CRYSTAL MASON v. THE STATE OF TEXAS (2026)

OPINION

We granted the State's petition for discretionary review to determine whether the court of appeals erred in its sufficiency analysis of Appellant's conviction for illegal voting. Having examined the record and the briefs, we conclude that our decision to grant review was improvident. We therefore dismiss the State's petition for discretionary review as improvidently granted.

DISSENTING OPINION

The lower courts resolved this case as anyone might have expected: on its merits, timely, and in accordance with established precedent in a way that inspires confidence in an independent judiciary and elective government. That process has since been confounded by an elusive, changing standard of evidentiary sufficiency for establishing the requisite mens rea, and the amended statute seems to be retroactively applicable to only this one case.

This Court granted review of Crystal Mason's original petition in 2022 after the court of appeals affirmed her conviction. Mason v. State, 598 S.W.3d 755, 789 (Tex. App.—Fort Worth 2020, pet. granted) [hereinafter Mason I]; Mason v. State, 663 S.W.3d 621, 635 (Tex. Crim. App. 2022) [hereinafter Mason II]. In our decision, we deferred to legislative commentary and subsequent legislation, apparently aimed at directing the disposition of this case. We remanded the case to the court of appeals to address the purely legal question of sufficiency of the evidence under that revision and with a suggestion put forward in a side opinion to consider at least one of several constitutional concerns arising from new retroactive legislation. See Mason II, 663 S.W.3d at 638 (Yeary, J., concurring and dissenting).

The intermediate court did the best it could to accommodate our apparent will to appease the legislators who borrowed our hand to correct past judicial decisions, including and especially the courts of appeals’ original decision that was pending on review before us at the time of the enactment. It thus reversed the conviction, though it did not address what I see as serious constitutional concerns. Mason v. State, 687 S.W.3d 772, 785 (Tex. App.—Fort Worth 2024, pet. granted) [hereinafter Mason III].

The majority now dismisses the State's petition as improvidently granted, foreclosing any substantive review in this Court.

I agree with Judge Parker that the jury was presented with sufficient direct evidence of Mason's knowledge of her prohibited felon status to compel affirmance, regardless of any statutory change. I would add that the evidence also supports the jury inferring that knowledge from her willful ignorance of the legal prohibition given her extensive criminal history. Finally, I believe the constitutional questions Judge Yeary raised in Mason II are deeper and more fundamental than can be ignored. Ramsey v. Dunlop, 205 S.W.2d 979, 982–83 (Tex. 1947);¹ see also State v. Santana, 444 S.W.2d 614, 615 (Tex. 1969). While I would prefer instead to ask the parties to address them in supplemental briefing, I would nevertheless resolve them in keeping with their fundamental nature rather than dismissing this matter.

I therefore dissent from our dismissal and write separately to address what I see as obvious and unavoidable structural concerns with the application of Section 64.012(c) of the Texas Election Code to this case. I also address the legal sufficiency of the evidence and the appropriate disposition under the Texas Rules of Appellate Procedure.

I. BACKGROUND

A. Offense and Direct Appeal

Mason's case essentially turns on her knowledge of the implications of a felony conviction, specifically knowledge of her ineligibility to vote. Her conviction in this case for illegal voting was not her first. At the time of her appearance and testimony before Judge Gonzalez at the trial of this case, she had pled guilty to or been found guilty of: (1) arson of a habitation in 1995; (2) forgery in 1998; (3) tampering with a government record with intent to harm or defraud in 2011;² and (4) conspiracy to defraud the United States government in 2012.³

The pertinent facts prompting Mason's illegal voting conviction can be summarized as follows. In November 2016, Mason went to her polling place to vote, but poll workers could not find her name on the list of registered voters. They offered her a provisional ballot, requiring execution of an affidavit confirming her legal eligibility to vote. She proceeded to fill it out and sign it, then cast her provisional ballot. An election judge later reported a concern with Mason's provisional ballot to the district attorney's office due to her status as a felon. Mason was then indicted by a grand jury for “vot[ing] 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 [ ] had not been fully discharged from her sentence for the felony including any court ordered term of parole, supervision and probation.”⁴ The trial court found Mason guilty of illegal voting in 2018, and the Second Court of Appeals affirmed her conviction in 2020. Mason I, 598 S.W.3d at 789. This Court then granted Mason's petition for discretionary review. Mason II, 663 S.W.3d at 635.

