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

___________________________ No. 02

- 18

- 00138

- CR

___________________________

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

Before Kerr, Birdwell, and Bassel, JJ. Opinion on Re mand by Justice Birdwell 

### C RYSTAL 

### M ASON 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 OPINION ON REMAND
T his case is on remand from the Texas Court of Cri minal Ap peals

. A f ter considering the di spositive issue remanded to us

–– whether the evidence was
suffic i e nt to sup port Crystal Mason ’ s conviction for illegal voting under the Texas
Election Code

–– we reverse t he trial court ’ s judgment and render judgment acq uitting
her

. Procedural B ackground This appeal arises from Mason ’ s conviction for illegal voting by c a sting a
p rovisional ballot in the 201 6 election while on a three

- year period of supervised
release f or the federal offense of conspiracy to de fraud th e Uni ted States

–– for which
she had already served a sixty

- month sentence of confinement

. M ason v. State , 5 98
S.W.3d 755, 762

– 63 , 765

– 66 (Tex. App.

— Fort Worth 2020) ( M ason I ) , aff ’ d in part and

rev ’ d in part , 6 63 S.W.3d 621 (Tex. Crim. App. 2022) ( Mason II )

. I n the f irst appeal, we
affirme d Mason ’ s conviction. Mason I , 598 S.W.3d at 789

. The Te xas Court of
Cri m inal Appe als re versed o ur judg ment after d etermining that we had misconstrued
the statute under which M ason was convicted

. Mason II , 663 S.W.3d at 624

. That cou rt
he ld th at to prove M ason had illegally voted under Election Code Section
64.012 (a) (1) , the S t ate had t o prove (1) that Mason k new she was on supe rvised release after having been convict ed of a fel ony and (2) that she also “ actually rea lized ”
tha t “ ‘ thes e circumstances . . . in f act ’ rendered her ineligible to vote. ” Id. at 632 (quoting Delay v. S t ate , 465 S.W.3d 232, 252 (Tex. Crim. App. 2014) ). The court3 remanded the case for us “ to evaluate the s ufficiency of the evidence under the
correct inte rpretati on of th e statute. ” Id. at 624 , 635

. Because the majority of the pertinent facts are set forth in Mason I and Mason II , we need not repeat them here. Instead, we reserve a more in

- depth discussi on f or our analysis

. Issues on R e mand
T he parties fi led new briefing on remand. In Mas on ’ s brief on remand, she
contends that the evidence is insufficient t o prove t hat she actually realized that sh e

was ine ligible to vot e when she cast her provisional ballot

. She also re

- urge s t h e complaint tha t her tr ial cou n sel was ineffectiv e. Because we determine that her first
issue has merit , we need not decide her se cond issue. See Tex. R. App. P. 47.1.
St andard of R eview and A pplicable L aw
W e must decide this case a ccording to the settled sufficie ncy standard of review required by federal due proc es s: w e view all the evidence in the light m o st favora ble to
the verdic t to determine whether any rational factfinder could have found th e crime’s

e ssential elements beyond a reasonable doubt. Jack son v. V irginia , 443 U. S. 307, 319, 99
S. Ct. 2781, 2789 (1 979) ; Queeman v. State , 520 S.W.3d 616, 622 ( Tex. Crim . App. 2017). In doing so, we compare the crime’s elements as defined by a hypothetically

corr ect jury charge to the evidence adduced at trial

. Hammack v. State , 622 S.W.3d 910, 914 (Tex. Crim. App. 202 1)

. We use this comparison even when, as her e , the tri al
court was the factfinder. See Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App.4 1997)

. A hy pothetically correct charge is one that accura tely set s out the law, is authorized by the indictment, do es not unnecessarily increase the State’s bur d en of
pro of or restrict th e State’s theories of liability, and adequately describes the particular
offe nse for which the defendant was tried. Hammack , 6 22 S.W.3 d at 914

. H ere, the indictment alleged that in the 2016 general election, Mason

vote [ d ] in an e l ection in which she knew s he was not eligible to vote

. . . after being finally convicted of the felon y of Cons piracy to Def raud the United States . . . [and ha ving] not been fully discharged fro m her sentence for the felony including any court ordered te r m of paro le , supervis ion[, ] and probation [

. ]
T he version of the statute under which Mason was charged and con victed provide d
that “ [a] person c ommits a n offense if the person

. . . votes or attempts to vote in an election in which the person kn o ws the pers on is not eligible to vot e . ” Act of May 2 6 , 1997 , 75 th Leg., R.S., ch. 864 , § 6 3, 1997 Tex. Ge n. Laws 2742 , 27 50 (a mended 2021) (current versio n at Tex . Elec. Code Ann. § 64.012(a) ( “ A person commits a n offens e if the person knowingly or intent i onally

. . . votes or attempts to vo te in an election in which the person knows the person is not eligibl e to vote
. ” ) ). Under this sta tute, the
St ate mus t prove n ot only that a person voted in an election wh ile i neligible to do so
but also that the person k new her ci rcumst ances made her i nel igible to vote in that
election. Mason II , 6 6 3 S.W. 3d at 628

