i NO. 09-14-00458-CR AND NO. 09-14-00461-CR In the Ninth Court of Appeals Beaumont, Texas SYBIL DOYLE, APPELLANT AND ROBERTA COOK, APPELLANT v. THE STATE OF TEXAS, APPELLEE APPEALS FROM CAUSE NOS. 12-03-02583 AND 12-03-02585 359TH DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS HON. JOHN STEVENS PRESIDING APPELLANTS’ BRIEF Stephen Casey Texas Bar No. 24065015 CASEY LAW OFFICE, P.C. 595 Round Rock West Drive Suite 102 Round Rock, Texas 78681 Telephone: 512-257-1324 Fax: 512-853-4098 [email protected]ORAL ARGUMENT REQUESTED Counsel for Appellants Sybil Doyle and Roberta Cook ACCEPTED 09-14-00458-CR NINTH COURT OF APPEALS BEAUMONT, TEXAS 5/15/2015 10:38:04 PM CAROL ANNE HARLEY CLERK
Transcript
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NO. 09-14-00458-CR AND NO. 09-14-00461-CR
In the Ninth Court of Appeals
Beaumont, Texas
SYBIL DOYLE, APPELLANT AND ROBERTA COOK, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
APPEALS FROM CAUSE NOS. 12-03-02583 AND 12-03-02585 359TH DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS
HON. JOHN STEVENS PRESIDING
APPELLANTS’ BRIEF
Stephen Casey Texas Bar No. 24065015
CASEY LAW OFFICE, P.C. 595 Round Rock West Drive Suite 102 Round Rock, Texas 78681 Telephone: 512-257-1324 Fax: 512-853-4098 [email protected]
ORAL ARGUMENT REQUESTED
Counsel for Appellants Sybil Doyle and Roberta Cook
ACCEPTED09-14-00458-CR
NINTH COURT OF APPEALSBEAUMONT, TEXAS
5/15/2015 10:38:04 PMCAROL ANNE HARLEY
CLERK
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IDENTITY OF PARTIES AND COUNSEL
Appellants
Roberta Cook and Sybil Doyle
Trial Counsel Jarrod Walker LAW OFFICE OF JARROD WALKER 300 W. Davis Street Conroe, Texas 77301 936-539-3335 (phone) 936-756-7262 (fax) Appellate Counsel Stephen Casey CASEY LAW OFFICE, P.C. 595 Round Rock West Drive Suite 102 Round Rock, Texas 78681 512-257-1324 (phone) 512-853-4098 (fax)
Appellees The State of Texas
Trial and Appellate Counsel David Glickler Jonathan White ATTORNEY GENERAL OF TEXAS P.O. BOX 12548 Austin, Texas 78711 512-463-3088 (phone) 512-370-9728 (fax)
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TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................ 1 STATEMENT OF THE CASE ............................................................................ 4 ISSUES PRESENTED .......................................................................................... 5 STATEMENT OF FACTS .................................................................................... 6 SUMMARY OF THE ARGUMENT ................................................................. 14
The Texas Election Code employs both an indefinite and a circular standard for Appellants to determine “residence.” It is too vague. The indictment should have been quashed. Plain and simple. .................................................................................................... 15 The trial court erred as a matter of law in denying the motion for directed verdict because at no point did the prosecution, in the bounds of it case in chief, provide legally sufficient evidence upon which a rational jury could find, beyond a reasonable doubt, that either Doyle or Cook “knew” they were not eligible to vote. .......................................................................................................... 15 Even assuming the State cleared the legal sufficiency for a directed verdict in its case in chief, the full record below very clearly proved as a matter of law that no rational jury could have found the essential elements of the offense—that Appellants “knew” they were ineligible—beyond a reasonable doubt. ............................................................................................................ 16 Both Appellants presented their uncontroverted testimony that they believed they were legally voting, did not believe it was illegal, and had reviewed authoritative opinions of law from officials and agencies charged with enforcement of voting laws. This entitled them to the Mistake of Law defense, and it thus affixed based on their testimony. The judgment should be REVERSED. ................................................................................................ 18
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Trial counsel never attempted to introduce several items of evidence that would have further proven his case, or to file a sufficient post-trial motion detailing the errors at trial. The case should be reversed for a new trial based on ineffective assistance of counsel. ..................................................................................................... 18
STANDARDS OF REVIEW ............................................................................... 19 Standard for Legal Insufficiency ............................................................................. 19 Standard for Directed Verdicts ............................................................................... 20 ARGUMENT ........................................................................................................ 20 1. The Texas Election Code employs both an indefinite and a
circular standard for Appellants to determine “residence.” It is too vague and reflects an ad hoc policy debate that is constitutionally infirm as a criminal standard. The indictment should have been quashed. Plain and simple. .............................................. 20
A. Texas Attorney General Opinion GA-0141 demonstrates
the definition of “residence” in the Election Code is unconstitutionally vague. .................................................................... 23
B. The common language of the statute leaves “temporary”
and “purpose” open to broad, vague interpretation and thus arbitrary enforcement ................................................................. 26
C. The definition of “residence” requires a person of
ordinary intelligence to identify where a conflict exists between the statutory definition exception and the common law, a task fraught with indeterminacy. .............................. 29
D. The overwhelming public records subject to judicial
notice demonstrate a multitude of people legally voting from non-residence locations. ............................................................ 30
2. The trial court erred as a matter of law in denying the motion
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for directed verdict because at no point did the prosecution, inside the bounds of its case in chief, provide legally sufficient evidence upon which a rational jury could find, beyond a reasonable doubt, that either Doyle or Cook “knew” they were not eligible to vote. ....................................................................................... 35
A. Stilwell’s testimony did not prove “knew” beyond a
reasonable doubt, but focused on explaining the nature of the district as a policy decision and as a justified political subdivision. ......................................................................................... 35
B. McDuffee’s continuously retreated from a clear
statement, other than post-hoc vicissitudes, that his vote was illegal. Likewise he never testified that Appellants’ “knew” their vote was illegal. ............................................................. 37
C. The 1991 voter registration law change removed
“permanent” from “permanent residence address” on the voter registration application. ............................................................ 46
3. Even assuming the State cleared the legal sufficiency for a
directed verdict in its case in chief, the full record below very clearly proved as a matter of law that no rational jury could have found the essential elements of the offense—that Appellants “knew” they were ineligible—beyond a reasonable doubt. ............................................................................................................ 46
4. Both Appellants presented their uncontroverted testimony that
they believed they were legally voting, did not believe it was illegal, and had reviewed authoritative opinions of law from officials and agencies charged with enforcement of voting laws. This entitled them to the Mistake of Law defense, and it thus affixed based on their testimony. The judgment should be REVERSED. ................................................................................................ 47
5. Trial counsel never attempted to introduce several items of
evidence that would have further proven Appellants’ case, or to file a sufficient post-trial motion detailing the errors at trial. The case should be reversed for a new trial based on ineffective assistance of counsel. ..................................................................................... 49
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A. Trial counsel never, but should have, offered the
“Gaultney” letter to prove the state of mind of Appellants. .......................................................................................... 50
B. Trial counsel never offered, but should have, the scores of
voter registrations that were at businesses, county and state offices, and even the very courthouse of the trial, to prove arbitrary and selective enforcement. ........................................ 53
CONCLUSION ..................................................................................................... 56 CERTIFICATE OF COMPLIANCE ................................................................... 58 CERTIFICATE OF SERVICE ............................................................................. 58
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INDEX OF AUTHORITIES Cases
Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008) ...................................................................... 18, 34 Anders v. California 386 U.S. 738 (1967) ...................................................................................... 49 Cramp v. Board of Public Instruction 368 U.S. 278 (1961) ...................................................................................... 27 Cuyler v. Sullivan 446 U.S. 335 (1980) ...................................................................................... 49 Ex parte Weinstein 421 S.W.3d 656 (Tex. Crim. App. 2014) ..................................................... 42 Gonzales v. State 723 S.W.2d 746 (Tex. Crim. App. 1987) ................................... 24, 30, 51, 53 Grayned v. City of Rockford 408 U.S. 104 (U.S. 1972) ....................................................................... passim Harvey v. State 201 S.W.2d 42 (Tex. Crim. App. 1947) ....................................................... 54 Hernandez v. State 726 S.W.2d 53 (Tex. Crim. App. 1986) ....................................................... 49 Hernandez v. State 988 S.W.2d 770 (Tex. Crim. App. 1999) ..................................................... 49 Jackson v. Virginia 443 U.S. 307 (1979) ...................................................................................... 44 Long v. State 931 S.W.2d 285 (Tex. Crim. App. 1996) ..................................................... 29 Louis v. State
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159 S.W.3d 236 (Tex. App.—Beaumont 2005, pet. ref'd) ..................... 18, 46 McBeth v. Streib 96 S.W.2d 992 (Tex. Civ. App.—San Antonio 1936, no
writ) ............................................................................................................... 26 Mills v. Bartlett 377 S.W.2d 636 (Tex. 1964) ......................................................................... 22 Office of Pub. Util. Counsel v. Public Util. Comm’n. 878 S.W.2d 598 (Tex. 1994) ......................................................................... 24 Ostrosky v. State of Alaska 913 F.2d 590 (9th Cir. 1990) ........................................................................ 47 Papachristou v. City of Jacksonville 405 U.S. 156 (1972) .......................................................................... 23, 24, 25 Pittman v. State 144 S.W.2d 569 (Tex. Crim. App. 1940) ..................................................... 19 Skelton v. State 795 S.W.2d 162 (Tex. Crim. App. 1989) ..................................................... 19 State v. Gonzalez 855 S.W.2d 692 (Tex. Crim. App. 1993) ..................................................... 54 State v. Westergren 707 S.W.2d 260 (Tex. App.—Corpus Christi 1986) .................................... 19 Trout v. State 702 S.W.2d 618 (Tex. Crim. App. 1985) ..................................................... 55 United States v. Cardiff 344 U.S. 174 (1952) ...................................................................................... 21 United States v. Laub 385 U.S. 475 (1967) ...................................................................................... 20 United States v. Morrison
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449 U.S. 361 (1981) ...................................................................................... 48
Rules TEX. R. APP. P. 21.2 ............................................................................................... 55
Formal Legal Opinions Texas Attorney General Opinion GA-0141 ............................................... 22, 24, 47 Texas Attorney General Opinion JC-0520 ............................................................ 27 Texas Attorney General Opinion JM-611 ............................................................. 26 Texas Secretary of State Opinion GSC-1 .............................................................. 47
Treatises W. LaFave & A. Scott, Substantive Criminal Law § 5.1 (1986) ............................. 47
Dictionaries WEBSTER’S NEW COLLEGIATE DICTIONARY (1981) .............................................. 25
Articles Elizabeth Hickey, Bush’s lot: no room for real estate WASH. TIMES, Nov. 19, 1992 ....................................................................... 33
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STATEMENT OF THE CASE
Nature of the Case: This is a criminal trial alleging illegal voting based on the alleged knowledge of Appellants that they did not reside in the district on the day of voting. CR.6 (indictments).
Course of Proceedings: Appellants were indicted by a grand jury. Id. Following denial of a motion to quash the indictment on constitutional grounds, 2RR.10 ln 13, and denial of a motion for directed verdict, 5RR.176-177, the jury denied the Appellants a Mistake of Law defense and returned a verdict of guilt for illegal voting, a third degree felony. 6RR.150.
Trial Court’s Disposition: The district court signed a final appealable order. CR.92. Appellant filed a notice of appeal, CR.104, and this case is now properly before this Court.
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ISSUES PRESENTED
1. Constitutional due process protections demand clarity within criminal statutes. The Texas Election Code employs indefinite definitions and circular reasoning to define “residence.” Should the trial court be reversed and the indictment be quashed?
2. The State’s case in chief failed to offer any evidence, much less legally sufficient evidence, to overcome the strong presumption given to voter intent regarding residency. Should the trial court be reversed and the motion for directed verdict granted?
3. The full record below, following the State’s case in chief, failed to
overcome the presumption of voter intent afforded Appellants. Should the jury verdict be reversed for legal insufficiency?
4. Both Appellants proved through uncontroverted testimony that
they exercised reasonable reliance upon (1) official statements of the law contained in written orders by an administrative agency charged by law with responsibility for interpreting the law in question, (2) written interpretations of the law contained in opinions of a court of record and (3) written interpretations of the law contained in opinions made by a public official charged by law with the responsibility for interpreting the law in question. Should the Appellants be entitled to the defense of Mistake of Law?
5. Appellants trial counsel failed to present evidence of (1) a direct
letter from the local voter registrar to Appellants they they were legally qualified to vote, (2) arbitrary and selective enforcement of registration at business, county, and state office addresses, and (3) failed to file a detailed motion for new trial. These filings would have had a profound effect on the outcome of the case. Should the judgment be reversed and a new trial granted due to ineffective assistance of counsel?
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STATEMENT OF FACTS
This case arises from indictment of two registered voters of Montgomery
County under the charge that they “knew [they] did not reside in the precinct in
which [they] voted.” 1CR.6.
Counsel for Appellants filed “Motion(s) to Quash and Exceptions to the
Substance of the Indictment(s).” CR.64 (Cook); 1. Supp. CR.3. (Doyle). The
motions were denied. 2RR.10 ln 13.
The State offered Witnesses Stilwell and McDuffee
The State offered two witnesses, James Stilwell and Richard McDuffee, to
prove beyond a reasonable doubt that Appellants knew they were not eligible to
vote in the Woodlands Road Utility District (“RUD” or “utility district”) election.
James Stilwell testifies for the State
James Stilwell, the prosecutions first of two witness, worked as the civil
attorney that prosecuted the civil election contest when Appellants voted in the
RUD election. 4RR.32. The majority of Stilwell’s testimony consisted of (1)
testimony as to the identify of the district, and (2) describing how it was a good
political idea and allegedly properly run. 4RR.24 - 5RR.6-112.
Stilwell testified for the State about that the RUD actually did. 4RR.24 ln 3
– 24 ln 19. He then discussed his opinion about the benefits of the RUD to local
residents. 4RR.30 ll 4-9. Next Stilwell closed the first day of trial offering his
opinion on the RUD’s financial workings and governance, as well as a civil
litigation challenge to RUD leadership by several individuals, including Appellants.
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4RR.30 ln 10 - 4RR43 ln 13.
Stilwell’s second day of testimony retreated to RUD benefits to citizens,
largely an esoteric tax and economics policy discussion. 5RR.6 ln 21 – 5RR.9 ln
21. He continued discussing RUD election history, 5RR.9 ln 22 – 5RR.10 ln 15,
and RUD economic audits and records, 5RR.10 ln 16 - 5 RR.20 ln 14.
Later in the second day Stilwell returned to the civil election contest,
addressing the stays of Appellants in the Residence Inn and their voter registration
cards with those addresses. 5RR.20 ln 15 – 5RR.34 ln 16. Stilwell, based on his
own investigation, gives further background information on the civil election
contest, testifying as to the deed records of Appellants, 5RR.37 (Doyle deed);
5RR.38 (Cook deed), and the deed records of other voters in the RUD election,
including their location on a map.. 5RR.39 – 47.
Stilwell continued his testimony, showing photographs of the residences of
the voters, 5RR.48 – 58, and offering homestead exemption applications SX-18.
Notably, Appellant Sybil Doyle did not sign the homestead exemption offered,
and the application merely states the owner of the home versus the actual person
who receives the tax exemption. Thus, it is no evidence as to her homestead
claim in 2010. SX-18. Appellant Robera Cook’s exemption was for tax year
2006, and irrelevant to her 2010 declaration. SX-18.
Lastly, Stilwell testified on one more issue. He reiterated his opinion that the
RUD was a good economic policy decision, 5RR.64 ln 20 – 5RR.65 ln 1.
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On cross-examination Stilwell described the civil election contest for the
RUD, and his familiarity with the background of that contest and the people
involved. 5RR.65 - 5RR.84. He next answered questions that the 30 day voter
registration requirement was an administrative application requirement and not a
residency requirement. 5RR.90 ll 20-21. Stilwell continued to testify about the
functioning of the RUD and its tax usage for the next ten record pages. 5RR.90 –
95.
On redirect, Stilwell continued with testimony about two persons who
maintain a house in the district, 5RR.99 – 103, about general voter requirements
and past RUD voting history, 5RR.103 – 5RR.106 ln 5; 5RR.107 ln 14 – 108 ln
18, intermixed with more economic policy discussion about the RUD as an
economic benefit to the area. 5RR.106 ln 6 – 5RR.107 ln 14; 5RR108 ln 19 –
5RR.111 ln 18.
This concluded Stilwell’s testimony.
McDuffee testifies for the State
Richard McDuffee was one of the ten Residence Inn voters, and was the
only other witness to testify for the State’s case in chief. McDuffee testified that he
was part of a “scheme” to vote in the RUD, and laid out the series of decisions and
steps by which several voters would determine to change their voting residence, on
purpose, to the Residence Inn. 5RR.114 ln 3 – 5RR.117 ln 23. 5RR.118 ln 6 –
5RR.199 ln 23. 5RR.122 ln 12 – 5RR.124 ln 3. McDuffee testified that he was not
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eligible, and that he knew that. 5RR.117 ln 24 – 5RR.118 ln 5. He related that he
did not research case law on voting eligibility. 5RR.120 ll 23-24. McDuffee then
offered his opinion that when he voted he thought there was a low probability of
being prosecuted. 5RR.122 ln 4.
McDuffee next discussed the election contest and the actions of the parties in
the Residence Inn. Appellants were not identified in any of the offered photographs
Next, McDuffee discussed the progression of the criminal investigation and
charges against some of the voters. 5RR.137 ln 12 – 5RR.139 ln 19. On cross-examination, McDuffee was asked directly on several occasions
whether he knew he was voting illegally.
5RR143:
• Q. (Walker) Did you know that you were casting an illegal vote at that time? • A. (McDuffee) As I knew the voting rules at that time and from a letter I received the district attorney warning of it, yeah, I was a little apprehension when I went and signed that.
• Q. Did you know that you were making an illegal vote? Is it your opinion that you made an illegal vote today?
• A. Today, yes. It was an illegal vote.
• Q. Let's talk about on the day of the election. When you walked in that voting booth, did you know that you were costing an illegal vote?
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• A. I had a doubt, but I did not have a total knowledge of the law saing yes or no. So I can't draw a definitive line.
• Q. Would it be fair for me to say that your -- you had some apprehension, but you did not know that you were casting an illegal vote?
• A. I had apprehension on voting. I cannot answer that positively on yes or no.
Then again, on Page 147.
5RR.147:
• Q. So your statement, your testimony here today is that I knew I was committing a crime, but I thought I could get away with that. Is that a good summation?
• A. It would fly under the radar, ten votes.
Then again, on Page 148.
5RR.148
• Do you recall giving a different answer when asked if you knew whether or not your vote on that day was illegal?
• A. There's been several trials and the way I answer the question, is it 100 percent the way I say each trial? No. Do I -- I change the way I word something. Is it illegal? I thought on the day of the vote, figured it was maybe a 50/50 percent chance, toss the coin, more than likely it was going to be maybe a nickle toss. Not going to be worth time and effort. But it's blown up into this. So can I say I knew black and white on that day, at that moment I went in that little building and signed on a little piece of paper because they did not have a machine or anything. It was the first time they had ever held an election. From the time this RUD board had been in the existence, they had never had -- there was no residence in the district,
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so there was never any elections Then again, on Page 150.
