FILED

THOMAS A WILDER, DIST. CLERK
TARRANT COUNTY, TEXAS

JUN 11 2018
CAUSE NO. 1485710

TIME

rtt

THE STATE OF TEXAS

vs.
CRYSTAL MASON

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DE

IN THE 432ND JUDICIAL

§
§
§
§
§

DISTRICT COURT OF
TARRANT COUNTY, TEXAS

FINDINGS OF FACT • CONCLUSIONS OF LAW AND ORDER
The Court now has before it, the Defendant's Motion for New Trial. After
considering the law and evidence regarding Defendant's asserted grounds, and the
State's response to such grounds, the Court enters the following Findings ofFact and
Conclusions of Law and DENIES Applicant's Motion:

Findings of Fact
1.

On March 28, 2018, following a bench trial, the Court found the Defendant
guilty of illegal voting under TEX. ELEC. CODE § 64.012(B) and sentenced her to
five years' confinement in the Institutional Division of the Texas Department of
Criminal Justice. [Judgment of Conviction by Court-Waiver of Jury Trial,
cause no. 1485710D]

2.

On April 25, 2018, the Defendant timely filed a Motion for New Trial alleging
that: (a) evidence of bias was not explored; (b) evidence of the Defendant's
knowledge and intent was not investigated or presented at trial; and (c) the
evidence is legally insufficient to prove the elements of voting and ineligibility
to vote. [Defendant's Motion for New Trial and Request for Hearing] See TEX.
R. APP. P. 21.4(a) (setting forth 30-day timeframe to file motion for new trial).

3.

The thirty-day deadline to file an amended motion for new trial in this case was
April 27, 2018. See TEX. R. APP. P. 21.4(b) (setting forth timeframe to amend
motion for new trial).

4.

On May 10, 2018, after the thirty-day deadline to amend her motion for new
trial, the Defendant sought to file an Amended Motion for New Trial alleging
that: (a) her trial counsel provided ineffective assistance because he did not
1

 move to quash the indictment, explore the bias of Karl Dietrich, and present
evidence of the Defendant's lack of knowledge and intent; (b) the evidence is
legally insufficient to prove the elements of voting and ineligibility to vote; and
(c) TEX. ELEC. CODE §11.002(4) is unconstitutionally vague. [Defendant's
Amended Motion for New Trial and Request for Hearing]
5.

On May 10, 2018, the Defendant's current attorney, Alison Grinter, presented a
Motion for Leave to Amend Motion for New Trial and a proposed Order on
Motion for Leave to Amend Motion for New Trial to the Hon. George
Gallagher, presiding judge of the 396th Judicial District Court. [Motion for
New Trial RR 1: 6-7; see Defendant's Motion for Leave to Amend Motion for
New Trial; Order on Motion for Leave to Amend Motion for New Trial]

6.

On May 10, 2018, Judge Gallagher signed the Order on Motion for Leave to
Amend Motion for New Trial granting the Defendant leave to file her Amended
Motion for New Trial. [Motion for New Trial RR 1: 7; see Order on Motion for
Leave to Amend Motion for New Trial.]

7.

The Court was unaware on May 10, 2018, that Ms. Grinter approached Judge
Gallagher to consider or sign an order granting a motion in this case. [Motion
for New Trial RR 1: 8]

8.

Ms. Grinter did note-file her Motion for Leave to Amend Motion for New
Trial, the proposed Order on Motion for Leave to Amend Motion for New Trial,
or the Amended Motion for New Trial before she approached Judge Gallagher.
[Motion for New Trial RR 1: 7]

9.

Ms. Grinter did not seek to have counsel for the State accompany her when she
approached Judge Gallagher on May 10, 2018. [Motion for New Trial RR 1: 67]

10.

On May 10, 2018, Ms. Grinter e-filed the Amended Motion for New Trial, the
Motion for Leave to Amend Motion for New Trial, and the Order on Motion for
Leave to Amend Motion for New Trial signed by Judge Gallagher with the
District Clerk. [Motion for New Trial RR 1: 7]

11.

The State's first notice of the Defendant's Amended Motion for New Trial, her
Motion for Leave to Amend Motion for New Trial, and the signed Order on
Motion for Leave to Amend Motion for New Trial was when counsel for the
2

 State received them via e-service at 10:52 a.m. on May 10, 2018. [Motion for
New Trial RR 1: 7]
12.