– 29.
Whe ther the evidence was sufficient here t o prove th at Mason knew she was ineligible to vo te in the 2016 gener al election and did so anyway is the crux o f her compl a in t on remand.5 Review of R ecord
As the Court of Criminal Ap peals pointed out in Mason II , Maso n ’ s defensive
theories were that (1) she did not read the admonishments in the provisional

- ballot
affidavit that she signed , so she cou ld not have bee n informed i n that manner that her
ci rcumstanc es rendered her ineligible to vote ; (2 ) the government never told her that
as a convicted f elon she was ineli gible to vote ; and (3) had she known she was
ine ligible to vote, she would never have risked commi tti n g a cr ime a nd jeopar di zing
her feder al supervised r elease. Id. at 625. We will first ex am ine in detail the evidence regarding whether sh e read the provisional

- ballot ’ s affidavit warning and if she did, whether that warning was sufficient t o inform her that she was ineligible to cast a provis ional vote

. Election judge ’ s testimony an d Mason ’ s r espons ive testimony
Karl Dietr ich, the election judge for the polling place where Mason voted in
2016 , te sti fied that when the poll worker could n ot f i nd Mason ’ s name on the list of registered voter s , Di etrich was called t o assist

. D ietr i c h g reete d Mason , looked at her
driver ’ s license, and then co nfirm ed that her name was not on th e list

–– after
search ing unde r two possible la st names and by her age : And I remember asking her if she knew

-- if there was a ny reason that she knew that she wou ldn ’ t have been in the book of registered voters.
She s tated that she didn ’ t and that someone e lse from h er ho useho ld and addre s s had voted earlier in the day and something to the effect of, you know, obviously she shou ld get to vote , too.6 A fter that, I t ried to look her up in the online voter database , [ 1 ] w hich is an electronic database, and it ’ s po tentially m o re up to date, an d again, loo ked under several different names and [wasn ’ t] able to identify her as a registe red voter. [E mphas is added

. ] After being unable to fin d Mason ’ s name in the on line database, Dietrich aske d
he r if she wanted t o vote provisio nally : A n d in this c ase, because she wasn ’ t in the registered book, I couldn ’ t vote her normally. She lived at a n address

. . . she had identified already [as] inside the precinct, so I knew s he w as in the correct polling l ocation. I think I even asked her

-- beca u se we alway s ask, Hey, have you moved from this address. I confirmed that that was still the correct ad dr ess. And so I said, Well, I can ’ t vote you normally, but would you

-- do you
w ant to vote provisionally. Q. All right. And wh at was her response t o t h at?
A. Her response was in the affirmative.
Once Mason indi cated she wanted to vote provis ionally, D iet rich di d not
attempt to veri fy her registra tion via any other met hod: Q . Once Ms. Mason indicate d that she wanted to vo te provisionally,
w hat did you do?
A. . . . And so to

-- so to answer your question, what did I do, I then processed throug h it. I wa lke d through the provisional voting. As I said, we didn ’ t do it too ofte n. We have an election manu al. It has a sect ion on provisional votin g just like it has a section on setting up the machines or on other speci al cases and like if they walked in with th eir mail

- in ballot and that sort of thing.

1 Nothing in the record indicat es whet her the onl ine database would have showed why Mason ’ s name was not on the list of registered voters in the cou nty , i.e., her status as a convicted felon on supe rv ised r el ease .7 So I went to the provisi onal voter section, and

-- and I walked thr ough it and read the instruct i ons and wen t through them step by step.
Dietrich encountered an othe r person that day who s e name he c ould not locat e as a registered voter , but he took additional steps to confirm the reason that voter was
ine ligible: Q. Was she [Mason] als o

-- or did she have the option to just leave and not vote? Is that an option? A. Yes, she did. And some people di d. For instance , I had one voter come in, and

-- and he had register ed. I found him in the da tabase. I wound
u p calling and everything , and i t turned ou t that in his case, he had registered and had the right ID and everything, but he had register ed with in a 30

- day window . And you had to [have] registered at least 30 days p rior to the election.
An d when the Tarran t County e lections people iden t ified this to me [ 2 ] and I relayed that fact to him, he

-- you know, I said, Now, that might not be

2 Had Dietrich called the Tarrant County Elections Admin istration (TCEA), as he d id with the voter who had registered too late, it is possible that he would have been told that Mason was not on the list of registered voters because of her fe lo ny conviction. Cf. Tex. Elec. Code Ann. § 63.0051(a)

– (b) ( “ If the nam e of a voter who i s offer ing to vote is not on the preci nct list of registered voters, an e lection officer may contact the voter registrar regarding the voter ’ s registration status [; an d i]f the election
o fficer determines the voter is a re gistered v oter o f the territory co vered b y the
e lection but is offering to vote in the incorrect precinct, the election officer shall provide the correct precinct location information to the voter. ” ). Th e TCEA records adm itted at trial contain a screen

- cap ture printout da ted June 20 , 2013, that n otes he r registration status as “ C ” for cancelled with the followi ng reference to the Secretary of State ’ s April 26, 2013 Felon L i st in the Co mments section: “ S O S Felon List 5/21/1 3 PF. ” Indeed, th e very notic e of felony conviction s sent by the U.S. Attorn ey ’ s Of fice to the Secretary of State to be included i n the Felon List dist ributed to county elections administrations state

