the list of registered voters. Dietrich asked Appellant if she could think of any reason why she was not on the list of registered voters. Appellant told Dietrich that she could not. Dietrich then asked Appellant if she had been living at the same address since voting in 2008 or if she had moved. Appellant told Dietrich that she had lived at the same address that entire time. Unable to verify Appellant's voter registration, the election workers asked if Appellant wanted to complete a provisional ballot, and Appellant agreed.

Appellant and Dietrich went through the provisional ballot together. The provisional ballot contained two parts. The left side contained information filled out by the election worker. The right side had numerous blank spaces that required a voter to fill out her personal information and indicate her citizenship status. After filling out these required information boxes, Appellant signed the “Affidavit of Provisional Voter” printed on the outside of the provisional ballot envelope. The affidavit stated 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.

At no point in her conversation with Dietrich, nor while she filled out the provisional ballot, did Appellant mention that she had recently been convicted of a felony, had been in federal prison, or was currently on supervised release, even after Dietrich queried whether Appellant could think of any reason why her voter registration could not be confirmed.

The provisional ballot that Appellant completed looked like Exhibit 8, reproduced below, which was admitted at Appellant's trial:

Tabular or graphical material not displayable at this time.

The text on the provisional ballot stated:

Tabular or graphical material not displayable at this time.

When Dietrich handed Appellant the provisional ballot, he asked her to “please read through this and fill out this section.” Dietrich could not “say with certainty” whether Appellant read the left-hand side of the affidavit containing the attestations as to her eligibility to vote, but he watched as Appellant “paused and took some number of seconds to look over what was on the left.” Dietrich was also positive that Appellant “read the right part” of the affidavit, which asked for personal information, because “she put the right information in the boxes.” Streibich, who was sitting about five feet away from Appellant during the time she filled out the provisional ballot, testified that he witnessed her “finger watching each line making sure she read it all.” Dietrich testified that Appellant “meticulously” entered her identifying information on the provisional ballot, responding to every box in a correct manner. After Appellant finished doing so, Dietrich had Appellant affirm that the information in the signed affidavit—the information that she had filled in the boxes—was accurate. Appellant then returned to Streibich, placed her name on the provisional sign-in sheet, and submitted her provisional ballot.

The next day, Dietrich, who happened to be Appellant's neighbor, called the Tarrant County District Attorney's Office to report a concern about Appellant's provisional ballot. The record is unclear as to what motivated this report. After the election, voting officials determined Appellant had been convicted of a felony and that, as a result, her voter registration had been cancelled. Thus, they rejected Appellant's provisional ballot, and her ballot was not counted.

Appellant was indicted by a Tarrant County grand jury for illegally voting in violation of Section 64.012(a)(1) of the Elections Code. The indictment alleged, in relevant part:

THAT CRYSTAL MASON, HEREINAFTER CALLED DEFENDANT, ON OR ABOUT THE 8TH DAY OF NOVEMBER 2016, IN THE COUNTY OF TARRANT, STATE OF TEXAS, Did then and there vote in an election in which she knew she was not eligible to vote in [sic], to-wit: the 2016 General Election, after being finally convicted of the felony of Conspiracy to Defraud the United States ․ and Defendant had not been fully discharged from her sentence for the felony including any court ordered term of parole, supervision and probation.

Appellant waived a jury trial.

At trial, Appellant testified in her own defense. Appellant explained that she did not read the admonishments on the provisional ballot before signing and submitting it, and that no one had ever informed her that she was ineligible to vote on account of being a felon on supervised release. Appellant also testified that, had she known she was ineligible to vote, she would not have done so. Appellant also disputed Dietrich and Streibich's version of events, testifying that a woman, not Dietrich, helped her fill out the provisional ballot. She described both men as “not truthful at all.”

On cross-examination, Appellant conceded that “anyone” reading the admonishments on the provisional ballot would have understood that a felon on supervised release was ineligible to vote. Appellant also conceded that she had told a reporter from the Fort Worth Star-Telegram that she had “skimmed through” the admonishments.