B. Legislative Amendment and Mason II

It was at this point that this case took an unusual turn.

After the court of appeals affirmed Mason's conviction in Mason I, and while her petition for discretionary review was pending in Mason II, the Legislature passed an amendment to Section 64.012. See Act of Aug. 31, 2021, 87th Leg., 2d C.S., § 9.03, sec. 64.012, 2021 Tex. Sess. Law Serv. 3783, 3812 (codified at Tex. Elec. Code § 64.012(c)). The amendment added subsections (c) and (d). Id. Subsection (c) states:

(c) 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.

As detailed in our earlier opinion, the dispositive issue in this case is whether Mason had knowledge that she was ineligible to vote when she cast her provisional ballot. Mason II, 663 S.W.3d at 629. While Mason executed an affidavit swearing that she was not ineligible to vote on account of her prior convictions, she could not be convicted under the amendment without corroborating evidence. And insofar as its language directing retroactive application is concerned, the amendment appears to apply only to this case.⁵

This Court's majority concluded that the court of appeals’ interpretation of the statute was now contrary to legislative intent, relying on the remarks during a special legislative session as to the existing statute's scienter standard. Id. at 630–31. The Court observed: “In their remarks about the resolution, representatives specifically discussed Mason's case, suggesting that there was an error in interpreting section 64.012(a)(1) under a strict liability standard.” Id. at 630. Citing these remarks as “persuasive authority,” the majority found Section 64.012(a)(1) ambiguous (or treated it as such) for purposes of application of the rule of lenity employed in Delay v. State, 465 S.W.3d 232 (Tex. Crim. App. 2014), in connection with another statute that the Court has found ambiguous. Id. at 628– 29. The portion of the statute at issue as passed by both houses did not actually introduce new statutory language governing scienter. Act of Aug. 31, 2021, 87th Leg., 2d C.S., § 9.03, sec. 64.012, 2021 Tex. Sess. Law Serv. 3783, 3812 (codified at Tex. Elec. Code § 64.012). Instead, the enactment simply added subsections (c) and (d), and subsection (c) altered the evidentiary sufficiency standard to require proof in addition to the affidavit by which the voter acknowledges the prohibition would be sufficient to sustain the conviction.⁶

Our remand in Mason II therefore accepted the retroactive application of Section 64.012(c) relying on the statements of two legislators with little question about whether legislators can speak for the legislature and whether legislatures can reverse pending court decisions generally or target a single pending case. Any or all these constitutional questions surrounding the application of the amendment could be avoided, of course, by addressing the legal sufficiency of the evidence apart from the affidavit.

Rather than address the sufficiency question or these latent legal questions directly, we remanded the case to the court of appeals based on its “erroneous interpretation of the statute.” Mason II, 663 S.W.3d at 635. Judge Yeary wrote separately, urging consideration of the constitutionality of the retroactive application of the law. Id. at 638 (Yeary, J., concurring). Judge Slaughter dissented, and, noting the legal nature of the inquiry, saw no need to remand in view of what she saw as the sufficient nature of the evidence, exclusive of the affidavit, to compel affirmance. Id. at 642 (Slaughter, J., dissenting).

On remand, the court of appeals held that the evidence was legally insufficient. The State filed the present petition for discretionary review. I now second Judge Yeary's misgivings and agree with Judge Slaughter's legal sufficiency conclusion. While I would prefer to answer only the sufficiency question to avoid the constitutional concerns, our dismissal of the petition leads me to join Judge Parker's dissent concerning sufficiency and carry forward to the constitutional concerns first addressed by Judge Yeary.