- wide

–– whi ch included no t only Mason ’ s feder al felony conviction but t he term of her incarceration (60 mont hs) and the three years ’ supervi sed release

–– was admitted into evidence as part of t he TCEA ’ s file

. And had8 correc t, and something migh t be different, and so I can provisionally vote you, but the reality is

. . . you didn ’ t re gister in time. An d in that case he le f t. [Emphas is added.]
Dietrich described how he helped Mason fill out her provisional ba l lot: And so as I said before, Ms. Mason had her driver ’ s licens e. It was a [n] in

- d ate valid dri ver ’ s license and had the address. So I checked that, y e s, she had the acceptable ID. [ 3 ] I remember going down this list of the reasons for voting provisionally. F ailed to present an acceptable ID is t he first one. That ’ s not the case.
V oter not on the list of registered voters, that

-- t hat was the case.

. . . .

. . . I remember that Ms. Mason and I sat down at a table, and

-- and I sat down and actually read th rough each part. The

-- I only do two or three of them. I want to make sure tha t they ’ re right.

. . . . The n I remember under neath this is this “ t o be compl e ted by the voter ” section. And it ’ s in Eng lish and Spanish, and so i t has about ten lines here

. And I remember reading this and just l ooking it over and then passing it to Ms. [ Mason ] saying, please

-- this is the part to be completed by the vo t er, please read through this and fill out this section

.

And so I ’ d been sitting at the table with her wh i le I filled out this and looking over t his. And, in fact, I think I even desc ribe d the reason and so on.

D ietr ich conveyed this readily av ailable information to Mason, based upon her sworn testimony, she po ssibly would have refrained from voting.

3 Dietr ich knew who Mason was ev en with out her lic ense because she was his neighbor. So even though Dietrich checked Mason ’ s license , he did not do so to verify her ide nt ity

. He confirmed that Mason never tried to gi v e him a fals e name or to pret end she was someo ne else.9 I had not yet signed it at that point, and I handed it ov er to her, and then she filled out this white section. [E m phasis added.]
In Mason I , we described the provisional ballot form that Dietrich had Mason
comp lete and sign 4 : “ The affidavit form has two parts: a right side with bla n ks in
which the provisional voter completes [certain] information [ 5 ] and a left side that
inclu des [certain] affirmations

. . . ” about the voter ’ s eli gibility. 598 S.W.3d at 7 63

. T he
left

- side text

–– which contains thos e affi rma tions

–– is located u nder th e ti tle, “ TO BE
COMPLETED BY VOTER ” ; is printed in both English and Spanish ; and contains
seven bo ld arrows pointing to the right

- ha nd side of the for m
. The affi rm ations read
as fo llow s : I am a registered voter in this political sub divisio n and in t he pre cinct in which I ’ m attempting to vote and have not already voted in this election (either in person or by mail). I am a re sident of this political subdivi sion, have not been finally con victed of a felony or if a felon, I have complet ed all of my pun i shment incl uding any term of incarceration, parole, supervision, period of probation, or I have been pard oned. I have not been d etermined by a final judgment of a court e xercising probate jur isdiction to be totally mentally incapacitated o r parti ally ment a lly in capac itated without the right to vote. I understand that giving false information under oath is a m isdemeanor, and I under stand that it is a felony of the 2nd degre e to vote in an e lect ion for which I know I am not eligible.

4 D ie trich identi fied th e form at trial, noting that i t was his writing and signature

“ on the back. ” A copy of a blank version of the fo rm Mason and Dietrich f il led out is attached to this o pinion as an exhibit.

5 All of the writing on the right s id e of the card was Mason ’ s .10 Id. at 763 n.1

. Signifi c antly, alth ough this language r e quires the provisional voter to
affirm that he or she is not a felon

–– or if a felon that he or she has either (a

) compl eted all of the imp osed punishment o r (b ) been pardoned

–– it does not expressly infor m the provisional v o ter that if any of these affirmations is un true, the signatory is ineligible by law to cast the provisiona l ballot.
When Dietrich was asked whether he kn ew if M ason had a ct u ally read what he
had asked her to read , Dietr ich answered,
A. I cannot say with c ertainty tha t she read it, but she certainly paused
a nd took some number of seconds to look over what was on the left. And she certainly read the right part, and she fille d it out sinc e sh e put the right informati on in the boxes. Q. No w, once she fills i t out and han ds it back to you, what do you do with it ? Is there any more additional process that you take with her?
A. Yes. That ’ s the point at whi ch I

-- well, the f irst

-- the first thi ng that I did was I looke d over the white sectio n and ensured that i t was filled out accurately, because we don ’ t want he r to have it disqual ified on some technicality or som ething. And then I flipped over to the bac k, and there ’ s lang uag e on the back tha t I affirm, or to that ef fect, that all the info rmation I provided i s accurate.
And so I

-- I remember holding up my rig ht hand and said, Do you affirm that all the informat ion you provided is accurate.
And I received a respons e in the a ffirmative, a nd I signed and dated it at t hat point. Q. Okay. S o she swore to the a ffidavit?11 A . I