On May 17, 2018, the State filed a Motion to Set Aside Order on Motion for
Leave to Amend Motion for New Trial objecting to the Court considering the
untimely-filed Amended Motion for New Trial.

13.

On May 21, 2018, the State filed the State's Objection to Defendant's Amended
Motion for New Trial and Response to Defendant's Motion for New Trial.

14.

On May 25, 2018, the Court held a hearing on the State's Motion to Set Aside
Order on Motion for Leave to Amend Motion for New Trial, the Defendant's
Amended Motion for New Trial, and the Defendant's Motion for New Trial.
[Motion for New Trial RR 1: 5-66]

15.

Atthe May 25, 2018, hearing the State continued to unequivocally object to the
Court considering the Defendant's untimely-filed Amended Motion for New
Trial. [Motion for New Trial RR 1: 5-8]

16.

The Court gave Ms. Grinter an opportunity at the May 25, 2018, hearing to
present any evidence she might have that the State had previously consented to
the Court considering her untimely-filed Amended Motion for New Trial, and
she declined to do so. [Motion for New Trial RR 1: 9]

17.

Ms. Grinter acknowledged that the Court could not consider the Defendant's
untimely-filed Amended Motion for New Trial in light of the State's objection.
[Motion for New Trial RR 1: 9-1 O]

18.

Ms. Grinter withdrew the Defendant's untimely-filed Amended Motion for New
Trial. [Motion for New Trial RR 1: 9-1 O]

19.

On May 23, 2018, the ACLU Foundation of Texas and the Texas Civil Rights
Project filed an amicus letter brief in support of the Defendant's untimely-filed
Amended Motion for New Trial addressing new arguments that were never
raised by the Defendant at trial, in the Defendant's untimely-filed Amended
Motion for New Trial, or in the Defendant's timely-filed Motion for New Trial.
[See Amicus letter brief]

20.

In light of the State's objections, the Court granted the State's Motion to Set
Aside Order on Motion for Leave to Amend Motion for New Trial signed by
3

 Judge Gallagher on May 10, 2018; ruled that it could not and would not
consider the Defendant's Amended Motion for New Trial that was untimely
filed on May 10, 2018; and proceeded to hear the Defendant's Motion for New
Trial that was timely filed on April 25, 2018. [Motion for New Trial RR 1: 1011]
21.

The Defendant's retained trial counsel, J. Warren St. John, testified at the
hearing on the Defendant's timely-filed Motion for New Trial. [Motion for
New Trial RR 1: 15-47]

22.

Mr. St. John also represented the Defendant in federal court in cause number
4:11-CR-00151-A when she pleaded guilty on November 23, 2011, to the
federal felony offense of conspiracy to defraud the United States and when her
punishment was assessed on March 19, 2012, at sixty months' incarceration in
the United States Bureau of Federal Prisons, a three-year term of supervised
release after completion of her custody sentence, and restitution of
$4,206,805.49. [Motion for New Trial RR 1: 17; Trial RR2: 17-18; Trial RR3:
S-X 1]

23.

While representing the Defendant in her federal case, Mr. St. John advised her
that a felony conviction would result in the loss of her right to vote for a period
of time. [Motion for New Trial RR 1: 21-23]

24.

In light of the State's objection to the Court considering claims raised after the
deadline to amend motions for new trial, the Court will not consider the
Defendant's allegations raised for the first time at the May 25, 2018, hearing
that Mr. St. John provided ineffective assistance by representing her at trial
knowing that he had a conflict of interest. [Motion for New Trial RR 1: 22-28,
34-35, 50-51]

25.

Even if the Defendant had timely asserted her conflict-of-interest claim, she has
not demonstrated that such conflict existed. [Motion for New Trial RR 1: 2228, 34-35]

26.

In light of the State's objection to the Court considering claims raised after the
deadline for the Defendant to file an amended motion for new trial, the Court
will not consider the Defendant's allegations raised for the first time at the May
25, 2018, hearing that Mr. St. John provided ineffective assistance by not
seeking to recuse the trial judge after the judge disclosed that he knew State's
4

 witness Karl Dietrich. [Motion for New Trial RR 1: 29-34; see Trial RR 2: 9495]
27.

Even if the Defendant had timely asserted her recusal allegations, the trial judge
did not discuss the Defendant's case with Mr. Dietrich, and Mr. St. John did not
believe there was any legal basis to seek arecusal. [Trial RR2: 94-95; Motion
for New Trial RR 1: 29-34]

28.