II. SECTION 64.012(C) MAY POSE CONSTITUTIONAL CONCERNS

A. Retroactivity and Separation of Powers Under the United States Constitution

The basic operational premise of our constitutional form of government is that the states are chiefly responsible for the management of their affairs including and especially adherence to the structural commands of both the United States Constitution and their own. That system requires more than confidence in elections, which this matter does little to advance. It also requires recognition of the text of those constitutions. If the United States Constitution speaks to a matter and prohibits state action, the inquiry is under the Supremacy Clause of Article VI. We, as state judges, are directly obliged by that same Article to recognize and uphold these requirements.

I see our disposition of this case at least touching upon a host of related federal constitutional concerns under Article I and Article IV of the United States Constitution that could, at least arguably, create a republican-form problem under Article IV (were that question justiciable)⁷ and our own like constraint. See Tex. Const. art. I, § 2 (pledging the state to a republican form). I do not believe debate over that broad question is necessary, as the problem here ultimately comes to a head under the far more specific text of our own state Constitution's command for separation of powers in Article II and its complementary prohibition on special laws in Article III. I will only summarize the background federal constitutional principles that inform my analysis.

Article I of the Constitution spells out the powers of Congress and proscriptions on states enacting either bills of attainder or ex post facto laws. U.S. Const. art. I, § 10. While the Supreme Court's construction has largely limited the reach of those provisions to enactments that would target individuals with criminal consequences that did not apply generally or before commission of the crime, it has been clear that the restriction on selective, retroactive criminal legislation was “intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature.” United States v. Brown, 381 U.S. 437, 442 (1965); see generally Ex parte Garland, 71 U.S. 333 (1866); Cummings v. Missouri, 71 U.S. 277 (1866). Our Constitution was drafted in the wake of these decisions, and its restrictions on special and retroactive laws should be understood as expressions of a like understanding and in accordance with their plain language.

B. Prohibition Against Special Laws Under the Texas Constitution

Application of Section 64.012(c) to this case may violate the Texas Constitutional prohibition against special laws. Enumerated in Article III, Section 56 of our Constitution, the Legislature is prohibited from passing “local” or “special” laws, except as otherwise provided by our Constitution. See Tex. Const. art. III, § 56; Smith v. State, 113 S.W. 289, 290 (1908). That section prohibits special laws “regulating the practice or jurisdiction of ․ or changing the rules of evidence in any judicial proceeding or inquiry before courts.” Tex. Const. art. III, § 56(a)(16).

Our sister court has correctly defined a “special law” as a law that is “limited to a particular class of persons distinguished by some characteristic other than geography.” Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 450 (Tex. 2000) (quoting Texas Boll Weevil Eradication Found. v. Lewellen, 952 S.W.2d 454, 465 (Tex. 1997)). The purpose of the prohibition against special laws is to “prevent the granting of special privileges and to secure uniformity of law throughout the State as far as possible.” Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996) (quoting Miller v. El Paso County, 150 S.W.2d 1000, 1001 (Tex. 1941)).

I take it as obvious that a law targeted at a class of one would amount to the most “special” law imaginable.

Early precedent recognizes that “the Legislature cannot evade the prohibition of the Constitution as to special laws by making a law applicable to a pretended class, which is, in fact, no class.” Smith, 113 S.W. at 290. While I reserve a full evaluation of the constitutionality of Section 64.012(c) with respect to Article III for a later time, I question to which “class” of persons, other than retroactively to the individual convicted in this case, this amendment was meant to apply and in what way does that retroactive application further the uniformity of the law throughout this State? See id.; Sheldon, 22 S.W.3d at 250; Lewellen, 952 S.W.2d at 465; Monaghan, 931 S.W.2d at 945; Miller, 150 S.W.2d at 1001. While I have no doubt that the Legislature might make evidentiary rules to particular species of claims and cases prospectively, as such rules revisions operate as to a full class of persons yet unknown, targeting a single pending case with a retroactive change to the evidentiary standard is more than a difference in degree. “Changes in substance” sometimes “come dressed as changes in procedure.” In re Fiberboard Corp., 893 F.2d 706, 711 (5th Cir. 1990).