-- I wouldn ’ t

-- I don ’ t think I used the word swear or
a nything, but she certainly affirm ed that she had provided accurate information. [Emphas is added.]
W hen cross

- examined about whether he though t Maso n had read the left side
of the card, Dietrich said, “ I remembe r q uite distinctly drawing my finger down that
text as I talked to her and saying, Please read over this and then fill out this secti on her e, r un ning my finger over then the right side. I di sti nctly have an image of that

memo ry. ” According to D ietrich, Mason “ distinc tly paused while reading or appearing
to read t he form prior to . . . filling out her name

. ” Dietrich did not think it w as
p ossible that Mason simply did not review the a ffi davit language bec a use he “ saw her pause and look over. ”
Dietrich testified that if he had th oug ht Mason had not read t he card , h e would
have read it aloud to her before letting her sign it. A cco r ding to Dietrich, readi ng the
card is important because before allo w ing someone to vote provisionally , it i s important to make sur e th e person i s eligible to vote. D ietr ich said that he did not
know Mason was ineligible to vote or on supervised re leas e , and he had no reason to

su spect it

. According to D i e trich , h e wa s the only person who assist ed Mason with the provisional ballot

.12 In contrast to Dietric h ’ s te stimony, Mason testified that a woman h ad helped her with the provisiona l ba llot and that she never even s aw or talk ed to Dietrich on
election d ay , a fact t hat she w as sure of becaus e he was h er ne igh bor.
When the State questioned Mas on about whether she read the left side of the card on that day , the following exc hange occurred: Q. All right. Now, you ’ ve rece ived these admonishme n ts back in 2 004, [ 6 ] and your testimony t oday in regard to Stat e ’ s Exhibit No. 8 and specifically State ’ s E xhibit No. 9, the exact affidavit, it ’ s your testimony that y ou simp ly did not read t his ?
A. I didn ’ t, not at all. I had someon e helping me. I had a woman that w as helping me, and all she e xplained to me wa s I ’ m doing it

-- well, the

- - the gentleman [ 7 ] t old me that you can do a provisional form. And on the provisional form, if you ’ r e at t he right location or if you ’ re in the righ t area, th en it ’ s goi n g t o count. If not, it won ’ t count. So th at ’ s all I

- - that ’ s all I understood that form to be, was if I ’ m here and I ’ m where I [am] supposed to vote, it ’ s going to count. That ’ s it. [E mpha sis adde d.] Mason categor icall y d enied D iet rich ’ s a c c ount of wha t happen ed that day: Q. Do you reca ll Karl Dietrich? He testified. You were in here for his te stimony, were you not?
A. I was. Q. And he said that he told you , P lease read this.
A. K arl

--

6 In context, t his reference appears to be to M ason ’ s 2004 provisional ballot , which we discuss later in our re cord review

.

7 Maso n appears to be referring to the poll wor ker who initially tried to find her name on the pol ling loc ation ’ s list of registere d voter s .13 Q. You

-- you heard that? A. I did, yes, sir. Kar l

-- Q. Did he tell you that?
A. He didn ’ t te ll me that. I didn ’ t see him. Karl is my ne ighbor.

. . . . Q. So it ’ s your

-- and let me ask you a question.
It ’ s your testimony today th at you did n ot e ven see him?
A. I

-- I did not see my neig hb or. I w o uld have

-- a ll I know is she took the

-- she to ok my ID, and they f illed out whatever they needed. She
wen t back with me, and we sat on the back table. When we sat on the back table, on ly thing I d id, she said, Make sure everything is

-- I didn ’ t

- - a m a n did n ’ t help me. A young guy helped me and

-- a y oung guy helped me a t the front when he loo ked

- - when he looked me up. That ’ s who helped me at the front.

. . . . Q.

. . . Are you saying that Karl D ietr ich

-- are you infe rring he
wa s not trut hfu l in h i s testimony, y es or no? A. He was not truthful at all. [Emphasis adde d

. ]
Lat er, she testi fied si milarly: Q. Now, you also heard from K arl Dietrich that he said not only di d he instruc t you to read the affidavit but he also had you affir m
. . . what ’ s in there. A. I heard that, sir, and tha t ’ s incorrect. I didn ’ t even

-- I didn ’ t dea l with him

. If he feel

- - I remember

-- I gave him my ID and

-- like I said, I gave14 him my ID [ t he record is uncl ear to whom Mason is referring ] . If he fille d out w hat he f il

led out, he wasn ’ t the one that was wit h me.
I went and sat at the table with a la dy. She h elped me out. From there, she walk ed m e over to the booth. From there, when I walke d over from the boot h, that was it. If I would have seen my nei ghbor, I would ha ve spoke to my neighbor. My neighbor kn ow I went to prison. My neighbor know when I came bac k home. My neighbor know when I was fix ing up my house. He ’ s my neighbor. We share the same str eet. I m ean, we are right

- - we ’ re not around the co rner fr om each ot her. They are my neighbors, too, over th ere, they son. I didn ’ t know; my kids knew, you know . We been there for nine years.