The Defendant asserted in her timely-filed Motion for New trial that there was a
failure to explore Dietrich's "bias" because he did not personally admonish her
regarding her potential ineligibility to vote. [Defendant's Motion for New Trial
and Request for Hearing]
a.

State's witness Mr. Dietrich was the election judge at the poll where the
Defendant voted on November 8, 2016. [Trial RR 2: 56, 59]

b.

Mr. Dietrich lived across the street from the Defendant on November 8,
2016. [Trial RR 2: 56]

c.

In preparing for trial, Mr. St. John asked the Defendant if she knew
anyone who had been at the polling location, but the Defendant did not
mention knowing anyone there. [Motion for New Trial RR 1: 19]

d.

In preparing for trial, Mr. St. John read all names on the State's witness
lists to the Defendant, including Mr. Dietrich's name, and the Defendant
responded "no" when Mr. St. John asked if she recognized any of the
listed names. [MNT RR 1: 28-29]

e.

Soon after Mr. Dietrich began testifying at trial, the Defendant told Mr.
St. John for the first time that Mr. Dietrich was her neighbor. [MNT RR
1: 29]

f.

When the Defendant went to the poll to vote on November 8, 2016, her
name was not in the book of registered voters. [Trial RR 2: 60]

g.

Mr. Dietrich asked the Defendant if she knew any reason why her name
was not in the book, and she responded that she did not know of a reason,
that someone else from her household had voted earlier in the day, and
that "obviously she should get to vote, too." [Trial RR 2: 60]
5

 h.

When Mr. Dietrich was unsuccessful in finding the Defendant's name in
the online voter database, he asked if she wanted to vote provisionally,
and she responded affirmatively. [Trial RR 2: 60, 62]

1.

Mr. Dietrich asked the Defendant to read and fill out the Affidavit of
Provisional Voter, at which time the Defendant "paused and took some
number of seconds to look over what was on the left" and to read and fill
out the section on the right of the document. [Trial RR 2: 67-68, 71] 1

J.

Mr. Dietrich testified at trial that, after the Defendant filled out the
information in the provisional affidavit, she responded affirmatively
when he held up his right hand and asked if she affirmed that all the
information provided was accurate. [Trial RR2: 71-72]

k.

Mr. Dietrich testified on direct examination by the State that he did not
know when the Defendant voted on November 8, 2016, that she was a
convicted felon who was ineligible to vote. [Trial RR 2: 91-92]

I.

During cross-examination, Mr. St. John asked Mr. Dietrich about why he
did not tell the Defendant that she could not vote if she was a convicted
felon, and Mr. Dietrich responded that he did not tell her because he "had
no reason to suspect that she was a convicted felon." [Trial RR 2: 94]

m.

The facts that the Defendant asserts Mr. St. John should have explored
with Mr. Dietrich were presented during the witness' trial testimony.
[Trial RR 2: 91-92, 94]

n.

IfMr. St. John had asked the cumulative questions now suggested by the
Defendant, it would not have changed the Court's evaluation of the
evidence in finding Appellant guilty of illegal voting.

o.

The Defendant did not call Mr. Dietrich to testify at the May 25, 2018,
hearing, and she has presented no evidence of what specific questions
should have been asked and what Mr. Dietrich's responses would have
been. [Motion for New Trial and Request for Hearing]

p.

There was no evidence presented at the hearing on the Defendant's
timely-filed Motion for New Trial that Mr. Dietrich ever harbored any

I

The Court also notes the Election Clerk Jarrod Streibich testified that he observed Defendant read the provisional ballot
affidavit and specifically recalled "her fmger watching each line making sure she read it all." [Trial RR 2: 102]

6

 type of"bias" toward the Defendant, much less a "bias" that contributed
to the Defendant voting illegally. [Motion for New Trial RR 1: 4-66]
29.

The Defendant asserted in her timely-filed Motion for New Trial that Mr. St.
John failed to investigate or present testimony from her mother, Sharica
McGraedy, and her niece, Joeanna Jones, regarding her knowledge and intent
when she voted. [Defendant's Motion for New Trial and Request for Hearing]
a.

The Defendant did not call Ms. McGraedy or Ms. Jones to testify at the
hearing on her timely-filed Motion for New Trial.

b.