As Chief Justice Roberts has observed in the federal context: “Applying a retroactive law that says ‘Smith wins’ to the pending case of Smith v. Jones implicates profound issues of separation of powers.” Bank Markazi v. Peterson, 578 U.S. 212, 246 (2016) (Roberts, C.J., dissenting). Given the apparent lack of any other case to which this retroactive evidentiary rule might apply and in view of legislative history specifically targeting the outcome in this case, it is hard to fathom how this case could survive even that more general separation-of-powers inquiry that would obtain elsewhere. But given our Texas Constitution's specific separation command in Article II, and it's even more specific proscription on changes in “practice” and “rules of evidence” in a “judicial proceeding or inquiry [pending] before the courts” in Article III, the problem becomes too obvious to ignore. Tex. Const. art. III, § 56(16). Legislatures operating in a republican form do not single out cases pending on direct review and “correct” the appellate courts’ application of existing law to retroactively “fix” a single pending case.⁸ Cf. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973) (legislative attempt to authorize more lenient resentencing for people convicted of certain marijuana offenses held unconstitutional for encroaching on the governor's clemency powers).

In all events, it is clear the statutory amendment applies only to the crime of election fraud and, insofar as the decision to apply it retroactively is concerned, only to this one case—as the legislative history candidly suggests—and I believe that we are compelled to address these constitutional concerns given their fundamental nature.

III. THE DOCTRINE OF WILLFUL IGNORANCE MAY BE USED AS EVIDENCE OF THE KNOWLEDGE MENS REA IN THE LEGAL SUFFICIENCY ANALYSIS

The constitutional problems in this case can be avoided by simply recognizing that the evidence here was plainly legally sufficient. I agree with Judge Slaughter's dissent in Mason II, and the other judges who dissent to dismissing the present petition. It is unnecessary to conduct an additional review of the evidence here, as I believe those dissents have provided ample analysis of the existing evidence corroborating the direct proof by affidavit. In further support, I add that willful ignorance can be a useful tool in this case given the mens rea element of the illegal voting statute. Without addressing the overall scope and applicability of willful ignorance within our current state-court jurisprudence in the context of criminal convictions, I note the generally accepted use of the doctrine in other jurisdictions and propose the utilization of its aid here.

The doctrine of willful ignorance has been widely used for over a century. Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011).⁹ It has sometimes been used not to satisfy the mens rea itself, but as an inference a factfinder may reasonably draw to support a finding of knowledge where it is a requisite mental state for the crime. Robin Charlow, Wilful Ignorance and Criminal Culpability, 70 Tex. L. Rev. 1351, 1354 (1992) (discussing the uses of willful ignorance in criminal law).

The use of willful ignorance in criminal law likely derived from the elusive nature of proving knowledge as the requisite mens rea for a crime. As early federal circuits recognized, this is because when knowledge is at issue, “knowledge, being a mental condition, undisclosed, cannot always be proven by direct or express testimony, and frequently must be proven by circumstances.” Rumely v. United States, 293 F. 532, 554 (2d Cir. 1923); United States v. Moser, 509 F.2d 1089, 1092 (7th Cir. 1975) (noting knowledge “must ordinarily ‘largely be proved by circumstantial evidence’ ”); Jackson v. United States, 330 F.2d 679, 681 (8th Cir. 1964) (same).

One of the most influential cases is United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc). The Ninth Circuit in that case held that willful blindness may satisfy the knowledge requirement, which is justified by the maxim that “deliberate ignorance and positive knowledge are equally culpable.” Id. at 700. The widely accepted rationale prompted the use of the Jewell instruction ¹⁰ as standard in jury charges. Ira P. Robbins, The Ostrich Instruction: Deliberate Ignorance as A Criminal Mens Rea, 81 J. Crim. L. & Criminology 191, 209 (1990).

A common theme of the doctrine is to prevent defendants from escaping conviction simply by arguing they were ignorant despite evidence they were intentionally or knowingly ignorant. The same rings true here. The evidence supporting Mason's conviction is overwhelming, including her claimed (and contested) refusal to read the explicit text of the affidavit and her extensive experience with the criminal justice system with the concomitant implications of being a convicted felon. This suggests that she was aware of both her status and its consequences for voting.