. . . S o if I would have seen him, I would have had [a] convers ation with h im. [Emphasis added.]
Th us, as to the circu mstances o f what Mason was told by Dietrich or what
Dietrich said he saw her do wh ile filling out th e pro visio n al ballot, the trial c ourt
could have chosen to believe either Dietrich or Mason , but it could not have chose n

to be lieve both

. See Chambers v. S tate , 805 S .W.2d 459, 461 (Tex. Crim. App. 1991) ( “ As factfinder, the jury is entitled to judge the credi bility of witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. ” ). I f
Mason n ever s aw or interacted with D ietrich th a t day, then nothing he testified to
about wh at he told her regarding the provisional ballot an d what he saw her do as a
result o f his assistance

–– helping her , telling her to read the form ’ s left

- side language , and wa t ching her p a use as if she we re reading it

–

– co uld have been true
.15 Poll worker ’ s testimony
T he po ll w orker who initially helped Mason at the polli ng place and tried to look up her name in the registration list testified that he suggested that she fill ou t a
pro visional

- b all ot form , a nd he conf i rmed that Mason went with Dietr i ch to fill it out
. T he poll worker explained that Maso n was sitting to his ri ght, four to five fe et away
from h im , as she filled out the form with Dietrich

. He tes tified that he saw “[ h]e r finger watching each line making s ure s he read it all. ” As with her testimony regarding Dietrich, Mason testified that t he po ll worker ’ s testimony “was not tru thfu l at all

. ”
Mason ’ s admission to a reporter
The S tate cross

- examined Ma son about whether she had told a r eporter that
sh e had “ skim me d ” the left

- side affidavit languag e before signing the provisional
ballot: Q. Do you recall telling the repor ter

- - I believe it was an Anna Tinsley and a Deanna Boyd. Yo u told them you did, i n fact, skim the affi davit. You, quo te , skimmed it.
A. T hat ’ s

- - that ’ s not true. Q. Okay. So they ’ re lying, too?
A. And

-- and I didn ’ t talk to a Tinsley. I talked to Dean na Boyd. Q. Deanna Boyd?
A. Correct. Q. And Deanna

-- yo u told Deanna Boyd that you did, in fact, ski m th is langua ge?16 A. N o, sir, I di dn ’ t. Q. Okay. Have you had a chance to lo ok at the article? A. No, I h aven ’ t. After having her memor y refreshed with t he news article, Ma son attempted to expla in what she might have m eant: Q. And so you told Deanna B oy d that you

-- again, this is yes or n o

-- that you had skimmed through the form, correct?
A . I don ’ t recall saying that, but I ’ m sure I did. I had to scan through it, sir. I put my information on it. So we

-- we would s ay yes. Q. No

-- skim through the a ffidavit language?
A. I did n ’ t know. Q. Yes or no? A. No, I didn ’ t, not at al l.
The State continued to press Mason on thi s point: Q. So at this point

- - w e ’ ve already been ove r this

-- Karl Dietrich and [the poll worker] , but you ’ re also asser ting that Deanna Boyd is untruth ful, too? Yes or no?
A. What I ’ m saying is she ’ s in the

- - she ’ s

-- she

-- she writes in the paper. You know, I ’ m saying

-- I know what I ’ ve said and what I told her, and I also w as

-- I was

-- I also was communic ating with her through my Fa cebook, too.
S o, yeah, I do remember

-- I do remember the things that I told her, and I told her that I wouldn ’ t dare v ote if I

-- if I wouldn ’ t have dared

-- if I would have seen that, I would have got up and walked away. I did n ’ t even wan t to go vote. My mom made me go vote.17 As wi th Mason ’ s testimony about Dietr ich, the tri al court did not have to
believe M ason ’ s denial

. S ee id.
Mason ’ s other relevant tes timony
M ason tes tif ied that when she was in prison , no one ever to l d her that as a
convicted felon she could not vote and that n othi ng in her release or ientatio n materials told her that as a convicted f el on she could not vote

. According to Mason,

n o one from the United States government had ever to ld her she w o uld be ineligible

to vote. Her federal probation officer , to who m she re porte d for super vised r e lease,
confi rmed that he had not told Mason she was ineligible to vote and , to his knowledge, no one in that de partment had told her she wa s inel igible to vote; it was simply something that the officers did not do.
Mason testi fied t hat she remembered filling out the provision al ba llot. But sh e emphatically denied having read the for m ’ s l eft

- side text
. According to Mason, she

nev e r looked at the left side of the form ; she sim ply filled o u t what “ the lad y ” told her
to fill out. M ason s aid the person who tol d her she could vote a provisional ballot

–– someone other than D ietrich

–– also told her t hat her provisional ballot would c o unt if she was in the right place to vote but that if she was not at the correct p olling plac e, the vote w ould n ot count
. Mason testified that w hen confronted with the fact that she was not shown as a registered v oter in the pol ling

- place or onlin e list of registered voters , i t neve r crossed
her mind that she wa s ineligible to vote. Instead, she was thinking that she (a) still had18 a voter registration card that she hadn ’ t brought wi th her , (b) was living a t the same
residence where she had been l iving when s he voted in 2008 , and (c) had her ID with
her ; thus, she did not understand why she would not be on the list of registered

voters
. Whe n asked whether she would have jeopardi ze d her freed om to vote had she
known she was ineligible t o do so , Mason answered no.
Mason appeare d to agre e with the prosecutor that if she had read th e left

- side affidavit language w hen fi ling out the provisional

- b allot form , she woul d have known
that s he was ineligible to vote: Q.