The trial court also questioned Appellant:

THE COURT: Okay. So I'm looking at what's been handed to me in State's Exhibit 9 and — I'm sorry, No. — yes, No. 9 and No. 8. And I can't help but notice that even when you're — you're filling out the white portion of the affidavit — and you understand the significance of the word “affidavit” because you had a Factual Resume or affidavit that that was filled out in federal court —

THE DEFENDANT: Yes.

THE COURT: — correct? And there's some legal significance to this, correct?

THE DEFENDANT: Yes.

THE COURT: And to the left, I notice that there are a bunch of arrows that are pointed to the spots that you're filling in with a bunch of information, and it further says to be completed by the voter in the box.

THE DEFENDANT: Yes, sir.

THE COURT: Is that correct?

THE DEFENDANT: Yes.

THE COURT: So I just want to make sure. You're explaining to me, despite all the documents and the things that you've done in federal court and knowing that this is a legal document, you wouldn't read that?

THE DEFENDANT: I — I didn't really — I didn't really know it was a legal document. All I know is it was a — it was a provisional form. I didn't — we didn't go into —

THE COURT: Well, I understand that. But my question, though, is that it says the word “affidavit.” That has a legal connotation to it —

THE DEFENDANT: Yeah, it did.

THE COURT: — doesn't it?

THE DEFENDANT: Yeah.

THE COURT: And then, you know, voting is a right, not a privilege. Well, it could be considered a privilege as well, but voting is that you can lose that right.

THE DEFENDANT: Correct, yes, sir.

THE COURT: Okay. But you're telling me you didn't read this, and because you didn't read it, you didn't realize that you no longer had the right to vote?

THE DEFENDANT: I had no idea.

At the close of the evidence, the trial judge found Appellant guilty of illegal voting and sentenced her to five years’ confinement. Appellant filed a motion for new trial, which was denied after an evidentiary hearing. This appeal followed.

b. Appeal

On initial appeal, the court of appeals affirmed Appellant's conviction. Mason v. State (Mason I), 598 S.W.3d 755, 763 (Tex. App.—Fort Worth 2020). Appellant filed a petition for discretionary review, alleging three errors by the court of appeals: (1) in holding that her unawareness about her ineligibility to vote “was irrelevant to her prosecution”; (2) by interpreting the illegal voting statute to criminalize the good-faith submission of provisional ballots where individuals turn out to be incorrect about their eligibility to vote, contrary to the federal Help America Vote Act; and (3) by holding that Appellant “voted in an election” when she submitted a provisional ballot that was never counted. Appellant filed a petition for discretionary review.

This Court affirmed in part and remanded in part. We held that, as to Appellant's second and third grounds, the Help America Vote Act did not preempt the illegal voting statute and that the court of appeals did not err by concluding that Appellant “voted.” Mason v. State (Mason II), 663 S.W.3d 621, 624 (Tex. Crim. App. 2022). But as to Appellant's first ground, we held that the court of appeals erred by failing to require proof that Appellant had actual knowledge that she was ineligible to vote while on supervised release. Id. at 632. Specifically, we explained that for the State to prove that Appellant illegally voted, the State had to prove that Appellant (1) knew she was on supervised release after having been convicted of a felony and (2) “actually realized” that “ ‘these circumstances ․ in fact’ rendered her ineligible to vote.” Id. (quoting Delay v. State, 465 S.W.3d 232, 252 (Tex. Crim. App. 2014)). We remanded Appellant's case to the court of appeals for it “to evaluate the sufficiency of the evidence under the correct interpretation of the statute.” Id. at 624, 635.

