In the Court of Criminal 

Appeals of Texas

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No. PD-0881-20

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CRYSTAL MASON,

Appellant,

v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review

From the Second Court of Appeals

Tarrant County

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YEARY, J., filed a concurring and dissenting opinion.

I concur in the Court’s disposition to remand this case to the court 
MASON – 2

of appeals for further consideration, although I take issue with some of 

the Court’s reasoning along the way. Moreover, my remand would 

embrace more for the court of appeals potentially to reconsider than the 

Court has prescribed in its opinion today. I write separately to explain 

where I agree and disagree with the Court and how and why I would 

expand the scope of the Court’s remand.

I. PROOF OF KNOWLEDGE

A. The Statute is Plain

First, I readily agree with the Court’s conclusion that the court of 

appeals in this case misconstrued the plain language of the illegal voting 

statute, which on its face requires proof that the actor knew she was 

ineligible to vote, and not just that she was aware of the circumstances 

that rendered her ineligible to vote. Majority Opinion at 13; see TEX.

ELEC. CODE § 64.012(a)(1) (making it an offense if a person “votes or 

attempts to vote in an election in which [the person] knows [she] is 

ineligible to vote”). That said, I also agree with the dissent that, because

the language of the statute plainly requires proof of the actor’s 

knowledge that she was ineligible to vote, there is no need to “construe” 

an ambiguous statute in the way the Court found necessary in Delay v. 

State, 465 S.W.3d 232 (Tex. Crim. App. 2014). Dissenting Opinion at 4. 

All the Court needs to do here, it seems to me, is to simply disavow the 

case that the court of appeals relied upon as authority to ignore the 

statute’s plain import: Thompson v. State, 9 W.W. 486, 486–87 (Tex. Ct. 

App. 1888). See Mason v. State, 598 S.W.3d 755, 768–70 (Tex. App.—

Fort Worth 2020) (citing Thompson for the proposition that “the State 

does not have to prove that the defendant subjectively knew that voting 
MASON – 3

[under conditions making her ineligible to vote] made the defendant 

ineligible to vote under the law”).1

B. Remand is Appropriate

I also agree with the Court that, having determined that the court 

of appeals conducted its legal sufficiency analysis under a faulty 

construction of the applicable Election Code provision, the prudent 

course is to remand the case to that court for further proceedings rather 

than for us to conduct the legal sufficiency analysis for the first time 

under the appropriate construction of the statute. Majority Opinion at 

17. That way, we are able to obtain the lower court’s perspective on the 

sufficiency of the evidence under the proper construction of the statute. 

Cf. McClintock v. State, 444 S.W.3d 15, 21 (Tex. Crim. App. 2014) (a 

remand for the court of appeals to consider as-yet unresolved questions 

following this Court’s disposition of an initial petition for discretionary 

1 The court of appeals may certainly be forgiven for relying on 

Thompson for what it perceived to be “binding” authority. Mason, 598 S.W.3d 

at 768–69 & n.11. In Thompson, our predecessor, the Texas Court of Appeals, 

was construing a provision of the 1879 Penal Code that just as plainly required 

knowledge on the part of a would-be voter that he was “not qualified” before he 

could be convicted of voting illegally. Article 165 of the 1879 Penal Code made 

it an offense for any person to “vote, or offer to vote,” at any election while 

“knowing himself not to be a qualified voter[.]” Despite this plain language, the 

Court of Appeals held that evidence that the defendant knew he had been 

convicted of a felony constituted sufficient proof that he also knew he was “not 

qualified” to vote, and that it must be presumed he knew that “the law made 

one of the consequences of the conviction his disqualification to vote.” 

Thompson, 9 S.W. at 486. This presumption made proof of actual knowledge of 

his disqualification under the statute unnecessary, and a jury instruction 

equating knowledge of his conviction with knowledge of his disqualification as 

a voter was therefore “correct and unobjectionable.” Id. We need not overrule 

Thompson since it was construing a different statute. But we should certainly 

disavow its failure to abide by plain statutory language.
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review means that “our resolution of the issue (if any should even be 

necessary after a remand) would benefit from a carefully wrought 

decision from the court of appeals”).2

C. What Knowledge must be Established?

With respect to the Court’s holding that knowledge of ineligibility 

is required, there are three other matters I wish briefly to address in 

this admittedly omnibus concurring opinion. The first two matters echo 

criticisms that the dissenting opinion has made of the Court’s opinion 

today that I think bear emphasis. The third relates to the Court’s failure 

to first consider an obvious constitutional question about the Texas 

Legislature’s most recent amendment to the statute at issue before 

considering that amendment to be applicable in this case.