5RR.150
• Okay. Do you recall testifying in previous hearings regarding this case?
• A. Yes.
• Q. And we had an opportunity to review some of that testimony before you -- during the break, correct?
• A. Correct.
• Q. And you don't contest the copy of the transcript I have as far as accuracy?
• A. No.
• Q. Those were the questions asked of you and those were the answers you used?
• A. Correct.
• Q. Did you ever give a different answer to those questions or similar type questions when asked about your state of mind when you cast that ballot?
• A. The best I can remember, I never said that I thought it was totally legal.
• Q. Let me ask the converse of that. Did you ever think it was totally illegal?
• A. Only if I was the Defendant. It would be totally illegal. Does that make sense? I mean -- I'm just saying.
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McDuffee stated that the law was a “very big gray area” in Texas. 5RR.151
ln 17. McDuffee changed his mind after the criminal investigation:
5RR.157
• Q. (By Mr. Walker) Okay. Prior to casting the vote, did you believe it was legal to go forward?
• A. 100 percent legal to go forward?
• Q. I think that's kind of like being kind of pregnant. It's a yes-or-no question. Something is legal or something is illegal. So the question, once again, is the same as the question was before. Did you believe it was legal to go forward prior to the election?
• A. Again, I can't give you a cut and dry. My scenario today is unfortunately
back then at that time, I had another mind set and my answer was yes or no. But it's a gray area.
The state then rested its case in chief. The Defense then moved for a directed verdict. Appellants offered witnesses Heath, Jim Doyle, and Appellants Adrian Heath testifies for Appellants Adrian Heath offered testimony about his interactions with Appellants, both
having known them and his background in distributing both formal attorney
general opinions and secretary of state opinions on voter residency law
interpretations to Appellants. 6RR.23-25. He then identified he handed Sybil
Doyle a copy of both documents, GA-0141 and GSC-1. 6RR.27; DX-2, 3
(admitted). Heath testified next that the attorney general has authority to interpret
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election law. 6RR.28 ll 18-20.
Heath then testified about the day before the election. He stated that both
Appellants were present in the Residence Inn the night before the election, and
both were also present the morning before voting. 6RR.35-37.
Jim Doyle testifies for Appellants
Appellant’s second witness, Jim Doyle, testified in agreement with Heath
about the provision of GA-0141 and GSC-1 to both Appellants (Doyle at 6RR.59,
and Cook at 6RR.75 ln 14 (“we reviewed” those opinions). Jim Doyle also
confirmed that both Appellants were at the Residence Inn the night before the
election and the morning after. 6RR.62. At the Inn, both Appellants reviewed and
discussed GA-0141 and GSC-1 regarding official statements of elected officials on
voter residency. 6RR.63 ll. 5-7. Doyle also had discussions with Appellants,
particularly Cook, in March 2010 about those opinions and residency. 6RR.77 ln
12.
Roberta Cook testifies on her on behalf.
Cook testified that she was at the hotel the night before the election.
6RR.85-86. She testified that she reviewed DX-2 and DX-3 the night before the
election. Cook also expressly testified that based on the information she had, she
did not feel she was doing anything wrong. 6RR.88 ll. 22-23; 89 ll. 14-20, 90 ll. 1-
6; 91 ln. 13 – 92 ln. 21. Cook stood her ground on cross-examination when
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challenged. 6RR.92 ln. 25 – 93 ln. 2. On further redirect, Cook identified that her
residence for voting purposes was the Residence Inn. 6RR.94 ln. 24 – 95 ln. 14.
Sybil Doyle testifies on her own behalf.
Doyle testified that was indeed at the initial meeting where Heath gave her
copies of GA-0141 and GSC-1, the opinions of the attorney general and secretary
of state on “residence.” 6RR.96 ln. 1 – 97 ln. 14; DX-2, DX-3. Doyle testified she
reviewed those documents on her own. 6RR.100 ll. 8-11. She went to the
Residence Inn both the night before the election and the morning of the election.
6RR.100 ll. 13-20.
Doyle unequivocally stated she believed her vote was legal when cast.
6RR.101 ll. 12-19. There “wasn’t a doubt in [her] mind.” 6RR.101 ln. 15.
SUMMARY OF THE ARGUMENT
-INTRODUCTORY STATEMENT-
This case exemplifies a policy debate, but is clothed in the proceedings of a
criminal trial.1 The Election Code definitions and written legal opinions
throughout the record reflect that policy debate—as in the State’s mantra of “vote
where you live,” but, as the legal arguments and facts demonstrate, the legislature’s
subjective vagaries, evidenced across the state agencies’ and courts’ interpretations, 1 See Grayned v. City of Rockford, 408 U.S. 104, 108-109 (U.S. 1972). (“A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”
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fail to offer a clear standard of behavior for Appellants, making this case an
exemplar of constitutional infirmity prior to trial, and arbitrary standards during
the trial process.
The Texas Election Code employs both an indefinite and a circular standard for Appellants to determine “residence.” It is too vague. The indictment should have been quashed. Plain and simple. The indictments in these appeals plainly charge that Appellants “knew [they]
did not reside in the precinct in which [they] voted.” The definition of “residence,”
though, is not so clear.
Texas Election Code § 64.012 requires that a voter “know” she is ineligible
to vote based on Texas Election Code. This stems from the requirement in Section
11.001 that to be eligible to vote, a person be a resident of the territory covered by
the election. This notion of “residence” employs a subjective ad hoc standard,
defying definitions of “purpose” and “temporary.” In addition, multiple legal
authorities cast a broad, idiosyncratic view of “residence.” The U.S. Supreme
Court abhors the very requirement of a subjective, factually intensive
determination of “residence,” as it leads directly to arbitrary enforcement The
indictment should have been QUASHED and the motion to quash GRANTED.
The trial court erred as a matter of law in denying the motion for directed verdict because at no point did the prosecution, in the bounds of it case in chief, provide legally sufficient evidence
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upon which a rational jury could find, beyond a reasonable doubt, that either Doyle or Cook “knew” they were not eligible to vote.
The legal sufficiency review of directed verdicts is clear: the rule is not “no
evidence,” but “legally sufficient” evidence. The cases do not occur in a vacuum,
and in its other Appellee’s briefs the State fixates on what could be characterized as
overcoming “no evidence.” The issue, though, must as a matter of law include
direct or circumstantial evidence on what Appellants knew at the time.
The State spends a lot of time defending the utility district’s honor—its
purpose, policy, background, politics, and integrity—all to show that the district’s
existence is a good idea, to lead to the conclusion that Appellants must have known
they were not eligible to vote. The State then, having said its political peace
through James Stilwell, objects to any characterization of the utility district when
Appellants’ witness took the stand. This proves it is a subjective political debate
instead of a clear-cut criminal matter
Unfortunately, criminal law requires clear bounds of behavior. The State’s
evidence must answer the questions of “temporary” and “purpose,” the terms
within the definition of “residence” so that a rational jury could conclude beyond
a reasonable doubt on legally sufficient evidence that Appellants were guilty.
This did not occur; thus, the trial court must be REVERSED and the directed
verdict GRANTED.
Even assuming the State cleared the legal sufficiency for a directed verdict in its case in chief, the full record below very
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clearly proved as a matter of law that no rational jury could have found the essential elements of the offense—that Appellants “knew” they were ineligible—beyond a reasonable doubt. Given that the Court of Criminal Appeals considers a legal sufficiency
review as “rigorous,” and that a verdict may not survive upon speculation or mere
suspicion, Appellants plainly proved their innocence.
The State engages in cognitive dissonance regarding Appellants state of
mind. It wasted much time on its case in chief asking its star witness, Robert
McDuffee (a voter alongside Appellants), if he knew his vote was illegal—to
ascertain his frame of mind—but, hypocritically, considers those questions wholly
irrelevant and objects when such questions are asked of another voter, Adrian
Heath, for the exact same reason: to circumstantially prove Appellants state of
mind.
Both Appellants testified that they read and relied upon authoritative
opinions of the law, from the Attorney General, Secretary of State, and from the
Texas Supreme Court regarding residence. The indictment language, that she
voted where she did not reside, is the controlling legal criterion. This can only
happen on the day of the election, and prior to that day both Appellants fully
believed they were eligible to vote.
As a technical, but critically important matter, the charge is not anything
relating to their registration cards, but to their state of mind when they voted.
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There is legally isufficient evidence to find they knew they were ineligible, and the
conviction should be REVERSED.
Both Appellants presented their uncontroverted testimony that they believed they were legally voting, did not believe it was illegal, and had reviewed authoritative opinions of law from officials and agencies charged with enforcement of voting laws. This entitled them to the Mistake of Law defense, and it thus affixed based on their testimony. The judgment should be REVERSED.
Even assuming the statute is constitutionally firm, assuming the motion for
directed verdict was properly denied, assuming the evidence was legally sufficient
to prove the essential elements, no party can deny the uncontroverted testimony
from Appellants own mouths, testimony the State could not contradict, that they
believed at the time, based on the legal documents they reviewed and upon which
they relied, the Attorney General’s statements, and the Secretary of State’s opinion,
they were eligible to vote. The State’s mantra—”vote where you live”—reflects a
superficial view of the law that does not comport with the actual legal
interpretations upon which Appellants relied.
Ultimately, the standard needs to be clarified in a legislative session. That,
though, is not the issue here. Appellants made a mistake of law based upon their
reasonable reliance on legal authorities; thus, the verdict should be REVERSED.
Trial counsel never attempted to introduce several items of evidence that would have further proven his case, or to file a sufficient post-trial motion detailing the errors at trial. The case should be reversed for a new trial based on ineffective assistance
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of counsel. Trial counsel did not introduce the “Gaultney” letter, from the Montgomery
County Voter Registrar, which officially indicated to Appellants that they were
legally registered to vote at the Residence Inn address. This goes firmly to their
mistake of law defense. In addition, counsel had dozens of voter registrations at
business, county, and state addresses, all of which were not “residences,” to
demonstrate arbitrary and selective enforcement, which would tend to prove
vagueness. Lastly, counsel’s motion for new trial was insufficient to properly
identify the challenges to Appellants’ convictions. The case should, in the
alternative from acquittal, be reversed for a new trial.
STANDARDS OF REVIEW
Standard for Legal Insufficiency
The reasonable doubt standard requires a high threshold of proof. A case
will be reversed for lack of legal sufficiency when it is irrational or “unsupported by
proof beyond a reasonable doubt.” Allen v. State, 249 S.W.3d 680, 703 (Tex.
App.—Austin 2008) (emphasis added). If circumstantial evidence provides no more
than a suspicion, the jury is not permitted to reach a speculative conclusion. Louis v.
review functions to prevent convictions not based on proof “beyond a reasonable
20
doubt.” Skelton v. State, 795 S.W.2d 162, 167 (Tex. Crim. App. 1989). “When the
verdict is against the uncontroverted testimony, it is [the court’s] solemn duty to set
it aside.” Pittman v. State, 144 S.W.2d 569, 569 (Tex. Crim. App. 1940)
Standard for Directed Verdicts
The trial court’s denial of a directed verdict is reviewed on an abuse of
discretion. State v. Westergren, 707 S.W.2d 260, 262 (Tex. App.—Corpus Christi
1986).
ARGUMENT
1. The Texas Election Code employs both an indefinite and a
circular standard for Appellants to determine “residence.” It is too vague and reflects an ad hoc policy debate that is constitutionally infirm as a criminal standard. The indictment should have been quashed. Plain and simple.
“A vague law impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application.” Grayned v. City of
Rockford, 408 U.S. 104, 108-109 (U.S. 1972) (emphasis added). The Grayned Court
stated very plainly that such laws are void:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to
21
know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”
Grayned, 408 U.S. at 108-109. Thus, “[c]rimes are not to be created by inference.”
United States v. Laub, 385 U.S. 475, 487, 17 L. Ed. 2d 526 (1967). “[C]itizens may
not be punished for actions undertaken in good faith reliance upon authoritative
assurance that punishment will not attach. . . . [C]riminal sanctions are not
supportable if they are to be imposed under vague and undefined commands or if
they are inexplicably contradictory; and certainly not if the Governent’s conduct
constitutes active misleading.” Id. (internal citations and quotations omitted).
With this backdrop, Texas Election Code 1.015 simply fails to pass
constitutional muster in violation of the Due Process Clauses of the Fifth and
Fourteenth Amendments to the United States Constitution. It defines residence,
upon which the State relies, in relevant part as:
Sec. 1.015. RESIDENCE: (a) In this code, “residence” means domicile, that is, one's home and fixed place of habitation to which one intends to return after any temporary absence.
(b) Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.
(c) A person does not lose the person's residence by leaving the person's home to go to another place for temporary purposes only.
(d) A person does not acquire a residence in a place to which the person has come for temporary purposes only and without the
22
intention of making that place the person's home. TEX. ELEC. CODE § 1.015.
The problem here, according to the State’s position at trial, its opening and
closing statements, the nature of its witnesses testimony, its questioning of defense
witnesses, and its position in the other trials surrounding this utility district
controversy, is that a person is supposed to “vote where they live.” 4RR.18 ln 6, ln
Appx., Tab B at 17 (State’s opening statement in State v. Jenkins trial); Appx., Tab C
at 23 (State’s opening statement at State v. Heath trial);
That position is a policy discussion best saved for political science or history
classes, or even better, the legislature. In fact, the Texas Legislature this very
session entertained a bill that would permit voting where one does not live if that
move happened within thirty days of the election. See Tex. H.B. 1452, 84th Leg.,
R.S. (2015).
In a court of law that depends on critically sound definitions of criminal
activity, the definition of “residence” is fluid and vague, unacceptable under
constitutional scrutiny. “The vice of vagueness in criminal statutes is the treachery
they conceal either in determining what persons are included or what acts are
prohibited.” United States v. Cardiff, 344 U.S. 174, 176 (1952). “Words which are
23
vague and fluid . . . may be as much of a trap for the innocent as the ancient laws
of Caligula.” Id.
Take, for example, the following sweeping and contradictory examples
within Texas Attorney General Opinion GA-0141.
A. Texas Attorney General Opinion GA-0141 demonstrates the definition of “residence” in the Election Code is unconstitutionally vague.
In no less than fifteen (15) pages, former Texas Attorney General Greg
Abbott attempted to explain the definition of residency for purposes of voting. See
DX-3. State’s counsel would have it be a simple “vote where you live.” 4RR.18 ln
6, ln 7 (State’s opening statement). But even State counsel’s own former boss
disagrees. After providing Texas Election Code’s § 1.015 definition, GA-0141
dives right into Mills v. Bartlett as an authoritative source on how to “interpret” the
concept of “residence” in the context of voter eligibility. GA-0141 evaluates
“residence” within the specific context of concern about criminal
culpability and the threat of prosecution for illegal voting. See DX-3 at 1. And
the Mills court certainly does not clear up the definition.
The term “residence” is an elastic one and is extremely difficult to define. The meaning that must be given to it depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Volition, intention and action are all elements to be considered in determining where a person resides and such elements are equally pertinent in denoting the permanent residence or domicile.
Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964).
24
Reference in GA-0141 to criminal prosecution, and reliance upon its
explanation of the statutory meaning within the criminal context, results in a
circular analysis. The Code refers the reader to the common law and legal opinions
of the state, but then says it overrules those definitions; however, the common law
and legal opinions purport to explain the actual Code definition. Is it the Code,
which is supposed to trump the common law and legal opinions, or the common
law and legal opinions which are supposed to interpret the Code, which is
supposed to trump the common law and legal opinions . . . (ad infinitum). Where
does the circular reasoning stop?
The analysis in Mills v. Bartlett, cited by the Texas Attorney General and the
seminal opinion in the State of Texas (this headnote is cited sixteen (16) times for
this proposition and forty-two (42) times for its discussion of “residence,” generally),
demands a fact-intensive evaluation of competing interests, heavily relying upon
the intent of the voter to prove residence but with little to no external factual
standards. This ad hoc analysis is exactly the framework rejected by the Supreme
Court in Grayned and its progency. See Grayned, 408 U.S. at 108-09 (criminal laws
must not be based on ad hoc, subjective standards by policemen, judges, and juries).
For example, in Papachristou v. City of Jacksonville, 405 U.S. 156, 163 (1972),
the Supreme Court reviewed the history of laws against “vagrancy,” determining
that the many conflicting factual determinations that may underlie identifying
vagrancy led to an unconstitutional vagueness based on the failure of Florida’s
25
statutes to properly define “vagrancy.” Id. at 161-171. The law’s unconstitutional
nature resulted in it casting too broad a net (capturing offenders with various
reasons for lack of employment—from those with independent wealth who had no
need of work to those whose lack of employment fostered criminal activity or was
the result of criminal activity).
Additionally, the law permitted unfettered discretion in the state for arbitrary
enforcement. Id. at 168. That crossways purpose is most clearly seen in GA-0141.
The Texas Attorney General presents a situation in which two Texas residents
reside in a certain location, a college dormitory. DX-3 at 5. Both citizens share an
identically common living situation. Id. Yet one party is permitted to register to
vote, and is eligible to vote, in the district of the college dormitory. Id. The other
citizen is wholly entitled to register to vote, and is eligible to vote, in his parents
home district. Id. Neither person residency technically “votes where they live”—the
State’s mantra. Why? Because that mantra does not reflect the law. It never
has, and never will. Why? Because residency is a factually intensive, oft
inconsistent, and subjective analysis resting heavily on voter intent. It is not a
decision to be left to arbitrary criminal prosecution absent a clear definition of
“residence,” which does not exist in Texas Election Code § 1.015.
Consider Appendix Tabs F-J, judicial notice of which is now requested,2 that
2 See TEX. R. EVID. 201(b),(c),(f); See, e.g., Office of Pub. Util. Counsel v. Public Util. Comm’n., 878 S.W.2d 598, 600 (Tex. 1994) (appellate court has power to take judicial notice for first time on appeal); Gonzales v. State, 723 S.W.2d 746, 751 (Tex. Crim. App. 1987) (Judicial notice can be
26
shows the incredibly arbitrary nature of “residence” in Montgomery County public
voter registration records, and thus the selective enforcement applied here. See
Appx., Tabs F-J; Section D.1, infra (describing those records).
B. The common language of the statute leaves “temporary” and “purpose” open to broad, vague interpretation, and thus arbitrary enforcement
The common meaning of words controls in this case. See TEX. GOV’T CODE
§ 311.011. What then, in Section 1.015 of the Election Code, defines “purpose?”
What if Appellants’ permanent (as opposed to temporary) purpose was to
permanently vote within the utility district? That qualifies as a legitimate purpose
because purposes are individualistic, and thus they are as varied as the individual.
See Papachristou v. City of Jacksonville, 405 U.S. at 164 n.7 (describing the various
purposes for traveling as a potential vagrant or residing in a house, as gleaned from
classical American literature).
Further, what defines “temporary” as it modifies “purpose?” What if th
purpose is a permanent purpose by a temporary means? Webster’s New Collegiate
Dictionary defines “purpose” as an “end to be attained.” WEBSTER’S NEW
COLLEGIATE DICTIONARY at 930 (1981). The purpose of the statute does not
qualify “purpose” as the “State’s” purpose (which the State would clearly want). Is
a political purpose de facto invalid? No. But the State’s desire for a convictionmust
requested of a fact when “its existence is so easily determinable with certainty from sources considered reliable, it would not be good sense to require formal proof.”
27
assume definitions in this nebulous statute that are not the legal standard. A
political purpose is just as legitimate, and the Constitution, rather than the State,
determines the standard.