In preparing for trial, Mr. St. John talked to Ms. McGraedy and the
Defendant's daughter, both of whom said that the Defendant believed she
could vote in the November 8, 2016, election. [Motion for New Trial RR
1: 19]

c.

Mr. St. John did not recall ifhe talked to Ms. Jones. [Motion for New
Trial RR 1: 19]

d.

Mr. St. John did not call Ms. McGraedy or Ms. Jones to testify at trial
because they were not necessary witnesses since the Defendant testified
that she believed she could vote and that her mother encouraged her to
vote. [Motion for New Trial RR 1: 21]

e.

The Defendant testified extensively at trial that she did not know she was
ineligible to vote on November 8, 2016, and that she did not read the
admonishments about voting eligibility on the provisional affidavit given
to her at the polling location before she cast her vote. [See generally
TrialRR2: 107-61]

f.

The Defendant's trial testimony was the best evidence of her alleged
knowledge and intent when she signed the provisional affidavit and cast
her vote.

g.

The Defendant testified at trial that her mother, Ms. McGraedy,
encouraged her to vote. [Trial RR 2: 116]

h.

Ms. McGraedy's and Ms. Jones' personal opinions contained in their
affidavits attached to the Defendant's Motion for New Trial reflect no
basis for personal knowledge about whether the Defendant was eligible to
7

 vote or about whether the Defendant believed that she was eligible to
vote on November 8, 2016. [Affidavit in Any Fact by Joeanna Jones,
attached to Defendant's Motion for New Trial; Affidavit in Any Fact by
Sherrica McGraedy, attached to Defendant's Motion for New Trial]

30.

1.

The Defendant testified at trial that she went to the poll with Ms. Jones,
that Ms. Jones realized she was at the wrong polling location, and that
Ms. Jones then "automatically went to the car"; therefore, Ms. Jones was
not present when the Defendant filled out and affirmed the information in
the provisional affidavit and electronically cast her vote. [Trial RR 2:
118-19]

J.

Ms. McCready' s and Ms. Jones' s personal beliefs that the Defendant was
eligible to vote are irrelevant to whether the Defendant voted illegally.

k.

The facts contained in Ms. McGraedy's and Ms. Jones' affidavits would
not have changed the Court's evaluation of the evidence in finding the
Defendant guilty of illegal voting.

The Defendant asserted in her timely-filed Motion for New Trial that Mr. St.
John should have introduced her work timecard for November 8, 2016, to
contradict the testimony of State's witnesses about what time she arrived at the
polling location. [Defendant's Motion for New Trial and Request for Hearing]
a.

In preparing for trial, Mr. St. John and the Defendant discussed "in
detail" what time she left work in Dallas on election day. [Motion for
New Trial RR 1: 19-20]

b.

Although Mr. St. John did not introduce the Defendant's timecard
attached to her timely-filed Motion for New Trial, the Defendant testified
at trial about her work schedule on election day. [Trial RR 2: 114-16]

c.

The Defendant's timecard showing the hours she worked on election day
is irrelevant to her defensive theory that she lacked knowledge of her
ineligibility to vote. [See KForce timecard attached to Defendant's
Motion for New Trial and Request for Hearing]

d.

It was undisputed at trial that the Defendant was the person who appeared
at the polling place on November 8, 2016, filled out a the Affidavit of
Provisional Voter, and electronically cast her vote; thus, the Defendant's
8

 timecard showing her work schedule would not have proven any fact of
consequence at her trial.

31.

32.

e.

The information in the Defendant's timecard for November 8, 2016,
would have been cumulative of evidence presented at the Defendant's
trial. [Trial RR 2: 114-16]

f.

The Defendant's timecard for election day would not have changed the
Court's evaluation of the evidence in finding the Defendant guilty of
illegal voting.

The Defendant asserted in her timely-filed Motion for New Trial that the
evidence is legally insufficient to prove that she voted because her provisional
ballot was rejected and was not included in the actual vote tally. [Defendant's
Motion for New Trial]
a.

On November 8, 2016, the Defendant appeared at the poll, filled out an
Affidavit of Provisional Voter, and affirmed the information in the
affidavit was accurate. [Trial RR 2: 59, 62-68, 114, 117; Trial RR 3: S-X
9]

b.

The Defendant submitted her vote electronically on November 8, 2016,
after filling out and affirming the language in the provisional affidavit.
[RR 2: 64, 152]

The Defendant asserted in her timely-filed Motion for New Trial that the
evidence is legally insufficient to prove that she was ineligible to vote.
[Defendant's Motion for New Trial]
a.