. . . . It ’ s saf e to say that anyone reading this language w ould know , If I ’ m a felon or if I ’ m a felon who has n ot concluded my sentence being on supervis ed rel ease

- - A. Correct

. Q.

-- i t ’ s cl ear I ’ m not el i gible t o vot e ? T hat ’ s cle ar

- - A. Correct. She also agree d

–– when asked , “ To anyone who would have read it, it ’ d be clear this [vot ing in an election kn owing one is not eligible to do so] is a felony ? ”

–– th at “ [i]f it
was read , yes, it would have been ver y clear. ”
T oward th e end of trial, t he t rial judg e q ue stioned Mason directly and asked
her , “ You ’ re e xplaining to me, despite all the doc uments an d the things that you ’ ve done in federal court and kn owing that this is a legal document, you wouldn ’ t read
that? ” Mason re plied, “ I didn ’ t really know it w as a legal document. All I know is it

was a . . . provisional form

. ” The trial judge als o qu e ried, “ [Y] ou ’ re te lling me you19 didn ’ t read this, and because you d idn ’ t read it, you didn ’ t reali ze that you no longer
had t he right to vote ? ” Mason replied, “ I had no idea. . . . I just listened to ex actl y wh at they w ere telling me, and I j ust did it

. ” In looking at the exhibit of the provisional ballot she had si gned , Mason said, “ I didn ’ t pay attention to any of this ” ; she stated that the on ly thing s he had ver ified was whether everythi ng on the form

mat c hed her ID. Mason i nformed the jud ge that when sh e was arrested for illegal voting, she told the officer that she ha d not illegally vote d because she “ used [her] I D. ”
Mason ’s 2004 provisiona l vote Tarrant County election recor ds admitted into ev idence show that Mason also

cast a prov isional ballo t in the 2004 election. That provisional bal lot served to register
he r to v ot e in the future. She voted therea fter in the 2008 election. Although the only
par t of the 200 4 provi sional ballot form admitted into evidence was the side of the
form that M a son filled out herself and si gned, t he Tarrant County a ssistant voter regi strati on manager testified th at Mason wou ld have had to have seen the same
written affidavit a dmonishments contained in the 2016 provis ional ballot form; in other words, the two b allot forms were t he same

. Analys is
T he S tate contends that it prese nted su fficie nt evide nce that Mas on knew that
she was ineligible to vote because

• c irc umst antial evidence from Dietrich and the poll worker is sufficient to rai se a reasonable inference t hat Mason read the left

- side affidavit lan guage of the provision al

- ba llot fo rm whe n she vo ted in 2016 ,20 • t he language in the 2004 and 2016 provis ional ball ots was sufficient to warn her that she w as ineligible to vote in 2016 because of her intervening felony conviction , and

• Mason admitted that if she had read the 2016 p r ovi sion al bal lot ’ s le ft

- side affi davit lang uage , she would have known that she wa s not eligible to vote in that election

. In her dissent in Mason II , Judge Slaughter pointed out other parts of the record
that she conside red relevant to our suffici e ncy analysis :

• While Mason was i n carcerat ed, the TCEA sent her a notice

–– to the same address wher e she returned to live after h er incarceration and where she was living when she voted in 2016

–– that her voter regist r ation had bee n cancelled because of her f elony convictio n , and that not ice was never returned to th e T CEA.

• In addition to the fact that much of her testimony directly conflicted with Dietrich ’ s and the poll wo rker ’ s, Mason had a prior felony conspiracy to def raud convi c tion , from which the trial judge also cou ld hav e reasonably inferred that she was not credible

.

• The trial judge could h ave reasonably inferred that by t ell ing the poll w orker that she had lived at the same address sinc e 2008

–– without rev ealing th at she h ad not lived there during t he years she wa s inca rcerated

–– Ma son was trying to conceal the fact that she was a convicted f elon

. 6 6 3 S.W.3d at 6 44

– 45 (S l a ughter, J., dissenting )

.21 T h at M ason appeared to have read the left

- side affidavi t language ; agreed at trial that if she had read it, she would h ave kn own that she was ineligible to vote ; was not credible ; and pos sibly tried to conce al her status as a felon by no t reve aling that she had not continuously lived at the address where she was living when she vot ed is n ot sufficient proof to show that sh e actu ally real ize d her status as a felon on federally supervised r elease made her ineligi ble to vote i n the 201 6 election
. As we pointed out in discussing the e vidence at tria l, the trial judge as factfinder

was entitled to disbelieve all of Mason ’ s test imony , in particu l ar her testimony that she
did not read the left

- s ide affidavi t lang uage and that she di d not k now she was ineligible to vote