A political purpose, or desire, to establish voter residency in the utility
district cannot be discarded out of hand. McDuffee testified—albeit speculation on
his part, that Appellants wanted to participate in a political plan to shut down the
district. 5RR.149 ll 1-3. That is a legitimate purpose, whether temporary or
permanent, regardless of one’s policy preferences, and cannot be discounted,
particularly when voting at a college dormitory can be a voting location whether or
not the student intends to stay on after college. See DX-2 at 7 (duration of
“residency” is something that may not be predicted years in advance). Even when
spending one night—or no nights—at the location (especially when a party may
rarely, if ever, step foot in the state and still be counted as a resident simply based
on intent) one may not discount the purpose of shutting down the district as
invalid. See DX-3 at 5 (quoting McBeth v. Streib, 96 S.W.2d 992, 995 (Tex. Civ.
App.—San Antonio 1936, no writ).
GA-0141 references another Attorney General opinion, JM-611, authored
by former Attorney General Jim Mattox. In that opinion, the State authority
expressly states “[t]he term “residence” defies easy definition.” If multiple, highly
qualified legal minds charged with upholding the voter eligibility laws of the state
conclusively state that the definition of residence “defines easy definition,” how can
28
a court in Texas possibly permit a party to be charged with its offense. Given the
multiple commercial residences identified in the Appendix, Tabs F-J, and another
the Texas Attorney General Opinion, JC-0520, that permits hotels to be
permanent homes, how can Appellants’ conduct be criminal? See Texas Attorney
General Opinion JC-0520 (making a legal opinion that hotels can be residencies in
Texas and referencing voter registration as an analogue).
The criminal statutes of the State of Texas must be clear. One must be able
to identify the essential elements and, through ordinary intelligence, decide upon
behavior that is not criminal in nature. See Appx., Tab K (Gaultney letter); Section
“5.D.1.”, infra, on significance of Gaultney letter.
The United States Supreme Court stated the rule for this case succinctly: “In
the light of our decisions, it appears upon a mere inspection that these general
words and phrases are so vague and indefinite that any penalty prescribed for their
violation constitutes a denial of due process of law. It is not the penalty itself that is
invalid but the exaction of obedience to a rule or standard that is so vague and
indefinite as to be really no rule or standard at all.” Cramp v. Board of Public
Instruction, 368 U.S. 278, 287 (1961). Appellants had an indefinite standard to
follow and could not do that here because the statute is too vague.
Because the indictment does otherwise, the trial court abused its discretion in
denying the motion to quash the indictment. The motion should have been
GRANTED. This Court should REVERSE the trial court and dismiss the case
29
with prejudice, as the statue is unconstitutionally vague. C. The definition of “residence” requires a person of ordinary
intelligence to identify where a conflict exists between the statutory definition exception and the common law, a task fraught with indeterminacy.
At a minimum, Section 1.015 of the Election Code requires a voter of
ordinary intelligence to evaluate the common-law rules of the Texas, use ordinary
intelligence to juxtapose those rules with the Election Code, and then use ordinary
intelligence to decide if there is a conflict, in which case the Election Code would
trump their ordinary decision. This is a hopeless legal quagmire for the ordinary
voter that took our current Governor fifteen (15) pages to explain when he served
as Attorney General.
Criminal law must be sufficiently clear in at least three respects: (1) a person
of ordinary intelligence must be given a reasonable opportunity to know what is
prohibited; (2) the law must establish determinate guidelines for law enforcement;
and (3) where First Amendment freedoms are implicated, the law must be
sufficiently definite to avoid chilling protected expression. Grayned, 408 U.S. at 108-
109. This standard is implicated on a few ways. First, this trial records shows
ordinary people having to go multiple places to guess at the meaning of the
statutory definition of residency.
Second, while this is not a First Amendment case, an analogue from speech
law makes very clear sense. The Court of Criminal Appeals stated in the speech
case of Long v. State that “Because First Amendment doctrines are often intricate
30
and/or amorphous, people should not be charged with notice of First Amendment
jurisprudence, and a First Amendment defense cannot by itself provide adequate
guidelines for law enforcement. Moreover, an attempt to charge people with notice
of First Amendment case law would undoubtedly serve to chill free expression.”
931 S.W.2d 285, 295 (Tex. Crim. App. 1996).
The instant case likewise expects Appellants to have a thorough familiarity
with election case law, Attorney General Opinions, Secretary of State Opinions,
and then decide if those authoritative statements on the law and its definitions
conflict with the Election Code. That is unconstitutional, as great legal minds can’t
even agree on the exact terms. Thus, this law cannot past legal muster as it is too
vague and deprives Appellants of their right to due process. The case should be
REVERSED and the motion to quash GRANTED.
D. The overwhelming public records subject to judicial notice
demonstrate a multitude of people legally voting from non-residence locations.
A glut of government and business locations in Montgomery County have
voters registered voters at those locations. Any prosecutions from this case demonstrate how the current scheme is vague and arbitrary.
The following table summarizes the records for which judicial notice is
requested,3 and demonstrates the complete arbitrary and selective enforcement of
3 See TEX. R. EVID. 201(b),(c),(f); See, e.g., Office of Pub. Util. Counsel v. Public Util. Comm’n., 878 S.W.2d 598, 600 (Tex. 1994) (appellate court has power to take judicial notice for first time on
31
this law. None of the following voters “vote where they live,”—the State’s
unconstitutional mantra. All of the following voter vote from, and “reside”
in a non-residential building in Montgomery Count.
Appx. F Government Buildings (some have homestead designations elsewhere) Montgomery County District Courthouse: - J. French (with different homestead designation) San Jacinto River Authority - A. Raley, B. Raley, R. Acreman Montgomery County Mental Health Facility - D. Rutkowski, K. Moore Woodlands Joint Power Agency - L. Yancura Montgomery County Administration Building - M. Vance, D. Lozano, Sr. Montgomery County Constables Office, Precinct 3 - R. Furches, II, Appx. G School Conroe ISD Administration Building: - C. Davis (with different homestead designation).
Appx. H Post Office Boxes (some have homestead designations elsewhere) Box It Corporation: - J. Alexander, K. Crispin, S. Wolfswinkel, A. Summers, C. Panter,
T. White (male), T. White (female), B. Smith, G. Heit, S. Murray, R. Murphy, A. Cini, P. Leabo, D. Letner, L. Letner, E. Glawson, A. Glawson, M. McClure, P. Thomas, K. Thomas
Eagle Postal Center: - L. Nemetz, C. Hill, C. Hall, L. Koner, J. Perrone, C. Deal, C.
appeal); Gonzales v. State, 723 S.W.2d 746, 751 (Tex. Crim. App. 1987) (Judicial notice can be requested of a fact when “its existence is so easily determinable with certainty from sources considered reliable, it would not be good sense to require formal proof.”
32
McKinney, R. Johnson, M. Adams (with different homestead designation), E. Henderson, A. Whitlock, M. Williams, H. Linder, A. Hernandez, P. Dillard, A. Huson, F. Huson, S. Booth
The UPS Store - V. Folsom, E. Bucklew, G. Bucklew, M. Bucklew, B. Voigt, L. Cox, C.
Goodie (with different homestead designation), A. Robinson, K. Couch, B. Pumphrey, D. Pollock, Jr., V. Barrett, J. Collins, R. Roch, J. Helton, R. Rodriguez, G. Gretz, L. King, R. Chipman, J. Williams, K. Villarreal, C. Roop, B. Mayberry, M. Brown, C. Brown, B. Scott, S. Stewart, K. Moriarty, B. Robinson, S. Carrell, T. Schaefer, M. Schultz, K. Rubio, S. Malmquist, D. Zuehlsdorff, A. Janata, M. Harris, K. Krzesinski,
Einstein’s Ship Store - L. Little Postal Annex Contract Post Office - B. Watson, B. Zimmer, S. Johnston, A. Cabrera, K. Eindorf Mailboxes ‘n’ More - W. Safee, III, A. Urner, V. Alba, Jr., B. Alba, K. Seitan - Appx. I Commercial Buildings 9595 Six Pines Drive (Commercial Shopping Center): M. Zeevaert 9333 Six Pines Drive (Residence Inn Hotel): J. Ponder 9110 Grogans Mill Road (Hughes Tool Company): D. Howard, B. Howard 2434 Sawdust Road (Limo Direct): B. Brandon (with different homestead designation 4006 Sprayberry Lane (La Quinta Inn): R. Bhakta, P. Bhakta, M. Bhakta 4001 Sprayberry Lane (Days Inn): R. Patel 27350 Blueberry Hill Drive (Commercial Shopping Center): C. Evans 27327 Robinson Road (Faith Family Fellowship Church): R. Rice 27326 Robinson Road (USA Dance studio): D. Rayburn 25301 Borough Park Drive (Office Suite building): K. Newman 18614 FM 1488 (Magnolia Inn): N. Yadav, V. Vansadia, M. Vansadia, L.
Vansadia 17707 FM 1488 (Executive Inn): D. Bhakta 17525 St. Lukes Way (Candlewood Suites): B. Sims, B. Honeycutt 777 Dam Site Road (RV Storage Facility): J. Austin, T. Austin, B. Foster 6531 FM 1488 Ste 313 (Double P. Bakery): P. Stutes 7 Switchbud Place C-190 (Chef Chan Restaurant): L. Chan 7 Switchbud Place #146 (CoTech Vending Service): R. Riggans
33
7 Switchbud Place (Woodlands Village Shopping Center): K. Hemphill 0 Airport Road (Airport Business Park): S. VanBuren 304 N. Main Street (E-Z Out Bail Bonds): D. Wyrwich 518 Alana Lane (Hal Air Conditioning Company): R. Watson, II, T. Symens (different mailing address) 1201 Lake Robbins Drive (Anadarko Petroleum Company): R. Fahel 523 E. Oak Hill Drive (Industrial Building Park): W. Stolte 411 Sawdust Road (RDA Pro-Mart): J. Lawson 35335 FM 249 (KC Kars): E. Isaacks 10001 Six Pines Drive (Chevron Phillips Chemical Company): T. Meese 33027 Tamina Road (Industrial Building Park): T. Neubaum 25024 Interstate 45 (Golden China): A. Chen Appx. J (All of the following persons have current homestead designations at a residential location but have registered to vote and legally “reside” for the purposes of voting at government or commercial locations) 1 Criminal Justice Drive (Montgomery County Sheriff’s Office): T. Pternitis, J.
Davidson 1520 Lake Front Circle (Montgomery County Justice of the Peace, Pct. 3): O. Ortega 9595 Six Pines Drive (Commercial Shopping Center): F. Sovea, L. Sovea 701 N. Loop 336 (Westwick Professional Building): P. Johnson 514 Alana Lane (Industrial Building Park): S. Ray 3501 N. Loop 336 (Advanced Calibration Enterprises): E. Clements 330 Rayford Rd (UPS Store): J. Wilson, III, A. Rogers, K. Robinson, J. Lewis,
K. Fortenberry, R. Carrell, Jr., C. Mielsch 2257 N. Loop 336 (Mailboxes “n” More): B. Turner 2211 Rayford Road (PostalAnnex): D. Wick, P. Baker 21764 E. Wallis Drive (I. C. Janitorial Supplies): E. Isom, B. Isom 21 Waterway Avenue (Clear Vascular, Inc.): M. Sutter 200 River Pointe Drive (Foshee and Association PLLC CPAs): R. Foshee, Jr. 18500 Trails End Road (Industrial Building Park): C. Cope 1733 Woodstead Court (Woodstead MRI): W. Lockhart 1712 N. Frazier (State Farm Insurance): M. Reeves 1712 N. Frazier (Freeman Computer Services): J. Freeman 12371 Cude Cemetery Road (Fisher RV and Boat Storage): J. Clements 12050 Melville Road (Einstein’s Ship Store): J. Jagow 1012 Rayford Road (Quality Fur Dressing Company): F. Sweisthal 603 Nursery Road (Daniel Office Products): R. Rodriguez 97 Criminal Justice Drive (A-1 Bail Bonds): L. French
34
These records show that the State’s mantra—“vote where you live”—is
illusory and unenforceable as a legal standard. These records also support the
ineffective assistance issue in Section 5, infra.
Even the President of the United States, former George H. W. Bush, never “resided” in Texas—according to the State’s definition of “vote where you live”—but he maintained a “residence” at Suite 127 of the Houstonian Hotel in Houston, Texas.
During the 1988-1992 years of his office, former president George H.W.
Bush did not live in Texas at all. That did not stop him, though, from “residing” at
a hotel in Texas. He registered to vote and maintained his “residence” at Suite
127, 111 N Post Oak Ln, Houston, TX 77024, the address of the Houstonian
Hotel. See Elizabeth Hickey, Bush’s lot: no room for real estate, WASH. TIMES, Nov. 19,
1992, at E.1.
How can a sitting president be able to “reside” at a hotel and not violate the
law, when he never intended to live there, and yet Appellants are without the
chance to do the same? The law, fundamentally, should be blind to social status or
political power. This case proves the opposite. Appellants were on the losing end of
a local political/policy squabble about whether the RUD is a good economic idea,
and are being threatened with their liberty. See Statement of Facts: James Stilwell’s
testimony (praising the RUD for being a great economic policy idea (Section
2.A.1., infra) vis-à-vis Appellants’ desire to investigate and possibly end the RUD by
achieving a majority on the board). This should not be.
35
2. The trial court erred as a matter of law in denying the motion for
directed verdict because at no point did the prosecution, inside the bounds of its case in chief, provide legally sufficient evidence upon which a rational jury could find, beyond a reasonable doubt, that either Doyle or Cook “knew” they were not eligible to vote.
The reasonable doubt standard requires a high threshold of proof. A case
will be reversed for lack of legal sufficiency when it is irrational or “unsupported by
proof beyond a reasonable doubt.” Allen v. State, 249 S.W.3d 680, 703 (Tex.
App.—Austin 2008) (emphasis added). Examining the record, the State had to
prove the requisite element of knowledge, that Appellants both “knew” they were
not eligible to vote, beyond mere inference, but beyond a reasonable doubt.
The witnesses for the State, Stilwell and McDuffee, could only speculate as
to Appellants’ knowledge and state of mind.
A. Stilwell’s testimony did not prove “knew” beyond a reasonable doubt, but focused on explaining the nature of the district as a policy decision and as a justified political subdivision.
James Stilwell, the prosecutions first of two witness, worked as the civil
attorney that prosecuted the civil election contest when Appellants voted in the
RUD election. 4RR.32. In fact, supportive to Section I.A., that this is a local
economic policy dispute, supra, the majority of Stilwell’s testimony consisted of (1)
testimony as to the identify of the district, and (2) describing how it was a good
political idea and allegedly properly run. 4RR.24 - 5RR.6-112.
36
1. The majority of Stillwell’s testimony involved irrelevant rambling about the inner workings of the RUD and its use as a taxing entity, irrelevant to any element.
Stilwell filled 127 pages of testimony with largely irrelevant, non-probative
material. Stilwell testified for the State about that the RUD actually did and how it
worked, including its audit history. 4RR.24 ln 3 – 24 ln 19; 4RR.30 ln 10 - 4RR43
ln 13; 5RR.10 ln 16 - 5 RR.20 ln 14. He waxed long, and just as irrelevant, in his
opinion about the benefits of the RUD to local residents. 4RR.30 ll 4-9; 5RR.6 ln
about Appellants’ friends’ deed records, including their location on a map. 5RR.39
– 47. This testimony had zero bearing on Appellant’s intent, but appears to have
been done to persuade the jury that the Appellants were trying to ruin what Stilwell
perceived to be an economic benefit. This is wholly irrelevant to the case.
2. The only relevant, but not at all probative, testimony of Stilwell involved property records and homestead exemptions that did not prove Appellants’ subjective intent.
The only items related to the issue, but not at all probative beyond a
reasonable doubt, involved RUD election history. 5RR.9 ln 22 – 5RR.10 ln 15;
McDuffee testified that he was not eligible, and that he knew that. 5RR.117 ln 24 –
5RR.118 ln 5. He related that he did not research case law on voting eligibility.
5RR.120 ll 23-24. McDuffee then offered his opinion that when he voted he
thought there was a low probability of being prosecuted. 5RR.122 ln 4.
McDuffee next discussed the election contest and the actions of the parties in
the Residence Inn. Next, McDuffee discussed the progression of the criminal
investigation and charges against some of the voters. 5RR.137 ln 12 – 5RR.139 ln
19.
39
1. McDuffee expressly could not state he knew he was not eligible on cross-examination.
On cross-examination, McDuffee did not offer testimony probative of
Appellants state of mind beyond a reasonable doubt. He could only opine as to his
mind, and even that examination proved he did not know what he was doing was
illegal. See Section I.A., supra.
McDuffee was asked directly on several occasions whether he knew he was
voting illegally. Despite his firm statement on direct examination, on cross-
examination he was reticent to offer a stable answer.
5RR143:
• Q. (Walker) Did you know that you were casting an illegal vote at that time? • A. (McDuffee) As I knew the voting rules at that time and from a letter I received the district attorney warning of it, yeah, I was a little apprehension [sic] when I went and signed that.
• Q. Did you know that you were making an illegal vote? Is it your opinion that you made an illegal vote today?
• A. Today, yes. It was an illegal vote.
• Q. Let's talk about on the day of the election. When you walked in that voting booth, did you know that you were costing [sic] an illegal vote?
• A. I had a doubt, but I did not have a total knowledge of the law saying yes or no. So I can't draw a definitive line.
• Q. Would it be fair for me to say that your -- you had some
40
apprehension, but you did not know that you were casting an illegal vote?
• A. I had apprehension on voting. I cannot answer that positively on yes or no.
Then, on Page 147, McDuffee changes his view.
5RR.147:
• Q. So your statement, your testimony here today is that I knew I was committing a crime, but I thought I could get away with that. Is that a good summation?
• A. It would fly under the radar, ten votes.
Even when challenged with his conflicting testimony, McDuffee waffled and
panicked on the stand.
First, when confronted prior to a break, McDuffee begins to complain about
the weighing out of the chances of being prosecuted and doesn’t answer the
question:
5RR.148
• Do you recall giving a different answer when asked if you knew whether or not your vote on that day was illegal?
• A. There's been several trials and the way I answer the question, is it 100 percent the way I say each trial? No. Do I -- I change the way I word something. Is it illegal? I thought on the day of the vote, figured it was maybe a 50/50 percent chance, toss the coin, more than likely it was going to be maybe a nickle toss. Not going to be worth time and effort. But it's blown up into this. So can I say I knew black and white on that day, at that moment I went in
41
that little building and signed on a little piece of paper because they did not have a machine or anything. It was the first time they had ever held an election. From the time this RUD board had been in the existence, they had never had -- there was no residence in the district, so there was never any elections
Then, after a break, and on more direct questions, McDuffee again waffled
when attempting to answer the question:
5RR.150
• Okay. Do you recall testifying in previous hearings regarding this case?
• A. Yes.
• Q. And we had an opportunity to review some of that testimony before you -- during the break, correct?
• A. Correct.
• Q. And you don't contest the copy of the transcript I have as far as accuracy?
• A. No.
• Q. Those were the questions asked of you and those were the answers you used?
• A. Correct.
• Q. Did you ever give a different answer to those questions or similar type questions when asked about your state of mind when you cast that ballot?
• A. The best I can remember, I never said that I thought it was totally legal.
42
• Q. Let me ask the converse of that. Did you ever think it was totally illegal?