The Defendant testified at trial that she is a convicted felon. [Trial RR 2:
108]

b.

The Defendant plead guilty on November 23, 2011, to the federal felony
offense of conspiracy to defraud the United States in cause number 4: 11CR-00151-A and her punishment was assessed on March 19, 2012, at
sixty months' incarceration in the United States Bureau of Federal
Prisons, a three-year term of supervised release after completion of her
custody sentence, and restitution of$4,206,805.49. [Trial RR 2: 17-18;
Trial RR 3: S-X 1]
9

 c.

After serving her term of federal imprisonment, the Defendant began her
three-year period of supervised release for her federal conspiracy-todefraud conviction on August 5, 2016. [Trial RR 2: 19-20]

d.

The Defendant testified at trial that, when she was released from federal
prison, she was placed on supervised release, which is supervised by a
federal probation officer. [RR 2: 11 O]

e.

Mr. St. John testified at the May 25, 2018, hearing that based on his
recollection the Defendant's federal supervised release made her
ineligible to vote. [Motion for New Trial RR 1: 38]

f.

The Defendant had been on her three-year period of supervised release
for approximately three months when she voted on November 8, 2016.
[See Trial RR 2: 19-20]

g.

The Defendant was on supervised release for her federal felony
conviction when she voted on November 8, 2016. [Trial RR 2: 20-21]

h.

The Defendant remained on supervised release for her federal felony
conviction at the time of her trial in this case. [Trial RR 2: 21]

1.

Kenneth Mays, a supervisory United States Probation Officer for the
Northern District of Texas who assisted in supervising the Defendant,
testified at trial that the Defendant was well aware that she was on a term
of supervised release. [Trial RR 2: 20, 22; S-X 1]

J.

On November 8, 2016, the Defendant completed and executed an
Affidavit of Provisional Voter, which stated in relevant part: "I ... have
not been finally convicted of a felony or if a felon, I have completed all of
my punishment including any term ofincarceration, parole, supervision,
period of probation, or I have been pardoned." [Trial RR 2: 47, 49-50;
Trial RR 3: S-X 8, 9]

k.

The Affidavit of Provisional Voter completed and affirmed by the
Defendant on November 8, 2016, states: "I understand that it is a felony
of the 2nd degree to vote in an election for which I know I am not
eligible." [Trial RR 2: 49-50; Trial RR 3: S-X 8, 9]

10

 I.

The Defendant testified at trial that she filled out the white portion of the
provisional affidavit and that everything on that portion of the document
was true and correct. [Trial RR 2: 114, 117]

m.

The Defendant agreed with the State during cross-examination that the
provisional affidavit's language makes it clear that a felon who has not
concluded her sentence because she is on supervised release would not be
eligible to vote and that it is a second-degree felony to vote in an election
in which a person knows she is not eligible. [Trial RR2: 144-45, 150-51]

n.

The defensive strategy at the guilt-innocence phase of the trial, based on
the Defendant's testimony, was that the Defendant did not read the
admonishments in the provisional affidavit, that the government did not
inform her that she could not vote as a convicted felon, and that she
would not have voted had she known she was ineligible. [See generally
Trial RR 2: 112-68]

o.

The defense at trial never argued or otherwise asserted that the Defendant
was actually eligible to vote on November 8, 2016.
Conclusions of Law

I.

The Defendant's Amended Motion for New Trial was untimely because it was
filed more than thirty days after the date when the Court imposed her sentence
in open court. TEX. R. APP. P. 21.4(b). Because the State objected to the Court
considering issues not raised in the Defendant's timely-filed Motion for New
Trial, the Court is barred from considering any of the grounds raised by the
Defendant outside the thirty-day period provided by TEX. R. APP. P. 24.l(b).
See State v. Arizmendi, 519 S.W.3d 143, 150-51 (Tex. Crim. App. 2017); State
v. Moore, 225 S.W.3d 556, 569-70 (Tex. Crim. App. 2007).

2.