. But finding Mason to be not credible

–– and disbelieving her
protestat io n of actual knowledge

–– doe s n ot suffice as proof of guilt. A s the Texas
Court of Cri minal Appeals has m ad e clear,
The fac t that the trial judge was entitl ed to disregard the appellant ’ s testimony does not mean that the miss ing elements of the offense are
s upplied by rejecting this t estimony. The b urden of proof is on the State, and it is incumbent on the State to prove every element of the offense. Th e evidence in this ca se is not rendered suffici ent by the trial judge ’ s apparent disbelief of appellan t ’ s testimony. Wright v. State , 603 S.W.2d 838 , 840 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh ’ g) (citation omitted)

. In civil cases, we presume that a party w ho signs a document knows its

con tents. In re Bank One, N.A. , 21 6 S.W.3d 82 5 , 826 (Te x. 2 007) (orig. proceeding)

. But the same does not ne cessar ily hold true in criminal cases

. For example, we do not
presume that a defendant understood the meaning of a legally defined term simply
because the trial court read that term t o hi m. Burke v. Sta te , 80 S.W.3d 82, 95 (Tex.22 App.

— Fort W orth 2002, no pe t.) (o p. on reh’g) (hol ding that we do not presume that

a trial jud ge ’ s use of the term “ reckless aggravated assault ” infor m ed the defendant
that his k nowledge of and consc ious disregard of the r is k wer e es sential elements of
the offense to which he had pl eaded) . And although “ [k] nowledge may be proven with
circ umstantial evidence and inferred from the acts, words, and conduct of the accused , ”
Hammack , 6 22 S.W.3d at 915

– –

in other words, ba sed on reason ab le i nferences from the
evidence rather than speculatio n

–– cir cumstantial evidence of mens rea is subject to the same sufficiency standard as other evidence , s ee, e.g. , Laster v. State , 275 S.W.3d 512, 521 ( Tex. Crim. App. 2009)

. Thus, that Ma son may h ave re ad a n affidavit that

• asked her to af firm that she wa s not a convicted felon , or that if she was a convicted f elon to affirm that she had completed her punishment , but that also

• did not expressly warn her that being a felo n who h as not complete d her punish ment renders her ineligible to cas t a provisional ballot at that time

–– much less use a prov isional ballot f or the purpose of register ing to vote in the future even i f her provisional v ote did not count

–– and that also

• did n ot warn her that , based on the nature of her conviction, s he migh t be ineligible to vot e indefinitel y even if she had completed her punish ment 8 is not enough , 9 standing alone, to show that Ma son “actually realized” from reading
the lef t

- side affidavit lan guage that she was voting illeg ally by casting the provisiona l

8 As we pointe d out in Mason I , “ it appears that the Texas constitution does not allow the legislature t o re

- enfranchise a person convicted of ‘ briber y, perjury, f orgery, or other high crimes , ’ ” regardless of the genera l r e

- enfranchisement for per sons co n vict ed of any f elony in Election Code Section 11.002(a)(4)(A)

. 598 S.W.3d at 767 n.9.

9 In Mason I , we n ot ed

–– in the context of determining whether Maso n could have adequat ely raised a mistake

- of

- law defense

–– that “ at the ve ry least [the affidavit23 ba llot in the 2016 elect ion

. 10 We must look at th e remai nin g evidence to det ermine if
the trial judge could have reasonably inferr ed from that evidence and the fact that
Mason read the affidavit language that she actually rea lized th at she was ineligible to

c a st th e pr ovisio nal ba llot. See Hooper v. State , 214 S.W.3d 9, 13 (Tex. C rim. App. 2007) ( “ In reviewing the sufficiency of th e evidence, we should look at ‘ events occu rring before, during [ , ] and after the commission of the offense and may rely on actions o f
the defendant which show an understanding and common design to do the p rohibited

act. ’ ” (quoting Cordova v. S t ate , 698 S.W. 2 d 107, 111 (Tex. Crim. App. 1985 )).
I t i s impor t ant that Mason had pr ovisional ly voted once bef ore, not be cause it
makes it more likely

–– in the c ontext of all of the evidence

–– th at she knew what the

w arnings ] should h ave se rved their purpose of warning Mason that as a convicted felon, she could still have a le ga l impedi ment to voting. ” Id. at 780 n.2 7. But whethe r she m ight have realized from t he warnings that she could have so me kind of impediment to voting is not th e same as actually rea lizing she was ineligible to vote by law . As the Cour t of Criminal A ppeals noted in Mason II , “ [t] o construe [Elec tion Code Sec tion 64 .012(a)(1)] to mean that a person can be g uilty even if she does not

‘ know[ ] the pe rson is no t elig ible to vote ’ is to disregard the words the Legislature intended [and] turns the knowled ge requirement into a sort of negligence scheme wherein a per son can be guilty because she fails to take reasonable care to ens ure that she is eligible to vote. ” 663 S. W.3d at 629.