Given this extensive record, one might suggest that the trial court, sitting as the finder of fact, could have inferred Mason's knowledge of the prohibitions applicable to felons “after viewing all the evidence in the light most favorable to the verdict” and from the “the cumulative force of all the incriminating circumstances.” Herron v. State, 625 S.W.3d 144, 152 (Tex. Crim. App. 2021) (citing Jackson v. Virginia, 443 U.S. 307, 318 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). I add that the legal sufficiency standard allows jurors to consider things that are matter of “common sense and ․ common knowledge,” like that a convicted felon cannot vote unless the right has been restored. See Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).¹¹

Insofar as the statutory amendment excludes exclusive consideration of the affidavit, that is immaterial given the inferences that stem from her criminal history and conspicuous refusal to read the affidavit, particularly when combined with other evidence addressed elsewhere.

Of course, any of Mason's earlier convictions would have also sufficed to undermine her credibility in the resulting testimonial conflict over whether she read any relevant portion of the affidavit she executed before casting her provisional ballot.¹² Tex. R. Evid. 609(a)(3); see also McClendon v. State, 509 S.W.2d 851 (1974); Crisp v. State, 470 S.W.2d 58, 59–60 (Tex. Crim. App. 1971).¹³ But the court looked beyond the fact of the convictions and specifically walked through the admonishments that Mason had received. The trial court also likely found Mason's denial of knowledge incredible considering her criminal history.

In all events, the court of appeals’ initial decision to affirm Mason's conviction was hardly surprising given the overwhelming state of the evidence and the standard of review. See Jackson, 443 U.S. at 318–19. Any rational trier of fact, including the trial court here, could have found Mason guilty beyond a reasonable doubt. See id.

IV. THE APPROPRIATE DISPOSITION

Because I would conclude that the evidence is legally sufficient to support Mason's conviction, I see reverse and remand as an effectual disposition in this case. However, our appellate rules authorize an alternative method to reach what I see as the appropriate judgment that the trial court should have rendered consistent with this opinion.

Texas Rule of Appellate Procedure 78.2 provides that this Court “may, in the interests of justice, remand the case to the trial court even if a rendition of judgment is otherwise appropriate.” Tex. R. App. P. 78.2. Additionally, Rule 78.1(f) allows this court to “vacate the lower court's judgment and remand the case for further proceedings in light of changes in the law.” Id. R. 78.1(f). Here, it may be prudent to remand the case for a new trial considering the statutory amendment or even to the court of appeals to consider the case with respect to the constitutional concerns raised by the amendment. Alternatively, Rule 18.1 leaves a brief window for the court of appeals to take such action, if any, that it deems appropriate in view of our dismissal. Id. R. 18.1.

V. CONCLUSION

I dissent from the Court's decision to dismiss the State's petition as improvidently granted and would instead grant the petition, address the merits, and uphold the conviction.

When this case first came before us, I disagreed with the Court's conclusion that “voting” under Section 64.012(a)(1) of the Texas Election Code should be construed to include casting a “provisional ballot.” Mason v. State, 663 S.W.3d 621, 638−40 (Tex. Crim. App. 2022) (Yeary, J., concurring and dissenting). I still do.¹ In my view, Appellant is guilty, if at all, only of an attempt to vote in an election in which she knew she was ineligible to vote. Tex. Elec. Code § 64.012(a)(1). At the time of Appellant's offense, an attempt to vote illegally was a lesser-included offense of illegal voting—a state jail felony rather than a second-degree felony.² I would have remanded for the court of appeals to consider whether it would be appropriate to reform Appellant's judgment to reflect conviction for the lesser-included offense of attempted illegal voting. Mason, 663 S.W.3d at 639−40 (Yeary, J., concurring and dissenting).

As the case comes to us today, however, that issue is not before us. The only question the Court granted review of today is: whether the evidence was sufficient to support a jury finding beyond a reasonable doubt on one of the discrete constituent elements of the greater offense: the culpable mental state. I believe that it is. And that element applies as much to the lesser-included attempted-illegal-voting offense as to the greater illegal-voting offense.

I also agree that it would be more appropriate to remand the case to the court of appeals in order for that court to resolve: (1) Appellant's broader sufficiency of the evidence claim in light of my conclusion about the sufficiency of the evidence to support the discrete mental state element, and (2) Appellant's claim of ineffective assistance of counsel in the first instance. With that understanding, I also dissent to the Court's improvident grant.