• A. Only if I was the Defendant. It would be totally illegal. Does that make sense? I mean -- I'm just saying.
At no point did McDuffee say that he knew he was ineligible. He stated it
was a “very big gray area” in Texas. 5RR.151 ln 17. See Section I., supra
(challenging law as void for vagueness). When directly challenged, McDuffee
against tried to justify his post hoc opinion on eligibility versus what he believed at
the time of voting, suggesting that in 2010 he believed he was in the right, a yes/no
proposition, but he changed his mind after the criminal investigation:
5RR.157
• Q. (By Mr. Walker) Okay. Prior to casting the vote, did you believe it was legal to go forward?
• A. 100 percent legal to go forward?
• Q. I think that's kind of like being kind of pregnant. It's a yes-or-no question. Something is legal or something is illegal. So the question, once again, is the same as the question was before. Did you believe it was legal to go forward prior to the election?
• A. Again, I can't give you a cut and dry. My scenario today is unfortunately
back then at that time, I had another mind set and my answer was yes or no. But it's a gray area.
2. McDuffee’s testimony on two prior occasions was not nearly the same; he could not consistently testify.
The standard of review for perjured testimony is deferential unless the
43
reviewing court finds the conclusions of the fact finder not supported by the
record. Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014). Then the
reviewing court, if it finds perjured testimony, must throw out the conviction if the
testimony was material because it violates the rights to due process under the Fifth
and Fourteenth Amendments to the United States Constitution. Id. (“The State's
use of material false testimony violates a defendant's due-process rights under the
Fifth and Fourteenth Amendments to the United States Constitution.”) (emphasis
in original). The testimony not need be harmful, only material. Id.
McDuffee testified in Cause No. 12-03-02580-CR, State of Texas v. Adrian
Heath, that he had qualms when he registered but it was played down by another
attorney because in Texas “it’s a state of mind . . . .” See Appx., Tab D at 154 ln
25 – 155 ln 5.
McDuffee boldy, succinctly, and unequivocally stated that he did
not believe he was committing felony when he went in and voted in the
RUD election.
Q. (Defense counsel on cross-examination) Then did you believe you were
committing a felony when you went and cast that vote on May the 8th?
A. (McDuffee) No.
See Appx., Tab D at 187 ll 17-19 (emphasis added).
This is plainly perjured material testimony used to push an inference that
44
Appellants were involved in a scheme to vote in an election for which they (the
alleged conspirators) knew they were not eligible. It denied Appellants due process
by the State, for which the State is accountable.
In the trial of State of Texas v. Jim Jenkins, No. 12-03-02579, McDuffee’s
response was that he filled out his voter registration card with no concern, but felt
there was a “[d]anger” when he received a letter from the district attorney’s office,
but that the danger was “vague.” See Appx., Tab B at 179 ln 19 - 181 ln 18.
McDuffee also stated that the decision was made by each person in his own mind,
and that his meeting of the mind and presence established his residence. Id. at 216
ln 3; 217 ln 2. This is again markedly different from his testimony at trial in the
instant case.
Yet even in that trial, when pressed on cross-examination, McDuffee stated
that the honest truth was he did not know he was voting illegally; it was only
after the election that he had doubts:
Q. (by Defense attorney) [O]n the day that you voted, you did not know that
[you were voting illegally], did you?
A. (by McDuffee) No.
Q. And that’s the honest truth, isn’t it?
A. That’s the honest truth.” (emphasis added).
Id. at 218 ll 13-25.
45
If anyone should be prosecuted, it should be McDuffee for perjury in giving
two opposite statements under oath!
At no point in the case in chief of the State of Texas versus Appellants Sybil
Doyle and Roberta Cook did the State ever produce probative evidence that
would lead a rational trier of fact to believe beyond a reasonable doubt that
Appellants knew they had illegally voted. McDuffee’s plain equivocations were
insufficient. Stilwell’s long-winded policy discussions and details about the inner
workings of the RUD are not probative or relevant. See Section 2.A.1, supra. Even
the more relevant testimony about where Appellants maintained a house does not
speak to whether their purpose was temporary, or what their purpose was in
changing their residence. See Section 1.B., supra.
All of the State’s evidence is circumstantial, and did not pass the high
threshold required for legal sufficiency proof. The Jackson v. Virginia standard
enunciated by the United States Supreme Court demands a significant amount of
evidence, not a small amount. “[I]t could not seriously be argued that such a
"modicum" of evidence could by itself rationally support a conviction beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 320 (1979). Here, at best,
there is a modicum. This is not enough, and it is all the State could offer.
This trial did not pass the high threshold in the State’s case in chief for legal
sufficiency review, and thus this Court should REVERSE the verdict.
46
C. The 1991 voter registration law change removed “permanent” from “permanent residence address” on the voter registration application.
In 1991, the 72nd Texas Legislature spoke on the issue of whether one
must “vote were you live.” It unequivocally took the word “permanent” out of the
official voter registration application. House Bill 879 states: “The secretary of state
shall omit the term “permanent” preceding the term “residence address” on an
official voter registration application form that is prescribed on or after the effective
date of this Act.” Tex. H.B. 879, 72nd Leg., R.S. (1991). If the limiting feature of
“permanent” is removed from the voter registration card, how then can a person
be prosecuted from using that registration card to vote at a temporary residence?
This demonstrates there is not legally sufficient evidence to overcome a motion for
directed verdict.
3. Even assuming the State cleared the legal sufficiency for a directed verdict in its case in chief, the full record below very clearly proved as a matter of law that no rational jury could have found the essential elements of the offense—that Appellants “knew” they were ineligible—beyond a reasonable doubt.
The State failed to prove its case beyond a reasonable doubt. Certainly
adding in Appellants defense did not move the ball closer to conviction. In fact,
both Appellants very plainly identified their personal, subjective intent to be
registered and their attitude on the day of their vote that they both knew they were
voting legally. See Section “5.D.1.”, infra, regarding “Gaultney” letter.
Both Cook and Doyle testified that they did not believe they were doing
No further proof of state of mind of Appellants is needed. Neither Appellant
believed they were violating the law, and the evidence by the State did not surpass
the reasonable doubt threshold, which is high. If circumstantial evidence provides
no more than a suspicion, the jury is not permitted to reach a speculative
conclusion. Louis v. State, 159 S.W.3d 236, 246 (Tex. App.—Beaumont 2005, pet.
ref'd).
Here, the jury would have to wholly disregard the uncontroverted testimony
of Appellants and rely simply on speculative circumstantial evidence to arrive at a
conviction. This is not the rigorous review that legal sufficiency demands. For that
reason, this Court should REVERSE the verdict.
4. Both Appellants presented their uncontroverted testimony that they believed they were legally voting, did not believe it was illegal, and had reviewed authoritative opinions of law from officials and agencies charged with enforcement of voting laws. This entitled them to the Mistake of Law defense, and it thus affixed based on their testimony. The judgment should be REVERSED.
The Texas Penal Code provides under two specific circumstances, both of
which are present here, an actor has an affirmative defense to prosecution. First, if
that person exercised reasonable reliance upon (1) an official statement of the law
contained in a written order or grant of permission by an administrative agency
charged by law with responsibility for interpreting the law in question; or (2) a
48
written interpretation of the law contained in an opinion of a court of record or
made by a public official charged by law with the responsibility for interpreting the
law in question.
“The purpose of a mistake-of law defense is to negate the mental state that
the defendant must have to be guilty of the charged crime. See, e.g., Model Penal
Code § 2.04 explanatory note (1985); W. LaFave & A. Scott, Substantive Criminal
Law § 5.1, at 575 (1986).” Ostrosky v. State of Alaska, 913 F.2d 590, 595 (9th Cir.
1990). Without this mental state, an essential element of the offense is missing, and
the party is not guilty. Id.
The reporter’s record, here, contains that reasonable reliance. Both
Appellant testified that they relied upon DX-2 (Secretary of State Opinion GSC-1)
and DX-3 (Attorney General Opinion GA-0141). The Attorney General is Texas’
chief law enforcement officer whose office interprets Texas law on a daily basis,
and the Secretary of State is the Chief Election Law officer of the State invested
with the specific authority to interpret the election code.4
Both Cook and Doyle testified that they did not believe they were doing
(Cook); 6RR.101 ll 10-19; 103 ln 7 (Doyle). Both Cook and Doyle testified that 4 The Reporter’s Record would have been further complete should the Gaultney letter been included by Appellants’ trial counsel as it formed part of the decision-making process for Appellants’ the night before they voted in the election. See Section “5.D.1.”, infra.
49
they read GA-0141 and GSC-1 and made their determination to vote based on
those documents. 6RR.84 ln 22 – 6RR.85 ln 5 (Cook as to her reviewing DX-2
and DX-3 prior to voting); 6RR.86 ll 11-12 (Cook voting having relied upon DX-2
and DX-3); 6RR.89 ll 18-19 (Cook didn’t believe she was doing anything wrong
based on seeing [in context of questioning] DX-2 and DX-3); 6RR.91 ln 24 –
reviewing DX-2 and DX-3); 6RR.100 ll 8-12 (Doyle reviewing DX-2 and DX-3).
Both parties were in receipt of authoritative statements of the law by officials
charged by the State with interpreting and enforcing the Election Code. Their
determination of residency based on their intent, in accordance with the laws of
Texas, is paramount. They reasonably relied upon those statements and are thus
entitled to the affirmative defense of Mistake of Law. The record supports this
conclusion, requiring this Court to REVERSE the judgment of conviction.
5. Trial counsel never attempted to introduce several items of evidence that would have further proven Appellants’ case, or to file a sufficient post-trial motion detailing the errors at trial. The case should be reversed for a new trial based on ineffective assistance of counsel.
The integrity of our criminal justice system and the fairness of the adversary
criminal process is assured only if an accused is represented by an effective
attorney. See United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66
L.Ed.2d 564 (1981). Absent the effective assistance of counsel “a serious risk of
injustice infects the trial itself.” Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S.Ct.
50
1708, 1715, 64 L.Ed.2d 333 (1980). Thus, a defendant is constitutionally entitled
to have effective counsel acting in the role of an advocate. See Anders v. California,
The Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53,
57 (Tex. Crim. App. 1986) adopted the Strickland test as the proper test under state
law to gauge the effectiveness of counsel. Pursuant to that test
. . . the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id.
It applies to all stages of a criminal trial. Hernandez v. State, 988 S.W.2d
770 (Tex. Crim. App. 1999).
A. Trial counsel never, but should have, offered the “Gaultney”
letter to prove the state of mind of Appellants.
Trial counsel had a letter from Carol Gaultney, the State of Texas Voter
Registrar, submitted here in Appendix Tab 4, that should have been admitted. See
Appx., Tab K. The letter states:
Pursuant to the statewide voter registration list requirements set forth in the Help America Vote Act of 2002, 42 U.S.C. § 15483 and Sections 13.072(a) and 18.061 of the Texas Election Code, I, Carol Gaultney, Voter Registrar for the County of Montgomery, State of Texas, hereby certify that this list of registered voters is comprised of
51
the Official State List of Registered Voters maintained by the Office of the Secretary of State pursuant to Sections 13.072(a) and 18.061 of the Texas Election Code for the election held on the 8th day of May, 2010 in the County of Montgomery.
This list represents a best effort to accurately identify all eligible
voters within the boundaries of The Woodlands Road Utility District #1. All readily available sources were used, including Montgomery County Appraisal tax rolls, digital Appraisal District boundary files, and a digital file of geocoded registered voters. This list has not gone through a complete street comparison approval process.
Voters on suspense are denoted with an ‘S’ at the beginning
oftheir certificate number. Suspense voters and all voters who have moved will need to fill out a statement of residence card. Their new address will need to be verified that it is within your current boundaries.
The Gaultney letter—on its face—bears so much authoritative indicia that it
was an abject failure that counsel for Appellants knew it existed but did not offer it
for admission. It contained: • Office seal of the Montgomery County Elections Administrator.
• Official letterhead of the Montgomery County Elections Office
• Official dating of 20 days prior to the May 8, 2010 WRUD election
• Official title: “Certification of Voter Registrar.”
• Official certification: “I, Carol Gaultney, Voter Registrar for the County of Montgomery, hereby certify . . . .”
• Official statement: “This list represents a best effort to accurately identify all eligible voters within the boundaries of The Woodlands Road Utility District #1.” (emphasis added).
• The list included Appellants Sybil Doyle and Roberta Cook.
52
• The list included their registered address, 9333 Six Pines Drive.
• The certification letter is signed by Carol Gaultney, CERA. “CERA”
stands for “Certified Elections/Registration Administrator.”
Further, the Gaultney letter clearly indicated that registering at a
commercial location was known to the Official Montgomery County Voter
Registrar and was accepted by this official. See Appx., Tab K.
This letter was highly relevant to Appellants personal knowledge of their
eligibility. Trial counsel should have admitted it, and it was reversible error not to
do so. Both prior trials, that of Jim Jenkins (Appx., Tab L (sustained objection to
DX-3), Tab K (DX-3 in Jenkin’s trial)) and Adrian Heath (Appx., Tab M at 220,
Tab K (DX-5 in Heath’s trial), the letter was either admitted (Heath), or attempted
to be admitted and denied (Jenkins). Judicial notice is requested of these official
court records referenced in this brief.5
This critical document goes directly to the mind of the RUD-registered voter
reading it—here, Appellants. It directly affects the element of knowledge, as
5 See TEX. R. EVID. 201(b),(c),(f); See, e.g., Office of Pub. Util. Counsel v. Public Util. Comm’n., 878 S.W.2d 598, 600 (Tex. 1994) (appellate court has power to take judicial notice for first time on appeal); Gonzales v. State, 723 S.W.2d 746, 751 (Tex. Crim. App. 1987) (Judicial notice can be requested of a fact when “its existence is so easily determinable with certainty from sources considered reliable, it would not be good sense to require formal proof.”
53
they would have pointed to the lack of knowledge of Appellants that they were
ineligible. Appellants could have unquestionably pointed to that fact and claimed
they based part of their knowledge on the Gaultney letter.
Further, it is not as if trial counsel did not know it existed, as Jim Doyle, one
of Appellants’ witnesses, mentioned the letter in his testimony—at which point the
State objected. 6RR.63 ll 6-7 (testimony of Jim Doyle identifying the documents
that he and Appellants reviewed prior to them voting).
The element of knowledge of the Appellant is the crucial element, the mens
rea—half of the criminal context—that when combined with the actus reus will
satisfy criminal culpability. Without knowledge, no charge can be sustained. The
document should have been admitted. B. Trial counsel never offered, but should have, the scores of
voter registrations that were at businesses, county and state offices, and even the very courthouse of the trial, to prove arbitrary and selective enforcement.
Trial counsel also had access to official public records (which are an
exception to hearsay and fully admissible) that scores of persons are registered at
businesses, county and state offices, and even within the local courthouse. See
Appx., Tabs F-J (showing scores of voters “reside” even in the local district
courthouse and other commercial buildings). This clear evidence, judicial notice of
54
which is requested,6 very plainly shows two things.
First, it shows the definition offered by the State—that where one lives must
be the location from which one votes—cannot be maintained. The moment a
person registers from an address that is other than a residential dwelling place, the
registration should be, according to the State, invalid. This weighs heavily on the
motion to quash the indictment, and should have been appended to that motion. It
should also have been admitted by Appellants’ trial counsel to show the jury that
scores of their fellow citizens believe this course of action is okay. Further, it
showed that the state of mind in registering from a commercial establishment is
ordinary, common, and understood by a segment of the public at large too
numerous to be illegal, based on a ordinary reading of the statute.
Second, it demonstrates in the weight of the evidence that the State is
engaged in arbitrary and selective enforcement, when the existence of voters who
“reside” at government buildings (courthouses and constabulary offices), private
mailbox stores, and other commercial buildings, has existed for years. Appellants
are the unfortunate political underdogs to a local election contest. This criminal
trial is the result of referrals to the State of Texas, by the prevailing parties in that
6 See TEX. R. EVID. 201(b),(c),(f); See, e.g., Office of Pub. Util. Counsel v. Public Util. Comm’n., 878 S.W.2d 598, 600 (Tex. 1994) (appellate court has power to take judicial notice for first time on appeal); Gonzales v. State, 723 S.W.2d 746, 751 (Tex. Crim. App. 1987) (Judicial notice can be requested of a fact when “its existence is so easily determinable with certainty from sources considered reliable, it would not be good sense to require formal proof.”
55
contest, for criminal investigation. It gets no more selective and arbitrary
than that. Even the local district attorney did not prosecute the case, and agreed
publicly that the law was vague.7 One should not be subject to the whims of the
State at the behest of the politically powerful.
C. Trial counsel’s motion for new trial failed to specifically identify the failures of the trial court to permit meaningful review by the trial court and appellate court.
The standard for criminal motions for new trials in Texas is clear: “[a]n
essential element of [a motion for new trial] is that the matter of error relied upon
for a new trial must be specifically set forth therein. The wisdom of that rule lies
in the fact that reasonable notice should be given not only to the trial court but the
State, as well, as to the misconduct relied upon and to prevent a purely fishing
expedition on the part of the accused.” State v. Gonzalez, 855 S.W.2d 692, 694 (Tex.
The purpose of this requirement is to allow the court enough notice to
7 The local District Attorney, even though publicly stating the law was vague, equivocated on the stand in the State v. Jenkins trial and was impeached on that flip-flop. Compare Editorial “Residency: a state of mind almost?”, THE COURIER, June 20, 2010, at 10A (quoting First Assistant District Attorney Phil Grant, interviewed during the civil election contest, stating, “I think it would be helpful if the secretary of state would put forth some clear guidelines regarding the definition of residency, rather than leaving it as vague as they have in prior opinions.”) with Phil Grant’s statements in State v. Jenkins, Tab N at 137-141 (esp. 140 ln 18 (the law is “specific”) versus 141 ln 6 ( the Secretary of State’s interpretations are “vague”)). If the Secretary of State can’t provide a clear idea of the law, and this is agreed to by the local district attorney’s office, how can the average citizen survive?
56
prepare for the hearing and make informed rulings and to allow the State enough
information to prepare a rebutting argument. See Trout v. State, 702 S.W.2d 618,
620 (Tex. Crim. App. 1985) (holding that the ground must be mentioned in the
motion). Here, counsel should have filed the motion based on detailed points of
error. “A motion for new trial is a prerequisite to presenting a point of error on
appeal only when necessary to adduce facts not in the record.” TEX. R. APP. P.
21.2. For counsel to fail to draft a detailed motion, it prevented any future counsel
from pursuing such points at a set hearing or for later appellate counsel to raise on
appeal.
CONCLUSION
Consider the following hypothetical scenario: a person desires to change the
nature of a local taxing entity. She reviews the law, determines that her purpose is a
permanent one—to influence, via her constitutional franchise, the composition of
the local taxing entity. She reads Section 1.015 of the Election Code and
determines that her purpose is not temporary, it is permanent. She wants to
permanently vote in the taxing entity district. Her purpose is clear and permanent.
She decides to give up the right to vote where she lays her head at night and
resolves to vote only within the taxing district entity. She reviews relevant Attorney
General of Texas and Secretary of State of Texas opinions, including Supreme
Court opinions about residence. Then she votes.
57
This foregoing hypothetical is what actually happened to Appellants. The
criminal case that ensued (1) prosecutes them under an incredibly vague law, (2)
was legally insufficient to prove that they knew they were not eligible to vote, and
(3) even if so, entitles them to the Mistake of Law defense because they relied upon
state agency interpretations of laws which those agencies were charged to enforce
by law.