10 We reco gnize that the affidavit ’ s purpose is to actually inform the person c asting the provi sional ballot of the co ndition s necessary t o legal ly vote and the
c onsequences of voting when not eligible , a s well as to serve as at least some evide n ce of that person ’ s knowledge of those conditions

. See Common Cause G a . v. Kemp , 347 F. S upp. 3d 1270, 1292 (N.D. Ga. 2018) ( “ T he purpo se of HAVA ’ s provisi onal voting section is to ensure that voters are allowed to vote (and to have their votes coun ted)
w

hen they appear at the proper polling place and are otherwise eligible to vote

. ” (emphas is added) ). Ne verth eless, the adequacy of the af fidavit langu age to fulfill that purpose is relevant to the issues in this case

.24 req uirements for voting legally were when she voted in 2016 , but because when she signed the prov isional ballot form in 2004

–– even though she was not a regis tered

voter at that time

–– tha t form served as her v oter regist ration for the future

. See Tex.
Elec. Co de Ann. § 65.056(a) ( “ If the affidavit on the envelope of a rejected provis ional ballot contai ns the information necessary to enable the person to re gist er to vote under Chapter 13, t he voter registr ar sha ll

. . . treat the copy as an application for regis tration under Chapter 13. ” ). And she was not pr osecuted for casting th at
pr ovisional ballot

–– “ voting ”

–– even though she was no t registered at that tim e (and therefore ineligible to vot e )

. 11 Her vote si mply w asn ’ t counted. T h us, the reasonable
inference from this evidence is not that reading the left

- side affidavit language while

co mpleting an d castin g her 2004 provi sional ballot w ould have adequately w ar ned
Mason in 2016 that she was ine ligible to vote ; rathe r, this evidence weigh s in favor of
a conclusion th at Mason did not realize in 2016 that she woul d be voting illegally by

cast ing the provisional ballot

. 12
Mason testified that it would be clear to any on e readin g the affidavit lan guage that a felo n on super vised release was ineligible to vote and that the a ffidavit clearly

11 A s one of the amici ha s pointed out: “ If the mere reading of a provisio nal ballot affidavit

. . . can show actual knowledge o f voter ineligibility, anyone who read s and sign s the affidav it

— but is not in fact registered to vote (notwithstanding any go od faith mistake in registra tion stat us)

— i s guilty of violating the criminal statute. ”

12 No evidence sho ws that Mason attempted to re

- regi st er to vote a fter being
re leased from federal prison , i.e., evidenc e that would show she knew her voter registration had been c ancel led

.25 warned that voting w hile i neligible to do so is a felony

. But she also appear ed to
indicate that she did not understand the affidavi t ’ s importance at the time she vot ed: Q. . . . And you u nderstand the importance of these a dmonishments. Th is essentially lays out the requirements for eligibility to vote in an elec tion here in the st ate of Texas. Do you understand ?
A. I understand it no w , yes, sir. [Emphasis added.] Thus, ev en when co nsider ed with the rest of the evidence, Mason ’ s
app are nt agreement with t he prosecutor is not enough to show t hat she actually knew
that her ci rc umstances when voting in 2016 m ade her ineligible to vo te.
And that , when talking to the poll worker, Mason mig ht hav e purposefull y omitted the information that s he had not lived at her address for the time of her
incarceration

–– an d therefore might have be en trying to co nceal the fact that she had
been incarce rated

–– is likewise not sufficient to prove she k n ew that he r s tatus made
her ine ligible to vote by casting a p rovisional ballot. Dietrich testified that Mason told
him she did not know why he r n ame was n ot on the list of registered vo ters at the polling pl ace . Dietrich even tried to look u p her name in the onli ne d at abase (after which Mason did not leave but pe rsisted in her effort t o vote)

. And D ietrich himself did
not know that Mason was actually ine l ig

ible to vote ; that fact was brought to his attention
some time after she had cast her p rovisional ballot and left t he polling place

. Finally,
Mas on di d not try to hide her identity from him, even producing her ID for i ns pection

. W e conclu de that th e quantum of the evidence presente d in this c ase i s
in sufficient t o support the conclusion that Mason actually rea li zed th at she vot ed26 knowing that she was i neligible to do so and , therefore, insuf ficient to support her
convict ion for illegal vot in g under Election Code Section 64.012(a)(1)

. In the en d, the
State ’ s pr imary evidence wa s that Mason read the words on the af fid avi t
. But even if
she had read th em, they are not sufficient

–– even in the cont ext of the rest of the
evidence in thi s case

–– to pr ove beyond a reasonable doubt that she actually knew that being on supervised release a fter having served her entire federal sente nce of
incarceration made he r ineligible to vote by ca sting a provisional ballot when she did

s o . See Tex. Elec. Code Ann. § 6 4.012 (c)

. W e t herefore sustain Mason ’ s first issue.
C onclusion
Because we have det ermi n e d that the evidence is insufficient to su pport
Mason ’ s guilt , we revers e the trial court’s judgment and render a judgment of acquittal. See Tex. R. App. P. 43.2(c), 51 .2(d); Greene v. Massey , 437 U.S. 19, 24

– 25, 98
S. Ct . 2151, 2154

– 55 (1978); Burks v. U nited S tates , 437 U.S. 1, 16

– 18, 98 S

. Ct. 2141,
2150

– 51 (1978); Winfrey v. State , 393 S.W.3d 763, 774 (Tex. Crim . App. 2013)

. /s/ Wade Birdwell
Wade Birdwell Justice
Publish
Delive re d : March 28, 202427 A ttachme nt A ( Blank P rovisional Ball o t Form )