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.

DISSENTING OPINION

At issue here is whether the evidence was sufficient to show that Appellant actually knew that she was ineligible to vote when she cast her provisional ballot. In a holding that is clearly at odds with the trial record, the court of appeals said “no.”¹ That court's slipshod analysis of the issue undermines the ability of the State of Texas to enforce its election laws. That court's decision not only allows Appellant's fraudulent vote to go unpunished, but its faulty analysis in a published opinion makes it more difficult to punish those who illegally vote in the future.

In a sufficiency review, a court must view the evidence “in the light most favorable to the prosecution” and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”² The court of appeals recited this standard but did not in fact follow it.

Appellant pled guilty to conspiracy to defraud the United States. She was sentenced to sixty months in federal prison and to a three-year term of supervised release afterwards. She was also ordered to pay over four million dollars in restitution. While she was incarcerated, the Tarrant County Elections Administration cancelled her voter registration and mailed notice of that fact to her Fort Worth address. On August 5, 2016, she began her three-year period of supervised release. Under the law, she was ineligible to vote until she served out this three-year period.³

On November 8, 2016—a little over three months after she began serving her supervised release—Appellant showed up to vote. Election workers could not find Appellant's name in the registered-voter book or in the online voter database. Appellant nevertheless insisted that she was eligible to vote.

To obtain a provisional ballot, a person not on the voter list was required to sign an “Affidavit of Provisional Voter.” The affidavit read:

I am a registered voter of 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 terms 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.4

Appellant was on supervision for a felony. If she read the affidavit, she knew she was ineligible to vote. The court of appeals, however, held that this language “does not expressly inform the provisional voter that if any of these affirmations is untrue, the signatory is ineligible by law to cast the provisional ballot.”⁵ But that is exactly why the language is there, and any reasonable person reading the language would understand that.

Regardless, the court of appeals's crabbed reading of that language does not survive Appellant's own testimony. On cross-examination, Appellant conceded as “absolutely correct” that the language of the affidavit was “clear” that “if I'm a felon who has not concluded my sentence by being on supervised release,” then “I'm not eligible to vote.” The court of appeals nevertheless claimed that some other part of Appellant's testimony (fifteen pages before her admission that the affidavit was clear) somehow negated her admission. That other testimony was that she “now” understood that the admonishments in the affidavit laid out the requirements for eligibility to vote in Texas. But a well-known corollary to viewing the evidence in the light most favorable to the prosecution is that the trier of fact “is permitted to believe or disbelieve any part of a witness’ testimony, including a defendant.”⁶ And that corollary aside, the “I understand now” statement is just as consistent with a claim that Appellant never read the affidavit—a claim she explicitly made:

Q. [I]t's your testimony that you simply did not read this?

A. I didn't, not at all.

Appellant's claim was never that she didn't correctly interpret the language of the affidavit; it was that she didn't read it.

On that score, her claim was contradicted by two witnesses. Karl Dietrich, the presiding election judge at that precinct, recognized Appellant because she lived across the street from him. He asked Appellant whether she knew of any reason for not being in the book of registered voters, and she responded that she didn't. Dietrich instructed Appellant to read the provisional-voter affidavit, which was on the left side of the form. He ran his finger down that side of the form while instructing her. He saw that Appellant “paused and took some number of seconds to look over what was on the left” before filling out the information on the right side of the form and signing it. While he could not say with absolute certainty whether Appellant read the form—because absolute certainty would exist only if she read the form aloud or he read it to her—in his estimation Appellant read the form, and he would have given her further instructions to read it if he had thought otherwise. Dietrich signed the back of the form.

Jarrod Streibich, a sixteen-year-old election volunteer, had originally called Dietrich over for assistance when he could not find Appellant's name in the list of registered voters. He saw Dietrich assist Appellant with the provisional voter ballot. Sitting four to five feet away from Appellant while she had the provisional-voter affidavit form, he saw her “finger watching each line” of the affidavit, “making sure she read it all.”