1. Substantive Statutory Requirements

First, as the dissent points out, the Court’s opinion appears to 

suggest that, to be found guilty of committing an offense a person must 

2 What is more, a remand would allow the court of appeals to reevaluate its disposition of some of Appellant’s ineffective assistance of counsel 

claims—claims which it also originally disposed of, at least partly, based on its 

misconstruction of the statute. See Mason, 598 S.W.3d at 785 (rejecting 

Appellant’s claim that trial counsel should have called additional witnesses to 

establish that she lacked knowledge that she was ineligible to vote on the basis 

that proof of such knowledge was not necessary for conviction); id. at 786–87 

(rejecting Appellant’s claim that trial counsel should have explored potential 

bias of the precinct election judge on the basis that it would not have made a 

difference to her defense, since the State need not prove she knew she was 

ineligible to vote); id. at 788 (rejecting Appellant’s claim that trial counsel had 

an actual conflict of interest because the only defense it could have raised 

incorrectly assumed that the State must prove Appellant was aware of her 

ineligibility to vote). This Court’s construction of the statute today could cause 

the court of appeals to want to revisit its initial resolution of these ineffective 

assistance claims.
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first be shown to have known that her conduct specifically violated “the 

Election Code.” See Majority Opinion at 16 (“Now that we have 

recognized that section 64.012 requires individuals to know they are 

ineligible to vote to be convicted of illegal voting, what does it 

substantively mean to knowingly violate the Election Code?”) (emphasis 

added); Dissenting Opinion at 6 (arguing that “Section 64.012 requires 

only that the Appellant knew she was ineligible to vote. It does not 

require her to know that voting while ineligible violates the Election 

Code.”). I agree with the dissent that nothing about the statute 

specifically demands proof that an accused was even aware of the 

existence of an Election Code, much less that such a code provides for 

requirements that must be met before a vote may be cast. The statute 

only requires proof that the person knew that he or she was ineligible to 

vote, whatever may have been the source of that knowledge.3 To the 

extent that the Court’s opinion seems to increase the State’s burden by 

requiring proof of knowledge of the existence and contents of the 

“Election Code,” it overstates the requirements of the law.

3 Imagine a circumstance in which an election judge tells a prospective 

voter: “Because you are a convicted felon, and because you have not been 

pardoned or finally released from supervision, you are ineligible to vote.” The 

accused person then says, “Well, I haven’t seen such a law myself, but I accept 

what you have told me, and I am going to vote anyway.” And the accused person 

then casts a ballot in an election. Would this evidence satisfy the State’s burden 

under the statute? Or would the State also be required to prove: (1) that the 

accused knew that Section 11.002 of the Texas Election Code establishes 

qualifications for voters; and (2) that the accused knew that she specifically 

failed to meet those specific statutory qualifications? To the extent the Court 

seems to require the latter, it requires proof that the statute does not 

contemplate. 
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2. Burden of Proof

Moreover, as the dissent further observes, the court also seems to 

require a heightened burden of proof with regard to knowledge of 

ineligibility. See Majority Opinion at 17 (“[T]he 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.”); Dissenting Opinion at 5 (arguing that

“[b]y referring to a person’s ‘actual’ realization that she is ineligible to 

vote, the Court’s opinion implies that a heightened standard of 

knowledge applies here[.]”). The statute plainly requires proof that 

Appellant knew she was ineligible to vote. That does not mean the State 

must satisfy anything other than proof beyond a reasonable doubt of 

that fact, by either direct or circumstantial evidence. I agree with the 

dissent that, to the extent that this phrase—“actually realized”—may 

import some meaning beyond mere awareness that the person is 

ineligible to vote, it overstates the required culpable mental state. See

TEX. PENAL CODE § 6.03(b) (“A person acts knowingly, or with 

knowledge, with respect . . . to circumstances surrounding his conduct 

when he is aware . . . that the circumstances exist.”).

3. Retroactive Law?

Finally, I must express some misgivings about the Court’s 

application of this recent statutory corroboration requirement to the 

present case. I am aware, of course, that the Legislature purported to 

make this new requirement applicable to any non-final conviction—and, 

indeed, applicable to this very case, according to the Court’s discussion 
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of legislative history.4 Majority Opinion at 14–16. I find it disturbing 

that nobody has yet bothered at least to inquire whether such a 

retroactive application of a corroboration requirement can be squared 

with the Texas Constitution’s prohibition against retroactive laws. See

TEX. CONST art. I, § 16 (“No . . . retroactive law . . . shall be made.”).

II. BUT IS A PROVISIONAL BALLOT REALLY A “VOTE”?

If, pursuant to the Court’s remand, the court of appeals were to 

determine that the evidence is insufficient to establish that Appellant 

was aware that she was ineligible to vote, that would end the 

prosecution (subject to further discretionary review in this Court). 

Should it determine, instead, that the evidence is sufficient, it seems to 

me that there would be more for the court of appeals to decide before it 

could uphold a conviction. I say this because I disagree with the Court’s 

conclusion today that “voting” under Section 64.012(a)(1) of the Election 

Code should be construed to include casting a “provisional ballot.”