The facts in these two cases are much clearer than the law. Yes, the context
of this case is a fiscal policy debate over a million-dollar-per-year taxing entity with
only two “allowed” voters (a taxing oligarchy), and differences in opinion of how to
change the political landscape. By challenging this local fiefdom, Appellants
opened a window into a gaping constitutional infirmity in voter registration law.
That such infirmity existed is not their fault, and is certainly not sufficient grounds,
given the record in this case and the constitutional barriers on vagueness, to
convict. The verdict in this case should be REVERSED.
For the foregoing reasons, Appellants ask the Court to:
Ø Reverse this case and render judgment of acquittal based on the unconstitutional vagueness of Section 1.015 of the Texas Election Code
Ø In the first alternative, reverse this case and render judgment of acquittal for legal insufficiency on Appellants’ motion for directed verdict.
Ø In the second alternative, reverse this case and render judgment of acquittal for legal insufficiency on the record as a whole;
58
Ø In the third alternative, reverse this case and render judgment of acquittal on the affirmative defense of Mistake of Law.
Ø In the last alternative, reverse this case and order a new trial for ineffective assistance of counsel.
Respectfully submitted,
/s/ Stephen Casey Stephen Casey Texas Bar No. 24065015 595 Round Rock West Drive, Suite 102 Round Rock, Texas 78681 Telephone: 512-257-1324 Fax: 512-853-4098 [email protected]
CERTIFICATE OF COMPLIANCE
The preceding brief contains 13,239 words within the sections identified under Tex. R. App. P. 9.4, typed upon Microsoft Word for Mac 2011, Baskerville 14 point font. /s/ Stephen Casey Stephen Casey
Stephen Casey
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing brief and
accompanying Appendix has been served on the Friday, May 15, 2015, on the following via facsimile transmission:
59
/s/ Stephen Casey Stephen Casey
i
NO. 09-14-00458-CR AND NO. 09-14-00461-CR
In the Ninth Court of Appeals
Beaumont, Texas
SYBIL DOYLE, APPELLANT AND ROBERTA COOK, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
APPEALS FROM CAUSE NOS. 12-03-02583 AND 12-03-02585 359TH DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS
HON. JOHN STEVENS PRESIDING
APPELLANTS’ BRIEF APPENDIX
Stephen Casey Texas Bar No. 24065015
CASEY LAW OFFICE, P.C. 595 Round Rock West Drive Suite 102 Round Rock, Texas 78681 Telephone: 512-257-1324 Fax: 512-853-4098 [email protected]
ORAL ARGUMENT REQUESTED
Counsel for Appellants Sybil Doyle and Roberta Cook
ii
TABLE OF CONTENTS
1. Judgment and Sentence ................................................................................ Tab A
2. State v. Jenkins State’s Opening Argument ..................................................... Tab B
3. State v. Heath State’s Opening Argument ....................................................... Tab C
4. McDuffee testimony (State v. Heath) ............................................................... Tab D
5. McDuffee testimony (State v. Jenkins) ............................................................. Tab E
6. Government “residence” registrations .......................................................... Tab F
7. School “residence” registrations ................................................................... Tab G
8. Post Office Box “residence” registrations .................................................... Tab H
9. Commercial business “residence” registrations ............................................. Tab I
10. Voting “residence” not same as homestead designations ............................ Tab J
11. State v. Jenkins record re: Gaultney Letter ................................................... Tab K
12. State v. Heath record re: Gaultney Letter ...................................................... Tab L
13. State v. Jenkins record re: Phil Grant’s testimony ......................................... Tab N
TAB A
92
SID#: TX05275202 TRN#: 9151289024 DA#:121000.1
RECEIVED AND FILED fPRAECOROjQ
~t--¥-O'CIOCk+=_~
MAY 2 2 2014
Plea of Guilty or Nolo-Jury Waived-Community Supervision
THE STATE OF TEXAS
V.
Roberta Margaret Cook
CAUSE NO. 12-03-02585-CR
§ IN THE DISTRICT COURT OF
§ MONTGOMERY COUNTY, TEXAS '3,tj7t1
§ J).'f11 JUDICIAL DISTRICT
JUDGMENT AND ORDER
On MAY 22, 2014 , the above entitled and numbered cause wherein the Defendant is charged with the felony offense ofILLEGAL VOTING, came to be heard. The State appeared by and through its Assistant District Attorney, J ohnathan White, and the Defendant, Roberta Margaret Cook, appeared both in person and by counsel, Jarrod L. Walker, and both parties announced ready for trial. The Defendant, in person and by and through her attorney, waived the right of trial by jury in writing; the Assistant District Attorney approved and consented in writing to the waiver of a jury; and, the Court approved and consented to same. The Defendant, having been duly arraigned, entered her plea of Guilty. It appeared to the Court that the Defendant was mentally competent and that her plea was free and voluntary. The Court admonished the Defendant as to the consequences of such plea and the Defendant persisted in entering her plea of Guilty. Therefore, the Court accepted the Defendant's plea.
The Court, having heard the Indictment read and the Defendant's plea thereto, postponed a finding of guilt and ordered that a Pre-Sentence Investigation be conducted by the Community Supervision and Corrections Department.
And, the Court on this date, MAY 22,2014, after reviewing the evidence submitted and determining that it was sufficient to show the guilt of the Defendant, and having considered the Pre-Sentence Investigation Report and arguments of counsel, is ofthe opinion and, therefore, finds the Defendant guilty of the offense as charged and that the offense was committed on May 08,2010.
IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by this Court that the Defendant is guilty of the offense ofILLEGAL VOTING and that said Defendant committed said offense in Montgomery County, Texas on May 08,2010, as charged in the Indictment, and that her
/'Y?f'PuniShme~i~onfinement in the Texas Department of Criminal Justice, Institutional qv Division fo \It . ears, and a fine of$ 5000, and that the State of Texas have and recover
of the Defendant all costs expended in this prosecution, for which let execution issue.
93
CAUSE NO. 12-03-02585-CR STATE OF TEXAS V. Roberta Margaret Cook
However, it appearing to the Court from the evidence that the ends of justice and the best interest of the public as well as the Defendant will be served by the suspension of the imposition of sentence herein;
IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the imposition of sentence herein is her~~ suspended and that the Defendant is hereby placed on community supervision for the period o~ years on the following terms and conditions, to-wit:
cfJ CONDITIONS OF COMMUNITY SUPERVISION
That during the tenn of community supervision the Defendant is hereby ORDERED to:
a. Commit no offense against the laws of this State or any other State or the United States;
b. Avoid injurious or vicious habits; c. Not use or consume alcohol or controlled substances; d. Avoid persons and places of disreputable or hannful character; e. Work faithfully at suitable employment as far as possible; f. Support her dependents; g. Remain within the limits of the State of Texas, unless given permission to leave
therefrom; h. Report to her community supervision officer at the Montgomery County Commlmity
Supervision and Corrections Department at least monthly and at all other times as directed by her community supervision officer.
Should the community supervision of the Defendant be transferred to a supervising department of another state, IT IS ORDERED that the Defendant shall report in person to the supervising officer of that department at least monthly and at all other times as directed by the supervising officer of that department. In addition, the Defendant is ORDERED to report by mail to the Montgomery County Community Supervision and Corrections Department at least monthly, and at all other times as directed by her Montgomery County community supervision officer;
Should the community supervision of the Defendant be transferred to a supervising department of another county of this state, IT IS ORDERED that the Defendant shall report in person or by mail as directed by the Montgomery County supervising officer to the Montgomery County Community Supervision and Corrections Department at least monthly until such time as the Montgomery County Community Supervision and Corrections Department receives notification of acceptance by the county where the Defendant's community supervision is being transferred. Ifthe Defendant's community supervision is accepted by another county, the Defendant is ORDERED to report in person to the supervising officer of that
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Minute
94
CAUSE NO. 12-03-02585-CR STATE OF TEXAS V. Roberta Margaret Cook
i.
k.
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m.
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o. p.
q.
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Minute
department at least monthly and at all other times as directed by the supervising officer of that department. Should the county not accept transfer of the Defendant's community supervision, the Defendant is ORDERED to report in person to the supervising officer of the Montgomery County Community Supervision and Corrections Department at least monthly, and at all other times as directed by the Defendant's Montgomery County community supervision officer; Permit the community supervision officer to visit her at her home or elsewhere; Submit to an alcohol and drug evaluation to determine the existence of a drug or alcohol dependence condition, and to determine an appropriate course of conduct necessary for the rehabilitation of the Defendant's drug or alcohol dependence. The Defendant will attend the appropriate counseling prescribed by this evaluation at the Defendant's expense; (1) Submit to medical, chemical, or any other test or examinations for the purpose of determining whether or not she is using or is under the influence of alcohol, narcotic drugs, marijuana or any other controlled substances and pay all costs associated with such tests and examinations. Detection of any controlled substance or alcohol shall be construed as a violation of her community supervision; (2) Not use any products, devices, or liquids to adulterate, dilute, mask or any way alter a sample or give a false testing sample. Test results indicating diluted, masked or altered samples will be presumed to be a "positive" test result that may result in revocation of her community supervision; Contribute 240 hours in community service restitution at an organization approved by the Court and designated by the Community Supervision and Corrections Department. Community restitution is ORDERED to be performed at the rate of JL hours per month beginning JUNE, 2014 ; Enroll in and complete the G .E.D. preparatory course as directed by her community supervision officer if Defendant does not possess a minimum of a G.E.D. Said course shall be completed and the G.E.D. obtained within one (1) year from this date; Defendant shall submit his person, property, place of residence, vehicle, andlor personal effects to search at any time, with or without a search warrant or warrant of arrest, by any community supervision officer or law enforcement officer; Defendant shall not possess any firearm(s); Pay a community supervision fee of$60.00 per month to the Community Supervision and Corrections Department between the 1 st and 15th day of each month hereafter during community supervision, beginning JUNE 22, 201L; Pay $50.00 Crime Stoppers fee to the Community Supervision and Corrections Department on or before AUGUST 22,2014; Pay $85.00 to the Community Supervision and Corrections Department for the PreSentence Inve.§."Ugation report on or before JULY 22, 2014 ; Pay $ 3 '1~:"-' Court costs; $ 0.00 restitution for the benefit of N/A; $ K
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95
CAUSE NO. 12-03-02585-CR STATE OF TEXAS V. Roberta Margaret Cook
Court appointed attorney fees; and $ 5000 fine, all in one lump sum payment to the Montgomery County District Clerk on the day this Judgment is entered <OR> pay in installments, the total sum of the foregoing to the Montgomery County District Clerk, including $2.00 fee for each payment made (pursuant to Article 102.072, T. C. C.P.), as set forth in the Collection Agreement which is incorporated herein and made part of this judgment as if copied verbatim;
The Clerk ofthis Court will furnish the Defendant a Certified copy ofthis Order, and shall note on the Docket Sheet the date of delivery ofthis Order.
v6 SIGNED AND ENTERED this theD2;2 day of f1fJ 11 , 2014.
Copy received:~L.l.-~ Defendant
District Clerk of Montgomery County, Texas,
Byftl.!' A .1 j 151 , Deputy
Minute Date :_,~_ ----
~ "..; ,,';'
RIGHT THUMB PRINT
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TAB B
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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THE COURT: Not guilty will be entered into the
record and you may be seated.
All right. At this time, I'm going to ask the
attorneys to make their opening statements if they wish.
And the State of Texas may move forward.
MR. WHITE: Thank you, Your Honor.
THE COURT: And, ladies and gentlemen, opening
statements, again, the lawyers have a reasonable amount of time
to make those.
So, you may proceed, sir.
MR. WHITE: May it please the Court, counsel.
Ladies and gentlemen of the jury, we spent time
talking about residence yesterday. And the general principle
in the state of Texas, if you boil it all down, is vote where
you live. Don't vote where you don't live.
Now, Mr. Jenkins is not a student. He's not a
solider. And he's not a snowbird.
He's a married man that owns a home, 4,500
square foot home, in The Woodlands outside of the Road Utility
District. And it's not a situation where he owns two homes and
he splits his time fifty-fifty in each one. He owns one home.
And he stayed the night of the election in a hotel inside the
Road Utility District in order to vote in that election and
manipulate the outcome of that election.
Three of his associates ran for Board for the
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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Board of Directors of the Road Utility District as candidates.
And the scheme that Mr. Jenkins concocted was to elect them to
the majority of the Board and take control of the Road Utility
District.
What is the Road Utility District? I think we
all want to know.
The Road Utility District is a government
entity. It was established by Congress -- or by the
Legislature of the state of Texas in 1991 for the purpose of
creating and maintaining the roads in The Woodlands area, very
specific area, inside of The Woodlands Township. It's a
business district. It's commercial properties. Almost
entirely commercial and that was by design.
The intent of the Road Utility District was not
to tax residents for the roads that people drove on that
benefited the commercial properties and the businesses in the
area that brought people from outside of The Woodlands into it,
into these businesses. The purposes was to tax the businesses
that benefited from those roads.
However, Mr. Jenkins did not like the idea of a
taxing authority that didn't answer to voters. So, he, the
group, concocted a scheme to take over the RUD. And that was
what he did.
The three members of the group that ran for the
Board of Directors were Pete Goeddertz, Rick McDuffee, and Bill
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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Berntsen.
And the scheme began in March when those three
filed their applications to become candidates for Board of
Directors. And then rest of the group came on board. I
believe Mr. Jenkins changed their voter registration to 9333
Six Pines Drive, which is a Residence Inn, a Marriott Residence
Inn.
And those voter registrations were exchanged at
the beginning of April, which is ironically very close to April
Fools' Day. The Residence Inn was chosen by -- it was
purposefully chosen. A little play on words. Residence Inn.
And what's important about it is when
Mr. Jenkins and the others declared the residence on these
voter registration applications, they swore under the penalty
of perjury that that is where they lived. They never stayed a
night in that hotel at the time that they swore to that
information.
And on the document, it says it is a crime to
give false information in order to procure a voter
registration, which is exactly what the defendant did.
There's no dispute, there's never a room rented
by Mr. Jenkins prior to the night of the election. First night
he ever stayed in the hotel. Registered 30 days before, which
was the requirement by law to register at least 30 days prior
to the election and then stayed the night of the election.
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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The day after the election, cleared out of the
hotel never to return until something happened. Well, as you
might imagine, the scheme that temporarily hijacked the RUD,
raised a few eyebrows.
It didn't go unnoticed and fraud was expected.
There was a temporary injunction that froze the results of the
election so that the three members of Mr. Jenkins' group did
not take their seats on the Board.
So, the mission to take over the RUD was not
accomplished. It wasn't completed.
What Mr. Jenkins -- what the defendants did,
they inserted themselves into the lawsuit. They filed as
intervenors.
MR. HEATH: Your Honor, may we approach the
Bench?
THE COURT: Okay.
(AT THE BENCH, ON THE RECORD)
MR. HEATH: We're getting into the -- without
approaching the Bench, we're getting into the election contest.
He's already talked about it.
MR. WHITE: My understanding was that we're not
talking about the findings of fact and conclusions of law of
the contest or of the opinion of the appellate court. And I
don't intend to do that.
MR. HEATH: Well, he's already gone through what
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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the results were. He told them what the result was.
THE COURT: No, he hasn't.
MR. HEATH: They were not able to succeed in
supplanting the Board.
MR. WHITE: That was because the vote was
frozen.
MR. HEATH: He's already talking about the --
THE COURT: He wants -- we want the jury to be
making a decision based upon what they hear here and the
evidence presented and not pouring over decisions that were
made by other authorities.
MR. WHITE: Absolutely. That's exactly what I'm
going to go in to. I'm going to leave the Court's decisions
out of it completely. The fact that they were stalled from
counting the ballots, certifying the election, was the reason
that they took -- that Jenkins and the group took actions later
on renting additional hotel rooms.
MR. HEATH: He's talking about the intervention
in the election, Your Honor.
THE COURT: He has a fair opportunity to present
what he feels like is the evidence to prove the case which may
involved things that exist before, during, and after the
election. And I'm going to give him a fair opportunity; but
that motion, that was made by the Defense in limine. I don't
-- I'd rather the implication not be the jury -- that some
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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favorable --
MR. WHITE: Absolutely.
THE COURT: -- for your side.
MR. HEATH: My objection at this point in time
is, to me, that's the only inference that can be drawn.
THE COURT: Well, you've -- I disagree. And I
think there are other inferences to be drawn.
But you be careful. You're getting close to an
area that I think it is objectionable and is not fair.
Go ahead.
MR. GLICKLER: The only thing I would add is
that until that lawsuit was filed, Mr. Jenkins stayed in that
hotel one night. And he spoke last week. He said he wants to
point out that he stayed in the hotel multiple times
afterwards. But the point is, the aggravated fact that once
that lawsuit was filed, that's when they went back to the
hotel.
THE COURT: Well, just because litigation might
have representation, I think that people -- I don't think that
that's --
MR. GLICKLER: I believe the evidence is going
to show that.
THE COURT: I think just the outcome of the
litigation --
MR. WHITE: Absolutely.
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THE COURT: -- stay away.
MR. WHITE: I'm not going to touch it.
(IN THE HEARING OF THE COURTROOM)
THE COURT: You may proceed.
Thank you, ladies and gentlemen, for bearing
with us.
MR. WHITE: Because the election results were
frozen and the vote wasn't canvassed, as they called it, and
the votes weren't certified, this scheme to take over the RUD
was not completed. So, the defendant and his group asserted
themselves and tried to intervene to get their votes counted.
And in so doing, they got together and made a
plan and came up with additional things that they thought,
well, we better go back and cover our tracks; we better rent
some extra nights at the hotel; we better make an appearance
there and say hello to the staff, drop in even if we didn't
have rooms rented; take photos. You're going to see and hear
all of that evidence.
There are members of this group that have
decided to no longer affiliate with the group and they're going
to testify in this case about what happened. Though they
thought the ends justified the means at the time, these
witnesses will agree that there were other ways to go about
what this group did.
And the evidence will show that despite all of
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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the legal remedies that may have been available to Mr. Jenkins,
what he chose to do was to engage in an illegal voting scheme
rather than request records trying to bring -- to try to see
what was there, investigate, try to bring it out if there was
anything inappropriate. He chose to manipulate the vote, to
try and cheat the system. And that's what the evidence is
going to show.
In addition, this group, while they were in the
process of trying to get their votes counted, they did things
to try to make it appear not only that they were living in the
hotel as guests and renting rooms, splitting them between a
number of them, they also hid their personal belongings at
their house, packed things in boxes. They -- one or two of
them put their house on the market for a price that it wouldn't
sell for. They cut the power of their house, the breaker
panel, to make it appear when parties went through and the took
photos of the homes that they were not living in the home.
They tried to make it appear that way.
You're going to be able to see those photos of
the inside of their homes that were taken right around this
time these things were happening.
And I guess the question still probably remains:
Why? Why did they do it? Why to take over the RUD? But why
to take over the RUD?
Mr. Jenkins and his group of people are
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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political activist and they are actively looking for causes to
get involved in. And despite not living inside the RUD, not
being taxed by the RUD, for the roads that are built and
maintained to the benefit of those businesses and commercial
properties that exists inside the RUD, he perceived some
problem with this tax war as I said earlier and felt that it
was his duty and his group to go in and take it over.
You will have an opportunity to hear from the
Road Utility District as well. You can hear both sides of the
story, determine which group is more credible.