On remand, the court of appeals reversed and rendered a judgment of acquittal. Mason v. State (Mason III), 687 S.W.3d 772, 785 (Tex. App.—Fort Worth 2024). The court of appeals held that “the quantum of evidence presented in this case is insufficient to support the conclusion that [Appellant] actually realized that she voted knowing that she was ineligible to do so.” Id. In the court of appeals’ view, the words on the affidavit—the State's “primary evidence”—were “not sufficient ․ to prove beyond a reasonable doubt that [Appellant] actually knew that being on supervised release after having served her entire federal sentence of incarceration made her ineligible to vote by casting a provisional ballot when she did so.” Id. Thus, the evidence was insufficient to support Appellant's conviction. See id.

c. Mason IV

We granted the State's petition for discretionary review, which presented the following question:

Did the appellate court misapply the legal sufficiency standard of review by:

• crediting Appellant's self-serving testimony which the trial court reasonably could have disregarded; and/or

• resolving an ambiguity in Appellant's testimony in Appellant's favor; and/or

• reweighing evidence in favor of the defense; and/or

• ignoring evidence that supported the verdict; and/or

• applying sufficiency analyses long rejected by this Court; and/or

• failing to view the evidence in the light most favorable to the verdict.

In addition to the errors presented by the State in its question for review, the State argues that the court of appeals engaged “in an analysis that appears to credit Appellant's disavowals of reading and understanding the affidavit and by so doing, inserted itself into the role of the fact finder.” The State also argues that the inferences drawn by the court of appeals were not in the light most favorable to the verdict, and the court of appeals used a “divide and conquer strategy” to evaluate the evidence and find it insufficient. The State contends that several key pieces of evidence, when taken together, are legally sufficient to establish Appellant's guilty state of mind.

In response, Appellant argues that the court of appeals’ sufficiency analysis was correct. Appellant focuses on the lack of evidence conclusively establishing that she “actually knew” that she was ineligible to vote in the 2016 election. Appellant also argues that even if she had read the admonishments on the provisional ballot—which Appellant contends lacks evidentiary support—the language in the admonishments was insufficient to put Appellant on notice of her ineligibility to vote. Thus, Appellant concludes, the evidence was legally insufficient to support her conviction.

Several amici filed briefs in support of Appellant. Amici representing a group of former state and federal prosecutors urge the Court that “[a]bsent rigorous enforcement of the knowledge requirement, the threat of prosecution will discourage eligible voters from voting.” See Br. of Former Prosecutors as Amicus Curiae at 6. Amici argue that only those with “knowledge that [they are] ineligible to vote, not simple negligence,” can be convicted. Id. at 11. The Cato Institute argues that, even in the light of conflicting testimony, the court of appeals below correctly applied this Court's decision in Mason II and the deferential standard of review under Jackson ¹ to find that, even when disregarding Appellant's testimony, the remaining evidence “provides no evidence of [Appellant's] actual awareness that she was ineligible to vote.” See Amended Br. of Cato Institute as Amicus Curiae at 16. Additionally, a joint amicus brief by the League of Women Voters of Texas and the Texas NAACP argues that the State's position in this case endorses an already-rejected “negligence” standard that would chill legitimate voting. See Br. of League of Women Voters as Amicus Curiae at 32.

I. Applicable Law

i. Sufficiency

When assessing the sufficiency of the evidence to support a criminal conviction, reviewing courts consider the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found that the State has proven the essential elements of the crime beyond a reasonable doubt. Baltimore v. State, 689 S.W.3d 331, 341 (Tex. Crim. App. 2024) (citing Jackson, 443 U.S. at 319). When drawing inferences, the trier of fact may use common sense, common knowledge, personal experiences, and observations from life. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). When the record supports conflicting reasonable inferences, we presume that the trier of fact resolved those conflicts in favor of the conviction, and we defer to those resolutions. Dunham v. State, 666 S.W.3d 477, 482 (Tex. Crim. App. 2023).

This standard applies whether the case was proven by direct or circumstantial evidence. Laster v. State, 275 S.W.3d 512, 520–21 (Tex. Crim. App. 2009). This standard gives full responsibility to the trier of fact to fairly resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic to ultimate facts. Id. at 522. A factfinder may believe all, some, or none of a witness's testimony. Romano v. State, 610 S.W.3d 30, 34 (Tex. Crim. App. 2020). As the reviewing court, we do not sit as the metaphorical “thirteenth juror.” See McPherson v. State, 677 S.W.3d 663, 664 (Tex. Crim. App. 2023). We cannot substitute our judgment for that of the trier of fact by re-evaluating the weight and credibility of the evidence. Id. We must affirm the conviction if the inferences necessary to establish guilt are reasonable based upon the “cumulative force” of all the evidence when viewed in the light most favorable to the conviction. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