Because the amicus letter brief of the ACLU Foundation ofTexas and the Texas
Civil Rights Project was filed in support of the Defendant's untimely-filed
Amended Motion for New Trial, it addresses no issues that the Court has
authority to consider. See Arizmendi, 519 S. W.3d at 150-51; Moore, 225
S.W.3d at 569-70. Alternatively, the Court will not consider the amicus letter
brief because it addresses arguments that were never raised by the Defendant at
trial, in the Defendant's untimely-filed Amended Motion for New Trial, or in
the Defendant's timely-filed Motion for New Trial, and no exceptional
11

 circumstances exist to consider it. See Christopher M v. Corpus Christi Indep.
School Dist., 933 F.2d 1285, 1292 (5th Cir. 1991) (amicus curaie cannot raise
issue raised by neither party absent exceptional circumstances); see Lopez v.
Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 862 (Tex. 2000) (appellate
court could not consider arguments raised by amicus curiae that were not raised
by parties themselves).
3.

The Defendant's allegations that Mr. St. John had a conflict of interest or was
ineffective for not seeking to recuse the trial judge are untimely because they
were brought up for the first time during the May 25, 2018, hearing, which was
more than thirty days after the date when the Court imposed the Defendant's
sentence in open court. TEX. R. APP. P. 21.4(b). The State's objections to the
Court considering untimely claims in this case bar the Court from considering
these grounds. See Arizmendi, 519 S.W.3d at 150-51; Moore, 225 S.W.3d at
569-70.

4.

A defendant in a criminal trial must establish the truth of the allegations
contained in her motion for new trial. Martin v. State, 823 S.W.2d 395, 397
(Tex. App.-Texarkana),pet. ref'd, 830 S.W.2d 137 (Tex. Crim. App. 1992).

5.

a.

The Defendant failed to prove her claim that a "bias" of Mr. Dietrich was
not explored during trial because the facts that she alleges should have
been explored were, in fact, introduced during trial. See id. (defendant
must establish truth of allegations in motion for new trial).

b.

The Defendant failed to prove her claim that Mr. St. John did not
investigate or present evidence of her knowledge and intent because the
facts she alleges should have been explored were introduced during trial.
See id. (defendant must establish truth of allegations in motion for new
trial).

Assuming, arguendo, that the Defendant's timely-filed Motion for New Trial
encompasses claims that Mr. St. John rendered ineffective assistance by failing
to explore the alleged "bias" of Mr. Dietrich and by failing to investigate and
present evidence regarding the Defendant's knowledge and intent, the
Defendant must establish that counsel's performance was deficient and the
deficiency resulted in prejudice. Wiggins v. Smith, 539 U.S. 510, 521 (2003);
Stricklandv. Washington, 466 U.S. 668, 687 (1984); Perezv. State, 310 S.W.3d
12

 890, 892-93 (Tex. Crim. App. 2010); Ex parte Briggs, 187 S.W.3d 458, 466
(Tex. Crim. App. 2005).
a.

The Defendant has not affirmatively established deficient performance by
showing that Mr. St. John's acts or omissions that are alleged to
constitute ineffective assistance fell below an objective standard of
reasonableness under prevailing professional norms. See Wiggins, 539
U.S. at 521; Ex parte Briggs, 187 S.W.3d at 466. She has not overcome
the strong presumption that Mr. St. John's conduct fell within the wide
range of reasonable professional assistance. See Strickland, 466 U.S. at
689; State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008); Ex
parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007).

b.

Complaints of uncalled witnesses are not favored because the
presentation of testimonial evidence is a matter of trial strategy. Coble v.
Quarterman, 496 F.3d 430, 436 (5th Cir. 2007). Mr. St. John's decision
not to call unnecessary witnesses or present cumulative evidence did not
constitute deficient performance. See id. (counsel's decision not to
present cumulative testimony does not constitute ineffective assistance);
Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (mere fact other
witnesses might have been available not sufficient ground to prove
ineffective assistance). The Defendant's complaints second-guessing the
reasonable strategic decisions of her experienced trial counsel do not
support an allegation of ineffective assistance. See Strickland, 466 U.S.
at 689 ("A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight"); Ex parte
Flores, 387 S.W.3d 626, 633-34 (Tex. Crim. App. 2012) ("Both prongs
of the Strickland test are judged by the totality of the circumstances as
they existed at trial, not through 20/20 hindsight"); Ex parte Ellis, 233
S.W.3d 324, 330 (Tex. Crim. App. 2007) (reviewing courts must be
highly deferential to trial counsel and avoid deleterious effects of
hindsight).

c.