The State doesn't have a dog in that fight.
But at the end of all the evidence, you will
find that the defendant went to this hotel for temporary
purposes only. And the purpose was to vote in this election
and manipulate the outcome of this election and elect three of
the members of his group to the Board and take over the Road
Utility District. And do what? Shut it down.
In this case, activism of this group crossed the
line into lawlessness. Mr. Jenkins was fully aware of the
criminal implications of this. He was even sent a warning
letter by the DA's office here. The DA was informed that
voters had registered to vote in a district that has no
residents.
They sent the letter out informing them of the
law, directing him to the election code. But the evidence will
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show that defendant purposefully ignored the law, the law that
we talked about yesterday in voir dire.
He cheated the system. He knew exactly what he
was doing.
And at the close of evidence, you'll find the
defendant guilty of violating perhaps the most important
process you have as free Americans and you'll hold him
responsible for illegal voting.
THE COURT: Mr. Heath, do you want to make an
opening statement now?
MR. HEATH: Your Honor, may it please the Court,
I'll go ahead and make an opening statement now.
THE COURT: Go ahead.
MR. HEATH: Ladies and gentlemen of the jury,
Mr. Jenkins, as he sits in that chair today as the accused
citizen, took a journey just like his forefathers took a
journey across the big ocean to come to a country where one
person had one vote. One person. One vote. Where a person
had the right to choose where they reside. Where a person, and
not some governmental entity, chooses where they reside.
Now, the facts in this case and the issues in
this case are of fundamental importance. They resonate on the
right to vote. They resonate on the right to choose your
residence.
And if you'll recall in our voir dire, one of
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KAREN D. DESHETLER, CSR281-723-9090
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to the indictment, guilty or not guilty?
DEFENDANT: I plead not guilty, Your Honor.
THE COURT: Not guilty will be entered into the
record. You may be seated.
All right. Ladies and gentlemen of the jury, at
this time we will hear opening statements by the parties and
the State of Texas gets to go first on this. And the lawyers
have a reasonable amount of time to make opening statements.
Mr. White.
MR. WHITE: Thank you. May it please the Court,
counsel?
THE COURT: Yes, sir.
OPENING STATEMENT
MR. WHITE: Ladies and gentlemen of the jury, at
jury selection yesterday we spoke a lot about the term
"residence." And I'll let this fire truck or whatever it is go
down the street before we continue on too much.
We spoke a great deal about concepts like
domicile, home, place of habitation, dwelling. What do these
mean? They kind of mean the same thing and they have subtle
differences. But in the context of residency, you learn that
the law in Texas is that residence means domicile. One's fixed
place of habitation.
MR. WRIGHT: Your Honor, I would object. He's
making argument in opening statement. I think he's supposed to
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KAREN D. DESHETLER, CSR281-723-9090
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be trying to layout what the witnesses would say in the
evidence, but I think he's making argument at this point.
THE COURT: Well, overruled. However, this is
not the time for argument. This is a time for the lawyers to
present what they expect the evidence to show. I give them --
I give lawyers a little leeway because some of this may infer
evidence they expect to show. And as long as the attorneys
couch it in that's what they expect the evidence shall show,
then that fits with in proper opening statement. But the
objection is noted. It's -- the statement -- that's correct.
Mr. Wright is correct. This is not the time for argument.
That is not the final argument stage.
Go ahead.
MR. WHITE: Members of the jury, the law that
you will be presented with in this case when you read your jury
charge at the end of the guilt/innocence phase of this trial
will be that residence means domicile, one's fixed place of
habitation to which one intends to return after a temporary
absence. That was a concept that was discussed at jury
selection. The general principal in Texas being to vote where
you live. That's something that you, as a panel, came in
knowing before you sat down yesterday. You expressed that to
us. The place that you go back to.
And also in jury selection yesterday, we
discussed the situations where it may be hard to define
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KAREN D. DESHETLER, CSR281-723-9090
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residence.
MR. WRIGHT: Your Honor, I have to object again.
I don't know if he is trying to set something up or whatever,
but he's talking about what happened in jury selection and
what's going to be in the final charge, which I conclude to be
arguing and not stating what he intends to evidence to show.
THE COURT: You intend to tie this up as to what
you expect the evidence to show?
MR. WHITE: In the next sentence.
THE COURT: All right. Overruled.
MR. WHITE: The situations that were discussed
in voir dire where it's hard to determine residence, the facts
will show in this case that the Defendant didn't try to vote
from a vacation home. He didn't try to vote from one of his
ten properties. He doesn't own ten properties. The facts will
show that he doesn't have employment that takes him all over
the country, moving from place to place with assignments
lasting a month or two months or three months. He's not a
soldier. He's not a snowbird. He's not a student living in a
four-year university. Adrian Heath is not homeless. While he
may be a unique person, he's not one of those weirdos that
drives around the country in an RV, that sold their home and
lives in a recreational vehicle. He's not one of those folks.
The Defendant owns one home where he lives with his wife. He
has a son and a daughter, a residence of 23 years located at
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KAREN D. DESHETLER, CSR281-723-9090
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43 West Stony Bridge Court in The Woodlands, Texas. He has a
homestead exemption on that property. And under the penalty of
perjury to gain that homestead exemption, you swear that you
will occupy that property as your principal residence. And
he's done that for the last 23 years.
MR. WRIGHT: I object, Your Honor, because he is
basically talking about law that's not relevant to this case.
He's talking about your person -- your principal residence or
your homestead exemption for tax purposes, not for the election
code.
THE COURT: Overruled. Overruled.
Go ahead.
MR. WHITE: At 43 Stony Bridge Court, the
Defendant not only has his family, he has his clothing, his
furniture, his mementos, his books, his photographs, and all of
his other belongings.
We're here because the Defendant is a
self-claimed political activist. The evidence in this case
will show that he recruited nine other members in a group who
are also political activists in a scheme to elect three members
of that group to the board of directors of the road utility
district. That road utility district being, as you heard in
the indictment, The Woodlands Road Utility District Number 1.
And the evidence will show that the only effort
that this group of ten made to show legitimate intent to reside
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KAREN D. DESHETLER, CSR281-723-9090
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in that hotel was renting two hotel rooms in the RUD the night
before the election. Supposedly where eight grown men and two
married women stayed and voted the next morning in that
election.
By this time you're probably wondering a little
bit about what the RUD is. The Woodlands Road Utility District
Number 1 is a government entity established by the legislature
in 1991 with the purpose of building and maintaining roads in a
geographic area inside The Woodlands. It's a commercial area.
There are almost no residential properties in that area,
virtually no residential property. It's almost 100 percent
commercial and that's by design. There are no residents in the
road utility district because the purpose of the road utility
district the evidence will show was not to burden these
citizens and the residence The Woodlands with paying the taxes
that would build these roads that would benefit the businesses
that decided to locate in the RUD utility district. The
purpose was for those businesses to pay the taxes that built
the roads that bring people and business to them. Now the
residents in the area get to use those roads and that's a free
benefit to them. But the purpose, again, was to benefit the
businesses in the RUD. And, therefore, the taxes would be paid
by them and not the residents. Almost 60 percent of the
traffic in the road utility district actually comes from
outside the road utility district coming into it. And
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KAREN D. DESHETLER, CSR281-723-9090
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businesses, again, locate by choice in that road utility
district and pay the taxes that built that road in the
structure.
The structure of the road utility district is
managed by a Board of Directors consisting of five directors.
Three of them were up to election in 2010, which is the
election in question today. Quite often, these elections are
unopposed, meaning no one runs for director. And when that
happens there is not an election. That's by statute to not
waste taxpayers' funds in having an election if there's no
contest.
Before we talk about how the scheme worked, what
the evidence will show of why this was done, the short answer
is that the Defendant philosophically had -- was opposed to the
road utility district. He had never heard of it before. He
found out that there was a lot of public debt because it's
expensive to build roads and he was very close to two of the
roads in the road utility district. The evidence will show
that he wanted some control, wanted some say in that election,
believed he deserved to vote. And the evidence will also show
it wasn't for personal gain because directors of the road
utility district only make something like $25 a day when they
serve. It wasn't that sort of thing. It was a political and
idealogical thing.
So how was it done? The scheme was to run three
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KAREN D. DESHETLER, CSR281-723-9090
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members of the group to the Board of Directors of the road
utility district. Those individuals were Pete Goeddertz, Rick
McDuffee, and Bill Berntsen. They had one objective, those
three. They were going to shut down the road utility district
as soon as they got in control.
Now, in this group of ten of which the Defendant
self identified himself as the general of the group, they
weren't homeless either. They weren't soldiers. They weren't
snowbirds. They weren't students. They had residences. They
owned homes across Montgomery County. A few in The Woodlands.
Some in Conroe. Others in Magnolia. A couple of them out as
far as Cut and Shoot. And all of those properties these
individuals resided at had homestead exemptions on them as
well.
On March 3rd of 2010, the Defendant swore under
penalty of perjury on a voter registration change form that he
lived at 9333 Six Pines, which is the address of the hotel in
the road utility district. Even though he had never rented a
room, never stayed a night there in his life, he swore to that
on his voter registration change. On April 1st and shortly
thereafter, at the Defendant's direction, most of the group of
ten also registered using that same address and swearing that
that was their address even though none of them had ever stayed
a night at that hotel in their life before. Now, the date of
April 1st, April Fool's Day was not intentional. There is a
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provision in the election code that requires you to register to
vote 30 days before the election. It's just a requirement by
law. So they had to vote. That's pretty much why the time was
what it was. The election was on May 8th. They registered at
the beginning of April. What was intentional was the choice of
hotel. It was the Marriott Residence Inn. The Defendant was
being cute. Picked this hotel for a reason. It's a play on
words. If he was ever called to the carpet for fraud, what
better place to stay than the Residence Inn. And that's the
reason that you'll hear that it was chosen.
There will be no dispute, none of these ten
voters ever rented a room at 9333 Six Pines before they swore
they resided. None of them. Not even a month afterward had
any of them rented a room. It wasn't until May 7th, Friday
night before the election, two rooms were rented and eight
grown men and two married women, none of them to each other,
swore they lived there and voted in the election, swore that
they lived in that district when they voted in that election on
May 8th. The day after the election they all cleared out of
the hotel.
Now, the Defendant -- neither Heath, nor any of
the other of the nine voters owned or leased a business
property in the district. No one had any connection inside of
the district. No one paid taxes to the RUD. They simply had
one common objection, to take it over and shut it down. As you
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might expect, this act didn't go unnoticed. There was fraud
suspected. Their vote was challenged, and so their mission to
take over the road was not yet accomplished. Eight of the ten
of the voters inserted themselves into this challenge. And a
month later, up until that point, no one had set foot back in
the hotel. A month later they found the need to do that and
two members rented some nights. Because the group realized,
you know, we've been careless. We were a little bit cheap. We
didn't rent enough rooms to support a real legitimate intention
to stay and we certainly didn't buy enough nights. And they
decided to go back and rent as many nights as they could
afford. So those that could afford to rent some nights in the
hotel rented them. Those that didn't, didn't. The Defendant
didn't rent a single night. He's never rented a room at
Residence Inn ever as far as we know up until at least 2011,
2012, up until June of this year at least, we know he didn't
rent a room at the Marriott Residence Inn that he voted from.
The group decided they need to make appearances
even when they're not paying for a room. They would show up
and go to the hotel and hang out in the lobby. They'd say
hello to the staff, try to get their faces recognized. They
would come together with a group and take pictures. You'll see
some of the pictures that they took at the hotel. They mailed
themselves mail to the hotel so that they could pick it up at
the front desk. And they decided to come up with nonpolitical
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KAREN D. DESHETLER, CSR281-723-9090
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reasons for staying at the hotel. Really there were no
nonpolitical reasons. There was only one reason that any of
them stayed at the hotel and that was to vote in this election.
So coming up with some nonpolitical reasons, you'll hear some
of those reasons. And we know this because there are former
members of the group that decided to disassociate from this
group and they've agreed to cooperate and give truthful
testimony and they will testify in this case.
They thought that the ends justified the means
at the time. They realize they're wrong. There were other
ways to do this, even if they were right in what they thought
about the RUD. There were many other ways to do this, legal
remedies available to them. Instead, they did this because
this was cheap and fast.
Now, during this challenge, photos were taken of
the ten voters' homes, inside their homes. You'll see those
photos. They show current, lived-in homes of all the ten
members of this group. The witnesses will share more of the
plan that they had, which was to disguise the fact that they
were actually living at their homes. Before these pictures
were taken, they made efforts to hide their personal belongings
and put them in sealed boxes or lock them in locked closets.
Some of them -- a couple of them put their house on the market
for a price that wouldn't sale and they didn't sale. And many
of them cut power to their house on the breaker panel in the
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KAREN D. DESHETLER, CSR281-723-9090
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garage to make it look like no one was living there.
All of this for what? For what? The group of
ten voters, including the Defendant, especially the Defendant,
are ardent political activists who are actively looking for
causes to get involved in. Despite not living in the road
utility district, not being taxed by the road utility district,
or those roads that are built and maintained in the district
for the benefit of the commercial properties that are there,
they perceived this problem with the taxing authority that
didn't consider voters. So they wanted to be those voters.
You'll have an opportunity to hear from the RUD. They can
answer questions to the extent that are relevant and you'll
decide who is more credible.
The State has no dog in the fight on this one,
in terms of the RUD versus the Defendant. It's a matter of
whether or not the Defendant voted illegally in this election.
That's the only thing that's important. Of all the remedies
available to them, the Defendant chose the voting scheme based
on providing a false statement to procure a voter registration
and claiming that two rooms over two nights, ten people
established their fixed place of habitation, a place where all
ten would return to their temporary housing to establish a
legitimate intent to make the Residence Inn their home.
Ladies and gentlemen, the facts in this case
will show that the activism of the Defendant crossed the line
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KAREN D. DESHETLER, CSR281-723-9090
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into lawlessness. And aware of the criminal implications of
what he was doing, the Defendant still did it. He purposefully
ignored the law and tried to subvert the law through a
loophole. And after the evidence that you'll hear, at no point
did the Defendant ever have intention of making the hotel his
fixed place of habitation. And I'll ask you after hearing all
the evidence to find the Defendant guilty of violating what's,
perhaps, the most important process we have as free Americans
and to hold him responsible for the offense of illegal voting
and help to shut down the destructive practice of individuals
like the Defendant exploiting the voting rights.
Thank you.
THE COURT: Mr. Wright, do you want to make your
opening statement now or you can defer until later?
MR. WRIGHT: I will defer my opening statement
until our case-in-chief, Your Honor.
THE COURT: All right. Call your first witness.
MR. WHITE: The State calls James Stillwell.
(Witness is sworn.)
THE COURT: Please lower your hand, sir; and
please take a seat. Thank you.
JAMES STILLWELL,
having been first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. WHITE:
TAB D
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MR. WHITE: Yes, sir.
MR. WRIGHT: He may.
THE COURT: You are excused, sir. Thank you.
Your next witness.
MR. WHITE: The State calls Richard McDuffee.
THE COURT: Richard McDuffee.
Come forward, sir.
(Witness sworn.)
THE COURT: Your witness.
RICHARD MCDUFFEE,
having been first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. WHITE:
Q. Good afternoon, Mr. McDuffee.
Would you please introduce yourself to the jury?
A. Richard McDuffee. I reside in Montgomery County,
Texas.
Q. Where do you live?
A. 27907 Hansons Court, Spring, Texas 77386.
Q. Is that in a particular subdivision?
A. Benders Landing Estates.
Q. Benders Lane?
A. Landing.
Q. Benders Landing. Thank you.
And how long you lived there?
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KAREN D. DESHETLER, CSR281-723-9090
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A. Actually four years, going on five.
Q. Mr. McDuffee, do you know the Defendant, Adrian
Heath?
A. Yes, I do.
Q. Do you recognize him in the courtroom, sitting at the
table across from here?
A. Yes.
Q. When did you first meet the Defendant?
A. I couldn't give you an actual definition. It was
probably at Mr. Jenkins' place of business. I would have been
first introduced to him.
Q. And when you say Mr. Jenkins, is that James Jenkins?
A. Yes, James Jenkins.
Q. And if you can speak up a little bit. I think the
jury is having trouble hearing you.
A. Sorry about that.
Q. Do you see that microphone in front of you?
A. I see it.
Q. I think that's as far as it goes. If you can just
enunciate into that microphone, I think everybody will be able
to hear you in the room as well.
I'm going to refer you back to the time period
in first quarter of 2010, in the March, April, May area. Do
you remember that period of time?
A. More than I want to, yes.
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KAREN D. DESHETLER, CSR281-723-9090
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Q. Okay. And was it in that period of time that you
first met Adrian Heath; or had you met him at some point
earlier?
A. I would have met Adrian, I believe, when I left the
county and moved up to Johnson County.
Q. So some time ago?
A. Sometime back, yes.
Q. And when you moved back, were you reintroduced to him
at some point?
A. At some point.
Q. And at this meeting that you mention at Mr. Jenkins'
house --
A. Business.
Q. Was it a business meeting?
A. The meeting we had or we ran into people in
Mr. Jenkins' business down in Harris County.
Q. Okay.
A. Not in anybody's home or on the street or anything
like that.
Q. So at Mr. Jenkins' place of business in Harris
County, you met Adrian Heath?
A. Yes.
Q. Okay. And was the idea of The Woodlands Road Utility
District and voting discussed?
A. That would have been the meeting in the time period
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KAREN D. DESHETLER, CSR281-723-9090
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you're talking about, yes. I received a call. It was going to
be a meeting at Jim's office that evening after work hours.
And I traveled down there to see what was going to be
happening.
Q. Okay. Well, first of all, where does Jim Jenkins
live?
A. He lives in -- I believe south of Grogans Mill Point,
on the south side The Woodlands golf community.
Q. Okay. Does Pastoral Pond sound right to you?
A. Yes.
Q. Okay. And we had been talking about meetings at the
office and that may not make sense to everyone. What are we
talking about when we say "meetings"?
A. General meetings, election coming up, candidate to
support. It was a complaint against an elected official, of
bond and campaign finance reports.
Q. Political meetings?
A. I wouldn't say political. If there was a candidate
that Jim felt that needed to be supported by, then those that
take up the banner to go out and canvas or campaign for that
candidate for office.
Q. Okay. Who was a part of this group that met?
A. Tom Curry, Jim Doyle, Bill Berntsen, Pete Goeddertz,
Adrian, and myself.
Q. Was Adrian Heath a regular part of this group or
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KAREN D. DESHETLER, CSR281-723-9090
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introduced for a reason at that point?
A. Adrian was never -- I never saw him, ran into him
that many times at Jim's office, because again, there was not
any set schedule of any, like, monthly meetings. We never had
those. So nothing going on there, then there was no meetings
unless you went by to say hi.
Q. Okay. Was this a group of friends that you met with?
A. I wouldn't call them friends. I mean, acquaintances,
maybe.
Q. Okay. You shared a common interest or what was it
that brought you together?
A. Probably the biggest thing was -- was the campaign
finance reports, politicians were neglectful in filling them
out so people could know what they were spending on.
Q. Okay. So what was it that got this group started to
with the idea to take over a road utility district?
A. That would be on a meeting that we're referring to.
Jim Doyle made a call to my residence, said there was going to
be a meeting. I said I'll see if I can be there. I showed up.
Mr. Doyle, Mr. Jenkins -- I'm not sure if I was the third one.