“Theorizing or guessing as to the meaning of evidence is never adequate to uphold a conviction.” Cary v. State, 507 S.W.3d 761, 766 (Tex. Crim. App. 2016). Nor is speculation. Hooper v. State, 214 S.W.3d 9, 15–16 (Tex. Crim. App. 2007). Correct application of the Jackson standard depends on understanding “the difference between a reasonable inference supported by the evidence at trial” and mere speculation. Id. at 16. However, the State is not required to prove an element with direct evidence. See Carroll v. State, 701 S.W.2d 913, 914 (Tex. Crim. App. 1986). Circumstantial evidence may suffice to establish the elements necessary to sustain a conviction. See id.

A determination of evidentiary sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Reviewing courts measure sufficiency by comparing the evidence produced at trial to the elements of the offense as defined by the hypothetically correct jury charge. Id. A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. The law authorized by the indictment consists of the statutory elements of the offense as modified by the indictment allegations. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). We use this comparison even when, as here, the trial court was the factfinder. See Malik, 953 S.W.2d at 240.

ii. Illegal Voting

As relevant here, Section 64.012 of the Texas Election Code provides that “[a] person commits an offense if the person knowingly or intentionally votes or attempts to vote in an election in which the person knows the person is not eligible.” Tex. Elec. Code § 64.012(a)(1). An offense under this section is a second-degree felony unless the person is convicted of an attempt, in which event the offense is a state jail felony. Id. § 64.012(b).

In 2021, the Legislature amended the statute to enact a provision specifically addressing the proof required to establish the offense. That provision states: “A person may not be convicted solely upon the fact that the person signed a provisional ballot affidavit under Section 63.011 unless corroborated by other evidence that the person knowingly committed the offense.” Id. § 64.012(c); Acts 2021, 87th Leg., 2nd C.S., ch. 1 (S.B. 1), § 9.03, eff. Dec. 2, 2021.²

For the mens rea element of the illegal voting statute, we made clear in Mason II that “the State was required to prove not only that Appellant knew she was on supervised release but also that she ‘actually realized’ that ‘these circumstances ․ in fact’ rendered her ineligible to vote.” 663 S.W.3d at 632 (quoting Delay, 465 S.W.3d at 252).

Accordingly, the hypothetically correct jury charge for this offense would include the following essential elements: (1) Appellant voted or attempted to vote in an election, (2) in which she knew that she was ineligible to vote. Further, pursuant to Election Code Section 64.012(c), the evidence of Appellant's mens rea cannot be substantiated solely on the basis that Appellant signed the provisional ballot affidavit and must be corroborated by other evidence showing that Appellant knew she was ineligible to vote. See Tex. Elec. Code § 64.012(c).

II. Analysis

The sufficiency review in this case turns on whether Appellant actually knew she was ineligible to vote in the 2016 general election. The State presents several different pieces of evidence that, in its view, when taken together, are sufficient to legally support Appellant's conviction. I agree.

i. The Provisional Ballot

The first—and primary—piece of circumstantial evidence comes from the provisional ballot itself. As Appellant readily concedes, the provisional voter information clearly stated that a convicted felon on supervised release is ineligible to vote. The affidavit stated that “I understand that it is a felony in the 2nd degree to vote in an election for which I know I am not eligible.” If there was any doubt as to the definition of “eligible,” the affidavit stated, “I 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.” Appellant, having not yet completed her “term of ․ supervision,” was not eligible to vote by the plain text of the affidavit.

Moreover, as the trial court pointed out in questioning Appellant, the provisional ballot is designed to emphasize that information. Reading from left to right, a reader first sees boxes that will be filled out by election workers. The two information paragraphs are located immediately below those boxes. To the right of the information paragraphs are a set of seven arrows that point from the information paragraphs to the corresponding boxes that the voter fills out. The trial court questioned Appellant about this formatting, and Appellant stated that she “didn't really know it was a legal document.” The trial court expressed its skepticism, asking whether the word “affidavit” had “a legal connotation.” Appellant conceded that it did but ultimately denied either reading the information paragraphs or knowing that she could no longer vote.