The testimony from Dietrich and Streibich was ample evidence from which to conclude that Appellant read the form and thus knew that she was ineligible to vote.

But there is more. In her testimony, Appellant denied that she ever interacted with Dietrich. She testified that he was her neighbor, that “I know who my neighbor is,” and that Dietrich's testimony was “not truthful at all.” With that testimony, Appellant not only destroyed her own credibility but provided evidence of her own consciousness of guilt.⁷ Dietrich signed the form; of course he interacted with her. Streibich confirmed that he called for Dietrich's assistance and that Dietrich assisted Appellant through the provisional-ballot process. That Appellant felt the need to claim that Dietrich did not interact with her speaks volumes.

Appellant also testified that Streibich was “not truthful at all” in saying that he saw her go line by line with her finger. This testimony could also be viewed as Appellant making yet another false denial to distance herself from a crime she knew she had committed.

This is not a close case. I cannot agree with this Court's decision, after granting review, to now dismiss the State's petition as improvidently granted.

I respectfully dissent.

FOOTNOTES

1.   In Ramsey, the Texas Supreme Court held that, for purposes of an election dispute, “an error which directly and adversely affects the interest of the public generally, as that interest is declared in the statutes or Constitution of this state, is a fundamental error” that should be addressed without regard to preservation below or presentation by the parties. Ramsey, 205 S.W.2d at 983. While the doctrine is rarely implicated in civil disputes, it remains as a necessary check on such errors in judicial proceedings. See In re C.O.S., 988 S.W.2d 760, 767 (Tex. 1999) (analogizing to our decision in Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)); Santana, 444 S.W.2d at 615 (applying fundamental-error review to juvenile jury charge error), vacated on other grounds by, 397 U.S. 596, on remand, 457 S.W.2d 275 (Tex. 1970). It survives in Texas criminal law under our Marin rubric. Proenza v. State, 541 S.W.3d 786, 794–95 (Tex. Crim. App. 2017).

2.   The trial court deferred the sentence following Mason's 2011 plea of guilty for tampering with a governmental record. The Secretary of State does not consider deferred adjudication a final felony conviction for purposes of eligibility to vote. Middleton v. State, 634 S.W.3d 46, 51 (Tex. Crim. App. 2021) (citing Jordan v. State, 36 S.W.3d 871, 876 (Tex. Crim. App. 2001)).

3.   Mason pled guilty to one count of conspiracy to defraud the United States, a felony. United States v. Mason-Hobbs, No. 4:11-CR-151-A-1, 2013 WL 1339195, at *1 (N.D. Tex. Apr. 3, 2013); see 18 U.S.C. § 371. Mason was sentenced to five years’ imprisonment, a three-year term of supervised release, and was ordered to pay $4,206,805.49 in restitution. Mason-Hobbs, 2013 WL 1339195, at *1. Her felony conviction became final in 2013. See id.

4.   1 RR 7.

5.   I have not found a reported case that cites Section 64.012(c) or (d) other than Mason's case arising from the current offense. As detailed below, legislative history suggests the amendment revising the sufficiency standard targeted her case alone.

6.   The note to the amendment provides explicitly that: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.Act of Aug. 31, 2021, 87th Leg., 2d C.S., § 9.04, sec. 64.012, 2021 Tex. Sess. Law Serv. 3783, 3812 (codified at Tex. Elec. Code § 64.012).

7.   Under pre-civil war jurisprudence, that federal question was beyond judicial review. See Luther v. Borden, 48 U.S. 1 (1849); cf. Reynolds v. Sims, 377 U. S. 533, 582 (1964) (“[S]ome questions raised under the Guaranty Clause are nonjusticiable.”); New York v. United States, 505 U.S. 144, 183–85 (1992) (suggesting some Guaranty Clause claims are justiciable).

8.   While we have considered the authority of the legislature to uniformly repeal or alter criminal laws as an encroachment on the governor's clemency authority, the retroactive application of the Election Code revision here may also affect that power. See Vandyke v. State, 538 S.W.3d 567, 579 (Tex. Crim. App. 2017). Whether this effort is viewed as an encroachment on the executive or judicial authority (or both) is not critical now. Our decision not to reach the merits or the constitutional questions, in contrast, is.