Total there was Bill Berntsen -- no, correction -- Pete
Goeddertz showed up and Tom Curry was there. Adrian was, I
believe, the last person that arrived when the meeting started.
Q. Okay. Whose idea was this whole RUD thing?
A. First I heard it from was when Adrian laid out what
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KAREN D. DESHETLER, CSR281-723-9090
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he had found about the RUD District Number 1 in The Woodlands
and laid out the scenario of the board and who were on it and
how it would be run.
Q. Okay. And whose idea was it to change the residency
to register to vote at a hotel and vote in that election?
A. That came after that meeting. That meeting was kind
of get the faces to get a feel, to kind of get the information
out. The meeting to meet or the idea floated to change your
place of residence to the hotel was at a later date.
Q. Okay. Now, you actually ran for a position on the
board; is that correct?
A. That's correct.
Q. What position was that?
A. President.
Q. And the other two positions were going to be filled
by whom?
A. Mr. Goeddertz and Mr. Berntsen.
Q. Mr. Goeddertz and Mr. Berntsen?
A. Uh-huh.
Q. Okay. What were the three of you going to do once
you took over the RUD?
A. The last statement they put out was get out as many
people you can to change their vote to people in the RUD, vote
in the RUD, and for us to be elected. First board meeting pay
off all the debt, turn out the lights, and close the thing
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KAREN D. DESHETLER, CSR281-723-9090
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down.
Q. So if you were elected to the Board of Directors, the
three of you together would do what exactly?
A. We would control the board and we could control the
vote to pay off any outstanding loans on it and shut it down.
Q. Okay. Now, what would happen afterward? How would
the roads be maintained in the road utility district in The
Woodlands if it was shut down?
A. It would be turned back to the county.
Q. Okay. And did you have any knowledge of how much it
cost to build and maintain roads and things like that, did you
and the two other candidates?
A. No.
Q. Okay. Did you have any understanding of bond issues
and raising capital?
A. No. It was strictly over the tax.
Q. And what was the main problem that you had with the
RUD?
A. I didn't have any problems with the RUD. I didn't
know anything about it until I started reading some and went to
a RUD board meeting. It was basically that the transportation
needs inside The Woodlands, roads, bridges. In hindsight, I
would say probably the flyaway was part of that, also, to get
the flyaway done off 45 into the parkway.
Q. Okay. So in terms of the idea to go ahead and change
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KAREN D. DESHETLER, CSR281-723-9090
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your address and vote in this election, did you have any qualms
about doing that?
A. After receiving a letter, yes, I had some qualms, I
had some questions. An opinion was formed that, you know,
there could be some issues about this. And at a get-together
not for the RUD board or anything else, there was a lot of us
present at that get-together. And one of the members brought
it up to an attorney here in the State of Texas and he did the
50/50, we don't know, but there could be consequences.
Q. So the group discussed whether or not there could be
consequences to what you were doing to this point; is that
right?
A. To the vote.
Q. And was there a consensus that there was a risk?
A. There was a -- like anything you talk, there was
like, well, there could be, there may not be, but you don't
know until after you're going. You can go forward or not going
forward.
Q. Do you recall filling out your change of address on
your voter registration application?
A. Yes.
Q. Do you recall attesting to that residence and
swearing to that fact under penalty of perjury?
A. Yes.
Q. Did that give you any qualms to do this?
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KAREN D. DESHETLER, CSR281-723-9090
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A. Again, it was played down by another attorney, that
it's a state of mind -- that it's a state of mind in Texas. If
you're planning to move to the panhandle of Texas sometime in
the future, then you can register that you're a resident in the
panhandle of Texas for voting.
Q. So the risk was present, but it was played down. Is
that correct?
A. I would say, yes, that's correct.
Q. Okay. Now, you said you received a -- well, actually
I'm going to move on to the -- after the election and there was
a challenge. Do you recall that?
A. Oh, yes.
Q. And at that point there was a -- was there a come
together -- kind of a come to Jesus with the group of what was
going on and what was going to have to be done?
A. It was called and we had a meeting at an attorney's
office about 6:00 after his office closed and the little
meeting room was packed with people.
MR. WRIGHT: Your Honor, if I can inquire as to
what time we're talking about, because I have to renew my
objection on remoteness from the date of the election.
MR. WHITE: I'll cover that.
THE COURT: Thank you.
Q. (BY MR. WHITE) And the time period here, was this
shortly after the election?
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KAREN D. DESHETLER, CSR281-723-9090
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A. Yes.
Q. Now, the purpose of your group with this whole thing,
with the whole voting thing was to do what?
A. The whole group, I couldn't say.
Q. And I'm sorry, I'm not asking you to read anyone's
mind. But the purpose of this group was to take over the RUD?
A. Correct.
Q. Okay. And after the ten voted on May 8, 2010, the
three candidates that came out with the most votes were whom?
A. The three of us, myself, Mr. Goeddertz and
Mr. Berntsen.
Q. Okay. And when did you learn that there was going to
be a challenge to that vote?
A. It was the next RUD board meeting when they were
supposed to canvas the votes. It was held at 24 Waterway in
the executive offices of The Woodlands Land Development
Company.
Q. And what did you learn at that meeting?
A. Basically we were told we were going to canvas the
vote, we would be -- basically there would be new board
members. They challenged it that day with the documents and
they did not canvas the vote, so basically that was when it
became evident that there had been a lawsuit filed.
Q. Okay. And what did your group do in response to that
news?
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KAREN D. DESHETLER, CSR281-723-9090
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A. I believe that in a day or two, we were at an
attorney's office and were basically told you're going to
court.
Q. Okay. And the records seem to reflect that your
group -- some of the members of your group rented additional
rooms at the Residence Inn during that time period. Is that a
fair statement?
MR. WRIGHT: Your Honor, I'm going to object to
the question about doing anything beyond the date of the canvas
because that does not show the state of mind of my client or
any of these other people, for that matter, before and up to
the date they actually cast their vote. I think it's too
remote and it's not relevant.
THE COURT: Overruled.
Q. (BY MR. WHITE) You can answer the question if you
remember what it was?
A. Please restate it.
Q. Okay. Were there additional rooms rented at the
Residence Inn during this election challenge?
A. I know there were two rooms rented. On the day of
the election, there was a room or two rooms rented.
Q. Okay.
A. I was out of town. I was out of county.
Q. Okay.
A. Came in that night and voted.
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KAREN D. DESHETLER, CSR281-723-9090
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Q. Okay. And let's go ahead and jump back to the day of
the election. You know one or two rooms being rented?
A. That was what I had learned. I was not -- like I
said, I was not in the room or in the hotel. Basically I drove
to the hotel and Mr. Jenkins met me at the front door. I went
in and changed and then basically he rode with me to vote.
Q. Okay. Now, of those two rooms that were rented, you
didn't stay in either one that night is that what you're
testifying?
A. No.
Q. And the first night you stayed in the Residence Inn
overnight was when?
A. Never.
Q. Yet, you did go back to the Residence Inn, didn't
you?
A. Yes.
Q. And what did you do there?
A. Showed up for breakfast, stayed in the little area
they had for food and stuff and visited with others who were
there that morning. A couple of times came back in the evening
time. Stopped in for a while. Made my appearance and went
home.
Q. Who else was there?
A. It varied from night to night. I know there was a
challenge to the --
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KAREN D. DESHETLER, CSR281-723-9090
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Q. Could you repeat?
THE COURT: It varied from night to night.
Go ahead.
Q. (BY MR. WHITE) After varies from night to night, go
ahead.
A. I mean, I had things to do at home; so this was all
just a show. I know after an attorney chastised Mr. Jenkins,
there were more rooms rented than two. I know Mr. Goeddertz
paid for a room. Tom Curry, I think even his wife were renting
rooms on Friday, Saturday, and Sunday. So it was -- I know I
went there one evening and dropped off in the Allison boys'
rooms some clothes and put them in the closet and left.
Q. Just dropped your clothes off in the room and left?
A. Uh-huh.
Q. And what was the purpose of that?
A. Show presence that you've been in the hotel, no
matter if you weren't the one renting the room. The same one
also was see you at breakfast. The cameras and pictures being
taken. Make sure the newspaper was being displayed. You could
see the front page of what was on the Conroe Courier and the
Houston Chronicle, having mailed forwarded to and held at the
front desk so you could go show your face and collect your
mail.
Q. What was the purpose of all that?
A. Giving the impression you were living in the hotel.
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KAREN D. DESHETLER, CSR281-723-9090
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You had mail being delivered there. You had clothes there.
You were coming and going.
Q. And all of this that you're saying, was that after
the vote?
A. After.
Q. And prior to that vote, had any of those things
happened?
A. From what I learned since, I was there that night
they had two rooms with ten people listed that were staying
there the night. Two of them were women and two of the women
were married.
Q. And those women were whom?
A. Mr. Doyle's -- Sybil Doyle and I do not know his
daughter's name, her married name that is.
Q. But his daughter is Roberta Cook, is that her name?
A. Roberta.
Q. Okay. So his wife and daughter were the two women?
A. Yes.
MR. WHITE: If I may approach the exhibits.
THE COURT: All right.
Q. (BY MR. WHITE) I want to show you, Mr. McDuffee,
some photographs starting with this one right here.
Where was that photograph taken?
A. That would be at the Residence Inn on Six Pines.
Q. Okay. Can you identify the individuals?
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A. Jim Doyle is the gentleman in the white shirt. I
mean, Jim Jenkins is in the white shirt. Jim Doyle is across
from him, the black shirt. Mr. Heath is sitting past
Mr. Doyle. And it's a little hard, but it appears to be the
other gentleman at the table is Tom Curry.
Q. Okay. And was this a posed photo?
A. It looks to be -- I don't see any food plates or
anything else. It was get as many people's faces in the camera
shot as you can get.
Q. Okay. And this just reverse angle?
A. Correct.
Q. Okay. Who's this young man here?
A. That is myself there doing some paperwork.
Q. Okay. You seem to be examining a document over here.
Do you remember what that is?
A. It's probably back in those days, one of my client's
files or may have been even one of my own family member's files
of security work.
Q. Okay. You did financial work?
A. I did mutual funds and such investments.
Q. Okay. Is this you, again, right here?
A. Correct.
Q. And I don't know if you can tell on this document
what it is, but what was the purpose of holding up this
document?
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KAREN D. DESHETLER, CSR281-723-9090
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A. Probably had somebody's name or a date on it, a
letterhead. This could have been some paperwork I got from the
company to review or read and refresh my memory on. This is
just a prop. I pulled it out of the file cabinet.
Q. Tell us about Tom Curry back here?
A. Mr. Curry is deliberately holding up an envelope he
mailed to the Residence Inn showing his name and the address at
the Residence Inn on Six Pines.
Q. Okay. And who is this individual who seems intrigued
with the newspaper?
A. This is Bill Berntsen. And I basically of all the
group probably had the least connection with Mr. Berntsen.
Q. Okay. So photos like this, what was going on when
these were taken?
A. It was basically you run around or move around and
take pictures and get as many faces, again, in the picture.
The Allisons are here. That's Mr. Jenkins in the blue shirt.
The front one here is washed out. I couldn't identify who that
would be. But it was part of the intervenor of the voters.
Q. Is this one of the newspaper shots you were talking
about?
A. Correct.
Q. I want to talk about you holding your business papers
specifically. Was there a reason that you were trying to make
a connection between your business, your work, and the road
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KAREN D. DESHETLER, CSR281-723-9090
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utility district?
A. Yes. I mean, I had all kinds of fliers and brochures
I would carry with me, pamphlets I could pass out. Letters
from the company to read over as far as new products that were
going to be offered.
Q. Okay. Let me take a jump back out. What was the
reason -- what was the real reason --
A. It was a prop.
Q. -- for -- I'm sorry. Let me jump way back out.
A. Okay.
Q. What was the real reason for changing your address to
9333 Six Pines?
A. Because of the RUD voting.
Q. Okay. At some point, did the group decide that the
reason of voting in the RUD was not enough?
A. I don't --
THE COURT: You understand that question, sir?
MR. WHITE: Let me rephrase it. Because I don't
think anyone understands it.
Q. (BY MR. WHITE) Did the group determine that there
was a need for -- another reason besides voting in the RUD to
move to the hotel?
A. The group did not decide that, no.
Q. Okay.
A. That was a called meeting at a lawyer's office to
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KAREN D. DESHETLER, CSR281-723-9090
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show upon a Saturday morning without any air conditioning,
thank you for not paying for it, and to come prepared with a
reason why you would change your address to the Residence Inn.
Q. And what was your reason?
A. Since I was in finance and health insurance and other
things, I needed to be closer in to where there were more
clients I could talk with, drop off a business card with, or a
pamphlet with. I had six different lines of things I could
offer to a potential client.
Q. So instead of staying at home in Spring with your
wife or your family, you would stay at the Residence Inn. That
would be the reason?
A. Quicker access to the public.
Q. Was that true?
A. No.
Q. In the slightest, was that true?
A. No.
Q. Okay. Do you recall any of the other nonpolitical
reasons for any of the other individuals in your group?
A. The -- they were all pretty lame. I mean,
Mr. Jenkins' excuse is he needed to get away from wife and
grandkids so he could work on his programming. Mr. Curry here,
he's self-employed, had his own company repairing stuff and
he -- that was his excuse. The Allison boys were both young
men and they were living at home with family with their younger
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KAREN D. DESHETLER, CSR281-723-9090
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siblings. So only makes sense that they wanted to be out on
their own. I will report that mine was the weakest of all the
stories. I was told to go home and break it up.
Q. Okay. Now, did you understand that residence doesn't
mean a place that you go to get away for a little while.
Residence means domicile, one's home, a fixed place of
habitation to which one intends to return after any temporary
absence. Did you understand that?
A. Yes, I understand that.
Q. You understand that now as you sit there?
A. Yes.
Q. And was the Residence Inn in any way, shape or form a
residence to the definition in the election code? Was it a
residence to you?
A. No.
Q. Is that hotel a place that this group returned to?
A. We made a presence there. The Allison boys actually
rented a room and they were staying there on a fairly regular
basis. The Currys did rent a room. Like I say, Friday
Saturday and Sunday, you got a deal. You got three for two,
but none of the rest of us.
Q. And then after that, after those rooms had been
rented and then after this legal matter had been resolved,
where did everybody go?
A. Back to their original domiciles.
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Q. Now, did you have some personal reasons why you
didn't make more of a presence at the Residence Inn in terms of
maybe sleeping nights there?
A. I had too many -- I had too many responsibilities at
home from daylight to basically evening time to take care of.
My wife is a CPA, she's a controller for a family-owned
corporation, so she works long hours. Daughter was in junior
high and I was her means of getting to and from school after
practices and such. I was basically the one who had freedom to
come and go.
Q. That sounds like you had responsibilities to your
family at home?
A. Oh, yes.
Q. Now, after the whole election was done, the whole
civil matter was resolved, did you understand and learn at some
point that there was a criminal investigation?
A. Yes.
Q. And did you receive a call inviting you to testify at
Grand Jury?
A. I received a call that I could come and testify for a
Grand Jury, yes.
Q. And what was your response to that invitation?
A. I was there on time and ready to testify.
Q. Were you promised anything for you to appear and
testify at Grand Jury?
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KAREN D. DESHETLER, CSR281-723-9090
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A. No.
Q. What was your expectation going into it?
A. To get this off my chest, to move on with it, and
quit hiding behind shadows and little question marks and to
finally bring it out and be done.
Q. And did you, in fact, testify at that Grand Jury?
A. Yes, I did.
Q. And as you sit here today, are you under indictment
for the charge of illegal voting in the 2010 election?
A. I have never been served that I was under indictment,
no.
Q. Okay. Have you ever been arrested?
A. No.
Q. And was that a result of an agreement you had in
exchange for your testimony at Grand Jury?
A. I had no qualms to go testify and be done with it.
Get it in the open. Sunlight.
MR. WHITE: Pass the witness.
MR. WRIGHT: If I may, Your Honor. I have a few
questions.
CROSS-EXAMINATION
BY MR. WRIGHT:
Q. Well, obviously you were not indicted because you
agreed to come testify at the Grand Jury, right?
A. I was informed there was going to be a Grand Jury and
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KAREN D. DESHETLER, CSR281-723-9090
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that if I wanted to come and testify, I was to come and
testify. And I showed up an hour and a half before time on a
rainy, bleak day and was ready and willing to tell them just as
I'm talking to you.
Q. So just by coincidence, then, they were all indicted
and you weren't; is that right?
A. The bottom line is I called several of the other
intervenors, as we were called, and tried to convince them to
come down and testify, get it over with, move on. And I can't
go through names, but it was several of the -- several of them.
But every one of them had been reached by somebody else and
basically I became the target on my back because I had
testified.
Q. So they circled the wagons against you, is that
right, after that?
A. That was the impression I got when I talked with some
of them later, if they would talk to me, that it was my idea.
They made me the ring leader.
Q. I want to go back to the beginning of your testimony,
and I got a few questions. I appreciate you being here.
Do you recall ever meeting with my client, with
Adrian Heath at a library in The Woodlands, the main library?
A. There were meetings in The Woodlands library that I
attended some, but I never kept a dossier of who was there and
who wasn't there.
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KAREN D. DESHETLER, CSR281-723-9090
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Q. Okay. Were those really called by Jim Jenkins as far
as the Republican leadership committee or council, the RLC? Do
you remember that?
A. I went to meetings. I never considered myself a part
of it.
Q. Okay.
A. I was more -- the RLC, if I remember right, was way
back when I ran for precinct chair in the '80s, '90s --
Q. Okay. And that group was established by Jim Jenkins
and so the people that were still meeting with Jim Jenkins had
been kind of related to that group, right?
A. People came and went. I mean, I left the county for
three years.
Q. Okay. So you do remember a meeting with -- a meeting
where Adrian was there at the Montgomery County library in The
Woodlands?
A. I can't deny it.
Q. Okay. Now, what was it that -- okay. I'm going to
focus on two things. Before the election versus what was said
after the election. Okay. So I'm going to talk to you about
before the election. Okay?
You said you first found out about the RUD
district at a meeting at Jim Jenkins' office?
A. Correct.
Q. Okay. And so what were you -- what were you told
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KAREN D. DESHETLER, CSR281-723-9090
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about that?
A. From what I could recall Mr. -- I saw him earlier --
called me and said there was a big meeting, that Mr. Heath had
found something out in The Woodlands and come on down for the
meeting. So I arrived at Mr. Jenkins' office. I had no clue.
Q. What did you -- what did you learn there? What was
put into your mind in that meeting? Something had to be done.
A. Basically it was a little hard to catch on because
Mr. Heath came in, made -- about the RUD board, which I
couldn't give you all the details of even what he said that
night. Mr. Jenkins took over and the two of them had an issue.
And best as I remember, Mr. Heath left, Mr. Goeddertz got up
and made a comment to Mr. Jenkins, that he didn't think it was
proper and he left. And a short time after that, I wandered
out the front door. There was not any definite plans. It was
just like this is a RUD board.
MR. WRIGHT: If I may approach the Elmo, Your
Honor.
Q. (BY MR. WRIGHT) Do you see this Defendant's
Exhibit 31. It's called -- entitled Application for Tax
Abatement for Montgomery County. Can you read that?
A. Yes.
Q. Okay. And do you recall learning about that time
about this tax abatement that the Laukiens had on their
property inside the RUD?
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KAREN D. DESHETLER, CSR281-723-9090
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A. What timeframe are we talking?