The trial court was free to reject Appellant's testimony and find her not credible. At the time of Appellant's testimony, the trial court already knew that Appellant was a convicted felon who was highly capable of understanding minutiae in legal documents. The trial court had reviewed evidence that Appellant's federal conviction was for running a fraudulent tax-preparation business that involved the unauthorized use of IRS electronic transmitted identification numbers (EFINs). United States v. Mason-Hobbs, No. 4:11-CR-151-A-1, 2013 WL 1339195, at *1 (N.D. Tex. Apr. 3, 2013). As the trier of fact, the trial court could reasonably infer that it was unlikely that Appellant, given her familiarity with legal documents, would not have read the information paragraphs on the provisional ballot and that Appellant would not have been fully capable of understanding the information contained therein and its consequences.

ii. Appellant's Statements to Dietrich and Streibich

The next key piece of circumstantial evidence is Appellant's statements to Dietrich and Streibich. Once she arrived at the polling location, Dietrich and Streibich were unable to locate Appellant on the voter registration roll. Dietrich testified that he checked both of Appellant's last names—Hobbs and Mason—but found no results. Dietrich then asked Appellant “if there was any reason that she knew that she wouldn't have been in the book of registered voters,” to which Appellant replied that there was not. Dietrich then testified that Appellant had provided the address at which she lived and that the address was located inside the precinct. Dietrich asked Appellant whether she had moved from this address, and Appellant confirmed that it was still the correct address.

In reality, this was not the truth. Appellant certainly lived at that address from 2008 to 2012, and then for a few months in 2016 before casting the provisional ballot. But from 2012 to 2016, Appellant lived at a different address: Federal prison. On cross-examination, Appellant was asked what “critical event” in her life had occurred between 2008 and 2016. When asked whether “it did not even cross [her] mind a little bit that [her prison sentence was] the reason why [she was] not on the list,” Appellant responded, “Not at all.” The trier of fact may “regard false statements in explanation or defense, made or procured to be made, as in themselves tending to show guilt.” Wilson v. United States, 162 U.S. 613, 621 (1896). The trial court was free to discredit Appellant's version of events and draw inferences therefrom. From this evidence, the trier of fact could have reasonably inferred that Appellant was attempting to hide her status as a felon from the election workers because she knew that her felon status rendered her ineligible to vote.

iii. Dietrich and Streibich's Observations

The third piece of evidence is Dietrich and Streibich's observations from the moment Appellant walked into the polling location to when she cast the provisional ballot. Dietrich sat with Appellant, apart from the voting line and booths, while Appellant filled out her provisional ballot. Dietrich testified that he asked Appellant to “read through this,” referring to the provisional ballot, and “fill out this section,” referring to the right side of the ballot envelope. While Dietrich could not “say with certainty” that Appellant read the left side of the provisional ballot, Dietrich testified that “she certainly paused and took some number of seconds to look over what was on the left.” Streibich, who was sitting a few feet away while this happened, testified that he saw Appellant “finger watching each line making sure she read it all.” Even Appellant admitted that she told a news reporter she “skimmed through” the information in the affidavit. After appearing to read the left side of the ballot, Appellant “certainly read the right part,” because she “filled it out” by “put[ting] the right information in the boxes.” After Appellant finished filling out the boxes, Dietrich raised his right hand and asked Appellant to affirm that all the information she had provided was accurate. Appellant answered in the affirmative. Dietrich then testified that had he believed Appellant had not read the affidavit, he would not have allowed her to swear to it. After swearing to the affidavit, Appellant returned to Streibich, placed her name on the provisional sign-in sheet, and gave Streibich her provisional ballot.