9.   One of the earliest cases applying the willful ignorance doctrine in criminal law was Spurr v. United States, 174 U.S. 728 (1899). There, a defendant was charged with willfully certifying a check, and the prosecution had to prove wrongful intent and knowledge. Id. at 736. The United States Supreme Court approved of the use of the willful-ignorance doctrine, permitting the use of an instruction allowing the jury to convict if it found the defendant had “shut his eyes to the fact, and purposely refrained from inquiry or investigation for the purpose of avoiding knowledge.” Id. at 738–39.

10.   “Willful blindness, wilful blindness, conscious avoidance, deliberate ignorance, ostrich instructions, and Jewell instructions” are often used interchangeably in reference to “situations where an actor fails ‘to make a reasonable inquiry about suspected wrongdoing despite being aware that it is highly probable’ that the action is illegal.” Justin C. From, Avoiding Not-So-Harmless Errors: The Appropriate Standards for Appellate Review of Willful-Blindness Jury Instructions, 97 Iowa L. Rev. 275, 281 (2011) (quoting Black’s Law Dictionary 1737 (9th ed. 2009)).

11.   As the Court observed in Acosta, “if the record supports conflicting inferences, the reviewing court must ‘presume that the factfinder resolved the conflicts in favor of the prosecution’ and defer to the [factfinder's] determinations. Acosta, 429 S.W.3d at 625 (citing Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)).

12.   I note that Mason's earlier convictions were filed with the court before trial and were in the record before the trial judge sitting as factfinder.

13.   Rule 609(b) limits use of convictions after ten years to times when the witness failed to reform and continued to commit felonies and crimes involving dishonesty. See Tex. R. Evid. 609(b). The Rule appears to be best understood to reject an automatic “tacking” component that would look only to the existence of other offenses within the relevant period. Ben Evans, A Refusal to Change Despite All the Evidence, 67 Baylor L. Rev. 284 (2015). As this case was tried to the bench and involved multiple felony convictions within ten years, the distinction is immaterial.

1.   “While casting a ballot in an election seems plainly to satisfy the statute, whether executing a provisional ballot also does seems utterly up for grabs. In that case, the Court has said that, since this is not a Penal Code offense, the rule of lenity should control. See Delay [v. State], 465 S.W.3d [232,] at 251 [(Tex. Crim. App. 214)] (observing that, for non-penal code penal provisions, ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity’).” Mason, 663 S.W.3d at 639 (Yeary, J., concurring and dissenting).

2.   Acts 2011, 82nd Leg., ch. 123, §§ 16, 23, pp. 623, 625, eff. Jan. 1, 2012. Appellant committed her offense in 2016. In my concurring and dissenting opinion in this case in 2022, I mistakenly identified the range of punishments as of 2016 to be a third-degree felony for illegal voting and a Class A misdemeanor for the attempt. Mason, 663 S.W.3d at 639 (Yeary, J., concurring and dissenting). Those were the applicable ranges of punishment prior to the 2011 amendment.

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.”).

1.   Mason v. State, 687 S.W.3d 772 (Tex. App.—Fort Worth 2024).

2.   Jackson v. Virgina, 443 U.S. 307, 319 (1979) (emphasis in original).

3.   Tex. Election Code § 11.002(a)(4)(A).

4.   Emphasis added.

5.   Mason, 687 S.W.3d at 778; see also id. at 783-84.

6.   Bullock v. State, 509 S.W.3d 921, 926 (Tex. Crim. App. 2016) (quoting Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998)).

7.   See Ex parte Cook, 691 S.W.3d 532, 591 n.7 (Tex. Crim. App. 2024) (Keller, P.J., concurring) (citing United States v. Wallace, 51 F.4th 177, 182 (6th Cir. 2022) for the proposition that “false denials can suggest consciousness of guilt” and quoting United States v. Davis, 909 F.3d 9, 19 (1st Cir. 2018) (“It is a well-settled principle that false exculpatory statements are evidence—often strong evidence—of guilt.”)).

Per curiam.