To establish prejudice, the Defendant was required to prove "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Ex parte Flores, 387 S.W.3d at
633 (footnote omitted). A "reasonable probability" is a "probability
sufficient to undermine confidence in the outcome," meaning that
13

 "counsel's errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable." Strickland, 466 U.S. at 694. The
Defendant must affirmatively prove prejudice, and it is not enough to
show that the errors of trial counsel had some conceivable effect on the
outcome of the proceedings. Id. at 693; Ex parte Flores, 387 S.W.3d at
633.
d.

6.

Given the cumulative nature of the evidence that the Defendant alleges
Mr. St. John should have presented at trial, the Defendant has not met her
burden to establish a reasonable probability that she would have been
acquitted had trial counsel presented the evidence. See Hill v. Mitchell,
400 F .3d 308, 319 (6th Cir. 2005) (to establish prejudice, new evidence
must differ in a substantial way in strength and subject matter from
evidence actually presented); see also Parker v. Allen, 565 F.3d 1258,
1279, 1283 (11th Cir. 2009) (no prejudice where additional testimony
cumulative).

With regard to the Defendant's claim of legal insufficiency, a person commits
the offense of illegal voting if she votes in an election in which she knows she is
not eligible to vote. TEX. ELEC. Code§ 64.012(a)(l). Viewed in the light most
favorable to the Court's judgment, any rational factfinder could have found the
State proved beyond a reasonable doubt the essential elements that the
Defendant voted and that she was ineligible to vote. See Jackson v. Virginia,
443 U.S. 307, 318-19 (1979); see Robinson v. State, 466 S.W.3d 166, 172 (Tex.
Crim. App. 2015) (same standard oflegal-sufficiency review applies to jury and
bench trials).
a.

In order to prove that the Defendant voted, nothing in the express
language of§ 64.012(a)(l) required the State to show that her vote was
included in the final voter tally. See TEX. ELEC. CODE§ 64.012(a)(l); see
also Lebo v. State, 90 S.W.3d 324 (Tex. Crim. App. 2002) (statutory
interpretation begins with statute's plain language).

b.

The language of TEX. ELEC. CODE§ 64.012(a)(l) required only that the
Defendant "vote," which she did when she cast her electronic ballot. See
BLACK'S LAWDICT. (10th ed. 2014) (defining "vote" as "[t]he expression
of one's preference or opinion in a meeting or election by ballot, show of
hands, or other type of communication).
14

 7.

c.

Nowhere does the Election Code state that it is a defense to prosecution
for illegal voting if election officials discover an unqualified voter's
ineligibility before counting her ballot in the final voter tally. See TEX.
ELEC. CODE§ 64.012.

d.

Given that the Defendant had served only three months of her courtordered three-year term of supervised release, the Defendant was not
eligible to vote when she cast an electronic ballot on November 8, 2016,
because she had not been fully discharged from her sentence for her
federal felony conviction for conspiracy to defraud the United States. See
TEX.ELEC. CODE§§ 11.00l(a)(l) (defining eligibility to vote), 11.002(4)
(defining who is qualified voter).

The Defendant's Motion for New Trial filed on April 25, 2018, is denied.

SIGNED AND ENTERED this

,t/,/4.

day of June 2018.

~~-·~·

JUDGE PRESIDIN
432°d JUDICIAL DISTRICT COURT
TARRANT COUNTY, TEXAS

15

 ALEO

THOMAS A WILDER, DIST. CLERK
TARRANTCOUNlY,TEXAS

JUN 11 2018
CAUSE NO. 1485710

TIME

BV

THE STATE OF TEXAS

CRYSTAL MASON

~9~

DEPUTY

IN THE 432ND JUDICIAL

§
§
§
§
§

vs.

=

DISTRICT COURT OF
TARRANT COUNTY, TEXAS

ORDER
In light of the foregoing findings of fact and conclusions oflaw, the Court is of
the opinion that Defendant's Motion for New Trial should be and is hereby DENIED.
The Clerk of the Court is ORDERED to furnish a copy of these Findings of
Fact and Conclusions of Law and Order to Defendant's counsel Alison Grinter,
alisongrinter@gmail.com, or at her most recent address for service, and to the PostConviction Section of the Tarrant County Criminal District Attorney's Office.

SIGNED AND ENTERED this

//

,Ii,

day of June 2018.

f.f:fi, .rf)

I

JUDGE PRESIDING
432°d JUDICIAL DISTRICT COURT
TARRANTCOUNTY,TEXAS

16