As the trier of fact, the trial court was free to find Streibich and Dietrich credible. The cumulative force of their testimony, combined with Appellant's admission to a news reporter that she “skimmed” through the affidavit, allowed the trier of fact to reasonably infer that Appellant read the information on the provisional ballot. Based on the evidence that showed Appellant read the provisional ballot information, the trial court could have reasonably believed that Appellant would have actually known, at that moment, that she was ineligible to vote because the provisional ballot clearly explained to a reader that anyone still serving a term of supervision was not eligible to vote.

iv. Cumulative Evidence

This case boils down to a very simple question: Did the trial court believe Appellant's version of events? Before the 2021 amendment to Section 64.012, it is undisputed that Appellant's guilt would have been proven merely by her signature on the affidavit. After the amendment, which applies retroactively to Appellant's case, the State was required to prove that Appellant “actually knew” that she was ineligible to vote based on more than her signature on the provisional ballot affidavit alone. The only evidence rebutting the State's allegation that Appellant “actually” knew that she was ineligible to vote is Appellant's own testimony. The trial court was in the best position to assess Appellant's credibility and demeanor, just as the trial court was in the best position to assess the credibility and demeanor of the State's witnesses. The trial court evidently did not find Appellant credible. Based on the evidence presented, the trial court could reasonably infer that Appellant read the information on the provisional ballot, understood its directives, and actually knew that she was ineligible to vote. This evidence is sufficient to show Appellant's required mental state for the illegal voting statute.

v. Remaining Issue

Holding that the evidence on this discrete issue is sufficient would not fully resolve Appellant's challenges on appeal. On initial appeal, Appellant contended that she received ineffective assistance of counsel for several reasons. Mason I, 598 S.W.3d at 783. Specifically, Appellant contended that “her trial counsel was ineffective for failing to call additional witnesses to testify to her lack of subjective knowledge and intent to vote illegally.” Id. at 785. The court of appeals explained that Appellant's “subjective knowledge that voting while on post-imprisonment supervised release was illegal is irrelevant to her conviction” and that counsel's performance was therefore not deficient. Id. The court of appeals rejected Appellant's claim, finding that trial counsel's performance was not deficient. Id. at 788.

But in Mason II, we overturned the court of appeals’ mens rea analysis. See 663 S.W.3d at 624 (quoting Delay, 465 S.W.3d at 252). On remand, Appellant re-urged her ineffective-assistance claim on that very basis. Mason III, 687 S.W.3d at 774. The court of appeals, finding merit to Appellant's sufficiency argument, declined to reach her ineffective-assistance claim. See id. (citing Tex. R. App. P. 47.1 “Because we determine that her first issue has merit, we need not decide her second issue.”)).

Therefore, the proper remedy is to remand the case to that court for it to reconsider the remaining issues related to the sufficiency of the evidence and to address Appellant's ineffective-assistance-of-counsel claim in the first instance.

III. Conclusion

The evidence presented by the State at Appellant's trial for illegal voting was sufficient to show that Appellant “actually knew” that she was ineligible to vote. The provisional voter affidavit, corroborated by the additional evidence presented by the State, leaves no doubt whatsoever that the trier of fact was presented with sufficient evidence to sustain Appellant's conviction. This is not a close case. The evidence is clearly and unquestionably sufficient. We should say so. I respectfully, but emphatically, dissent.

FOOTNOTES

1.   Jackson v. Virginia, 443 U.S. 307 (1979).

2.   This amendment was expressly made applicable to any non-final offense committed before, on, or after its passage. Acts 2021, 87th Leg., 2nd C.S., ch. 1 (S.B. 1), § 9.04, eff. Dec. 2, 2021 (“The change in law made by this article in adding Section 64.012(c), Election Code, applies to an offense committed before, on, or after the effective date of this Act, except that a final conviction for an offense under that section that exists on the effective date of this Act remains unaffected by this article.”). Because Appellant's conviction is not yet final and remains pending on appeal, the evidentiary requirements of subsection (c) are applicable to Appellant's offense. I will assume that the retroactive amendment is constitutional in light of the Texas Constitution's prohibition against retroactive laws. See Tex. Const. art. I, § 16 (“No ․ retroactive law ․ shall be made.”).