I am unimpressed with the Court’s argument for why casting a 

provisional ballot constitutes the act of voting for purposes of the illegal 

voting statute. Majority Opinion at 21–25. Noting that this is a question 

4 As the Court explains, Majority Opinion at 8–9, the most recent 

Legislature has added Subsection (c) to Election Code Section 64.012, which 

now provides that “[a] person may not be convicted solely upon the fact that 

the person signed a provisional ballot affidavit under Section 63.011 [of the 

Texas Election Code] unless corroborated by other evidence that the person 

knowingly committed the offense.” Acts 2021, 87th Leg., 2nd C.S., ch. 1 (S.B. 

1), § 9.03, eff. Dec. 2, 2021. This amendment was expressly made applicable to 

any non-final offense committed before, on, or after its passage. See id. § 9.04

(“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.”).
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of first impression, Majority Opinion at 21, the Court’s logic consists 

mainly of simply faulting Appellant for failing to produce any authority 

for the proposition that casting a provisional ballot does not constitute 

the act of voting. See e.g., id. at 22–24 (Appellant “fails to cite” any 

authority to establish that a “provisional ballot” is any different than a 

regular ballot). Neither the Penal Code’s definition in Title 8 of the verb 

“to vote,” nor any of the various dictionary definitions the Court borrows 

from the court of appeals’ opinion, really sheds light on the question. See

id. at 22–23 (recognizing, but failing to adopt, the definition of “vote” in 

TEX. PENAL CODE § 36.01(4), and then alluding to the various dictionary 

definitions of the verb “to vote” as noted by the court of appeals, quoting

Mason, 598 S.W.3d at 774).

The Court conspicuously avoids what seems to me to be the most 

pertinent fact that informs the inquiry; namely, that a provisional ballot 

is . . . well, provisional. That is to say, it is conditional, contingent, 

inconclusive, not yet (and perhaps never to be) permanent. See BLACK’S 

LAW DICTIONARY 1480 (11th ed. 2019) (“1. Provided for the time being to 

supply a place to be occupied in the end by some more permanent 

arrangement; temporary or conditional”); WEBSTER’S NEW WORLD 

COLLEGE DICTIONARY 1171 (5th ed. 2014) (“arranged or established for 

the time being, pending permanent arrangement or establishment”); 

NEW OXFORD AMERICAN DICTIONARY 1406 (3rd ed. 2010) (“1 arranged or 

existing for the present, possibly to be changed later; put into circulation 

temporarily, usually owing to the unavailability of the definitive issue”); 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1827 (2002) (“1 :

provided for a temporary need : suitable or acceptable in the existing 
MASON – 9

situation but subject to change or nullification”). While casting a ballot 

in an election seems plainly to satisfy the statute, whether casting 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, 465 S.W.3d at 251 (observing that, for 

non-penal code penal provisions, “ambiguity concerning the ambit of 

criminal statutes should be resolved in favor of lenity”).

On the other hand, perhaps a provisional ballot could be said to 

support a prosecution under the statute for attempted illegal voting, in 

that the actor might pursue it in the hope that what starts out as a 

“provisional” vote will ultimately be recognized and counted later on. At 

the time of Appellant’s offense, an attempt to vote illegally (with the 

same requisite specific knowledge of ineligibility) was a lesser-included 

offense of illegal voting—a Class A misdemeanor rather than a thirddegree felony.5 As part of my remand in this case, I would have the court 

of appeals consider, if necessary, whether it would be appropriate to 

reform Appellant’s judgment to reflect conviction for this lesser-included 

attempt offense. See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. 

App. 2014) (holding that an appellate court may reform a judgment to 

reflect conviction for a lesser-included offense if the factfinder’s 

conviction for the greater offense necessarily embraced all elements of 

the lesser-included offense and the evidence, while not supporting the 

greater offense, did support all elements of the lesser-included offense).

5 Under the 2021 amendment, both voting and attempting to vote with 

knowledge of ineligibility were made Class A misdemeanors. Acts 2021, 87th 

Leg., 2nd C.S., ch. 1 (S.B. 1), § 9.03, eff. Dec. 2, 2021.
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III. CONCLUSION

With these observations, I concur in the Court’s decision to 

remand the case to the court of appeals for further consideration of 

Appellant’s first ground for review. I dissent to the Court’s holding that 

to cast a “provisional ballot” constitutes “voting” under the statute, and 

to the Court’s failure to broaden the scope of the remand to the court of 

appeals for consideration, if necessary, of whether Appellant might be 

guilty of, if not the greater offense of voting while ineligible, then of the 

lesser-included offense of attempting to vote while ineligible.

FILED: May 11, 2022

PUBLISH