Q. About -- at this meeting about -- is this some of the
stuff that's going on at the RUD that you were informed of in
that first meeting?
A. I cannot say that because that evening it was a very
short meeting. As far as any paperworks, there was nothing
that was handed out. These meetings, they were orally. We
didn't have a handouts about here's the agenda for the meeting
tonight.
Q. Well, did you then follow up, based on what you
learned in the meeting, and discover a problem or what you
seemed to be a problem with the abatement for the Laukiens, a
tax abatement?
A. Where I got the first clue about it, I can't tell
you.
Q. Okay.
A. What sparked my interest was a witness in the civil
trial and the last comment he made leaving the witness stand
and he made a comment that his brother-in-law, Mr. Laukien,
that the building in question was --
Q. Excuse me. But I'm asking you about what happened
before the election. Are you talking about something that
happened after the election?
A. This was after the election when I discovered -- when
I went and did my own investigation.
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KAREN D. DESHETLER, CSR281-723-9090
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Q. Okay.
A. Before the election, there was not any investigation
on me.
Q. Oh, okay. Okay. Well, so that's what I'm trying to
get at. What was in your mind before the election where you
decided to put your name on the ballot to run and then change
your registration?
A. Where I got this part of the information, I cannot
state affirmatively that this gentleman and his wife were the
only two by the court ruled to be registered voters. Now, that
was -- refresh my memory. So I'm not trying to talk around it.
I believe Mr. Heath, he went and found by a simple search that
there was six other residents of Texas residing inside the RUD
board. But they had determined, including their lawyer -- this
is the RUD lawyer -- that since it was strictly commercial,
there could be no permanent residence in the RUD and that
somebody could vote in it.
Q. Okay. So that is the information that you were told
by who? By Adrian? Who told you that?
A. I'm truly trying to remember. But the only meeting I
remember being with Adrian was at Jim's office on that evening
and the residential information would have come up via Jim at
his office.
Q. All right. What I'm trying to get at for this jury
because Adrian is the one on trial here --
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KAREN D. DESHETLER, CSR281-723-9090
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A. Okay.
Q. -- is what did Adrian say to you that you can
remember and tell this jury to show what he was thinking about
this RUD district and changing your registration and things
like that?
A. I'm trying to answer and not be answering knowing
only half truths. Who did the research at the county tax voter
registration is the person who brought the information.
Q. Okay.
A. And I do not believe it was Jim. So I'm going to
leave it there. I cannot answer any further than that.
Q. Okay. Well, so what you're remembering, I know it's
been a long time, three years or more, you know. So what you
had learned was the road district was being operated and they
said, we don't have elections because there's no voters and
somebody, you don't remember who it was, came up with a list
and said, hey, there's a bunch of voters, there's six or eight
voters and so they ought to have an election, right? Is that
the gist of, like, the first meeting?
A. That was brought up to -- from what I remember, their
attorney and they did a search and they decided they were going
to have to spend the money and have an election.
Q. Okay.
A. And that was when it was put on the ballot.
Q. But you didn't talk to their attorney yourself,
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KAREN D. DESHETLER, CSR281-723-9090
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right?
A. No. I saw, you know, the list of people who were at
Jim's office, their voter cards, and they were all in that
district.
Q. But somebody told you that the RUD attorney had
looked into it and found out now they had to hold an election?
A. When it became evident, yes. There were actually
residents residing.
Q. Do you think it's possible that Adrian is the one
that told you that?
A. I can't answer that forthright because Adrian and I
probably have only had in person, in all the times, the first
time I met Adrian, I'm going say maybe 12 times we crossed
paths.
Q. Okay. So going back to before the election now, you
said you talked to an attorney about doing this?
A. An attorney we had campaigned for did not get elected
as a judgeship and he had kind of a thank you party.
Q. Who was that?
A. Names and me do not stick together.
Q. I know the feeling.
A. You can probably tell me. He's on the Texas Supreme
Court now.
Q. Oh, John --
A. John Devine.
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KAREN D. DESHETLER, CSR281-723-9090
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Q. John Devine, yes.
Okay. You had a meeting or at least talked to
John Devine?
A. It was a party at his house thanking those who got
out and walked the parking lots and passed out fliers, this,
that, and the other. And by that time, each one of us had
received a letter from the attorney's office.
Q. Okay. Who was that letter from?
A. Phil Grant, the first assistant district attorney.
Q. You knew who he was at the point? He was the first
assistant DA; is that right?
A. Yes.
Q. Okay. So what did that letter say?
A. Basically cautioning us that voting in the election,
there could be criminal charges, civil trial. I don't remember
all the details, but it was basically saying you're under the
microscope. We're watching.
Q. Okay. And so did you discuss the letter that you got
from Phil Grant, did you discuss that with Judge Devine?
A. No.
Q. It came after?
A. I was eavesdropping on a conversation he was having
with two of the other potential voters.
Q. Were they discussing the DA letter?
A. They had brought the letter and had handed it to him.
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KAREN D. DESHETLER, CSR281-723-9090
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He read the letter, and I was close enough to kind of listen
in.
Q. That was at the party, right?
Okay. So then at that point, when you saw the
letter, had you already filed to run for the office? Do you
remember when you filed to run?
A. Yes, I remember because I was at Jim Jenkins' office.
MR. WRIGHT: Okay. If I can approach,
Mr. McDuffee.
Q. (BY MR. WRIGHT) I'll show you State's Exhibit
Number 2. That's an application for a place on the ballot?
A. Yeah. I haven't seen it in a long time.
Q. And you haven't seen this in a long time, right?
A. No.
Q. Does that refresh your recollection that on March
the 3rd, 2010, you signed saying I'm going run for a place on
the May 8 election?
A. Right.
Q. Okay. And so was that -- a decision to fill that
form out, was that made after you talked to Judge Devine and
got the letter from the DA or before you talked to the Judge
and got the letter from the DA?
A. That would have been before. I mean, the sign -- the
signing of that. That would have been before the party.
Q. All right. So you made a decision to go sign up and
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KAREN D. DESHETLER, CSR281-723-9090
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run for that board before you even talked to Judge Devine about
it?
A. If my memory is correct, the letter came out after
the election that month. There was a --
Q. Let me see if I can get a copy of this here and I'll
show you.
I want to show you what's been premarked as
Defendant's Exhibit Number 26, and ask if you can identify what
that is a copy of.
A. Yes, it was before -- this letter was before the
letter where I sent in the application to be president of the
RUD board. This is April. I'm sorry. I'm getting a little
nervous.
Q. That's okay. You're not a professional. Don't
worry.
So is this -- well, do this first.
Is this a true and correct copy of the letter
that you testified about from Phil Grant --
A. Correct.
Q. Okay. Who works for Brett Ligon, the district
attorney, at the time.
A. Still is.
Q. Right.
A. As far as I know, yeah.
Q. And that was received by you sometime shortly after
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KAREN D. DESHETLER, CSR281-723-9090
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April 23rd, 2010?
A. Right.
Q. Is that correct?
A. Correct.
Q. Then if I --
MR. WRIGHT: Well, I tender a copy of
Defendant's Exhibit 26 for counsel for review. I ask that it
be admitted in the case.
MR. WHITE: Can I take the witness on brief voir
dire?
THE COURT: All right.
VOIR DIRE EXAMINATION
BY MR. WHITE:
Q. Mr. McDuffee, I'm taking a look at the Defendant's
Exhibit 26. Is this the letter that was sent to you?
A. This looks like a true representation of the letter
that I -- that all of us received.
Q. Okay. In this black box here, is that where an
address would have been?
A. Yes.
Q. Okay. And this would have been the letter sent to
you, but you couldn't say whether or not this was the actual
letter that you received?
A. Just the body of it. I mean, First Assistant Phil
Grant, district attorney's office. And it discusses what I
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KAREN D. DESHETLER, CSR281-723-9090
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remember in the paragraph, the first paragraph there. The
district attorney's office and they received an official
complaint about it, alleging fraudulent voter registration.
THE COURT: Can you repeat the last sentence?
THE WITNESS: The letter is from the district
attorney's office and it is in receipt of an official complaint
alleging fraudulent voter registration within The Woodlands RUD
utility district. It says for the upcoming election schedule
of May 8th.
Q. (BY MR. WHITE) And does this letter appear to you be
altered in any other way besides the address box?
A. No.
MR. WHITE: Your Honor, technically this
document is hearsay. That would be the only issue we have with
it.
THE COURT: Well, it is, isn't it?
MR. WRIGHT: It is, but we're not offering it
for the truth of the matter asserted. We're going to show the
state of mind. They were asking him what was he thinking when
he did this; and this is one of the items he said he had
information on, the letter from the DA. So I'm trying to
produce that and help refresh his recollection, also. Show his
state of mind.
MR. WHITE: I think the timeframe may be off on
that, but he could just ask the witness what his state of mind
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was after receiving the letter. That would be fine.
THE COURT: All right. Any other response to
the hearsay objection.
MR. WRIGHT: Well, it's not hearsay. Like I
say, we're not offering it for the truth of the matter
asserted. We're going to show the state of mind of this
witness and, frankly, it's going to come up with the other
witnesses and even my client. So it's central to this case, I
think.
THE COURT: Answer?
MR. WHITE: The state of mind of this voter,
this voter registered well prior to the date of receiving this
letter. So he made his mind up to act prior to receiving this
document. It is hearsay. I don't mind if he asks the witness
what his state of mind was after receiving the letter. I
wouldn't mind that at all.
MR. WRIGHT: He voted after receiving the
letter. So it goes to his state that -- and what the charge
here is illegal voting. And it's that May 8 vote that's on
trial.
THE COURT: All right. But I guess that would
be all well and good if Mr. McDuffee was the guy charged with
this crime right now, but that's not what we're talking about.
We're talk about that Defendant. So what's the point for this
Defendant? I mean --
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KAREN D. DESHETLER, CSR281-723-9090
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MR. WRIGHT: He's objecting.
THE COURT: Not the other 6 billion people on
the planet, but that man.
MR. WRIGHT: My point is, this has come up now
because they asked him basically what he was thinking when he
did all this. And I think that opened the door.
THE COURT: Objection for hearsay is sustained
if we're just talking about this witness and his state of mind.
Because he can't answer that question without having to have a
hearsay document admitted. But again, let's keep our eye on
the ball and we're talking about a crime charged with the
Defendant. Okay? Let's focus on that. Keep our eye on the
ball there. Thank you. But the objection is sustained for
hearsay.
CROSS-EXAMINATION (Continued)
BY MR. WRIGHT:
Q. Did that refresh your recollection of the letter that
you testified that you got from the DA -- from Phil Grant?
A. It appears to be the letter I received.
Q. Okay. And did you talk to Adrian after you got this
letter?
A. The night the letter was discussed at the
after-election party for those who worked on it, I do not
believe Mr. Heath was present. There was no general discussion
of it during the meeting. It was a party thanking us for
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KAREN D. DESHETLER, CSR281-723-9090
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getting out and trying to get him elected. It wasn't for
campaigning for the next election, for the election coming up
on the RUD board and the other issues involved that same
election day.
Q. Okay. And if we go to -- hang on a second. I want
to show you what is already admitted as State's Exhibit
Number 7. Get it right up here close.
Is that a true and correct copy of your voter
registration on April the 5th of 2010?
A. Yes.
Q. And so you had already -- and was this a change of
your voter registration or was this the first time you
registered?
A. This would have been the change. This is the
residence here, mailing address, residence here. That would
have been the change there.
Q. Okay. And so you had been voting before from another
address; is that right?
A. Hansons Court, yes.
Q. So then you changed it to Six Pines on April the 5th
of 2010. Okay. And then you got this letter around
April 22nd, 23rd, right?
A. Correct.
Q. And then you went ahead and you voted anyway? You
voted on May the 8th, anyway; is that correct?
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A. Yes. We all did.
Q. Okay. That's what I'm trying to get at. So did you
cast your vote, then, on May the 8th after you had seen this
letter and things like that based on what my client -- what
Adrian told you?
A. On the voting or on the information about the RUD?
Q. The voting. Did you cast your vote based on what
Adrian told you?
A. I'm trying to get an answer for the Court and the
ladies and gentlemen. Once we had changed our address and said
we were at Six Pines, we already agreed that we were going to
vote mentally.
Q. Well, let me go further down the road. Okay? You
had said in your testimony that you talked to a lawyer who
said, well, it could be 50/50 to go register at the hotel and
vote from there. Is that what you said earlier this afternoon?
A. I didn't talk to the attorney.
Q. Okay.
A. It was the Allison family who brought the letter,
presented it to the attorney, and he was reading it over. He
was not reading it to me.
Q. Okay.
A. And I was picking up their conversation, so it was
not directly to me.
Q. Okay. Well, was this Judge Devine?
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A. This was Judge Devine. That was the only attorney
that --
Q. Okay. You said that you had some concerns -- I'm
sorry -- you said there was a consensus about that you could go
ahead and do this. Did I understand your right?
A. There was never any consensus on anything that this
group did. You either did it or you didn't. There was no will
you sign a contract, you're going to sign here. The
cheerleader would have been Mr. Jenkins.
Q. Okay. So then -- so wasn't really a consensus, but
you went and did it anyway, right?
A. I did.
Q. Okay. I think you also said that there was another
attorney who played it down when he or she was told about?
A. That would be I heard from Mr. Jenkins an attorney
that he had been associated for several years played it down.
Q. Did they give you a name of the attorney?
A. I would have to assume it was the only attorney I had
known that Mr. Jenkins ever used, Mr. -- attorney Eric Yollick.
Q. Eric Yollick. Okay.
But you didn't talk about before you made the
vote to Eric Yollick yourself, right?
A. No.
Q. Okay. Now, was the belief that you had formed when
you filled out that voter registration at the hotel and you
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KAREN D. DESHETLER, CSR281-723-9090
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went and voted on May the 8th, had you formed the belief that
it was legal to do that?
MR. WHITE: Objection; relevance to his belief.
THE COURT: Again, Mr. Heath is the one charged
with the crime, right, and that we're here today for? So
what's the relevance here for that question for this trial.
MR. WRIGHT: They had opened the door to this by
asking him what he is thinking so I was just delving into what
his state of mind when he goes and does this.
THE COURT: Okay. Any response?
MR. WHITE: I would say it seems that we're
covering the same material over and over again now.
THE COURT: Again, the jury is going to be
voting on what the Defendant's -- whether the Defendant knew
that he was either eligible or not eligible to vote. That's
the key. And the objection is sustained.
Next question, please.
Q. (BY MR. WRIGHT) Okay. Then I want to go to the time
after the election. Okay. I think you testified you went
after the election to The Woodlands Land Development Company
offices in their building and that's where they were canvassing
the vote and you thought you would get sworn in, I guess, as
the president of the board, right?
A. That was the assumption, yes.
Q. All right. And then you found out, no, there is a
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KAREN D. DESHETLER, CSR281-723-9090
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challenge going on, everybody go home?
A. Right.
Q. Okay. And then later you testified that somebody
told you to go and rent the hotel rooms again or go stay at the
hotel again. Who was that?
A. Again, it came through Mr. Jenkins and I assume,
again, through Mr. Yollick.
Q. So he says, Eric says you got to go back to the hotel
or how did it come out?
A. It basically was we're in hot water and we got to
make a bigger presence at Residence Inn.
Q. All right.
A. And there had to be more than two rooms rented for
20 people --
Q. Okay. Now --
A. -- for ten people.
Q. All right. Now, did that surprise you when he told
you that after the election?
A. I wouldn't say it surprised me because we already
knew we were going to court.
Q. I'm talking about, did you -- you didn't expect that
before the election, right? You thought, well, we just go do
this, register, and then you went and voted. And then after
you found out it was being contested, it was like, oh, well, we
may be in hot water. That was news to you, wasn't it?
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A. The news was when we went to Mr. Yollick's office and
we're hit with this at 6:00 in the evening. I mean, myself and
all the rest of those who voted were there present or their
representative there present. Jim Doyle was there for his wife
and daughter. They were not present.
Q. Okay. All right. So what I'm getting at is before
the election, you were getting advice through other people,
overhearing lawyers, judges talk that it's okay to go do this.
After the election, you're getting advice from, I guess,
Mr. Yollick through Mr. Jenkins, oh, you're in hot water. You
can't did that, right?
A. It wasn't like afterwards you couldn't do this. It
was, like, okay, it's done and this is what we got to do to
cover.
Q. Okay.
A. Make the story plausible.
Q. Then did you believe you were committing a felony
when you went and cast that vote on May the 8th?
A. No.
Q. Okay. Who told you to drop clothes off at the hotel?
A. Could not say definitely who did.
Q. Okay. Who told you to go take pictures or sit in
pictures with the newspaper up? Who told you that do all that?
A. Again, I cannot say definitely who said it. I could
guess, but I'm not going to be guessing. But we were to make
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KAREN D. DESHETLER, CSR281-723-9090
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our presence known. Pictures, breakfast, playing basketball,
bringing your grandkids up and playing at the swimming pool.
Anything to do to give the appearance that we were coming and
going at the Residence Inn.
Q. Okay. But you can't tell this jury who told you to
do that or that you had to do that?
A. After the first court case, it was Mr. Yollick
picking it up that we had to make a bigger presence doing
things at the hotel.
Q. And is that when he had you make up the story about
why you were living at the Residence Inn and he told you your
story was not good enough, you had to beef it up or something?
A. That was after we lost the first trial, yes.
Q. Okay. So it was Mr. Yollick who told you that you
needed to work on your story of why you were there; is that
right?
A. The comments were that mine was the weakest of all
the group.
Q. Okay. And so did you then come to believe that was
actually pretty stupid advice to go back and try to stay at the
hotel and take clothes over there?
A. When you're in a sinking boat, you do everything you
can to keep the boat afloat, no matter how stinky the boat is.
Q. So your mental state about voting in that election
was definitely different afterwards when all this challenge
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comes up and you start talking to Mr. Yollick or Mr. Jenkins
about this. It was very different than what your state of mind
was before you cast the vote, right?
A. Well, before you lose the court case, you kind of
think you might float the boat by; but afterwards you know
about the boat is sinking.
Q. Okay.
MR. WRIGHT: That's all the questions I have for
this witness, Your Honor. I pass the witness.
REDIRECT EXAMINATION
BY MR. WHITE:
Q. Mr. McDuffee, Mr. Wright asked you whether it was
news to you that you were in hot water and suggested that
several prominent people, attorneys perhaps, judges, told you
that it's okay to go do this. Did anybody -- did any judge or
figure, any official tell you it's okay to go do this?
A. No.
Q. Did any official even suggest that it's okay to go do
this?
A. No.
Q. The letter from Phil Grant, how did you interpret
that letter?
A. I want to keep the answer simple. It's kind of like
a shot across the bow. You kind of start wondering. Your
intentions.
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KAREN D. DESHETLER, CSR281-723-9090
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Q. Were you more secure or less secure in what you were
doing after reading that letter?
A. Less.
Q. And did you overhear, as Mr. Wright questioned you
about, a conversation regarding that letter with John Devine?
A. I overheard him, parts of the conversation he was
having.
Q. Okay. What was your takeaway from that conversation?
A. Again, it was, you know, you're kind of playing with
fire and you don't know who started the fire. In other words,
is it going to be a little birthday candle or is it going to be
a blazing building.
Q. Now, are you sure that he said that and he didn't say
it's okay to go do this?
A. He never said it was okay. He indicated it depended
on who was behind it, who initiated it as to how much it could
come back.
Q. Based on what you overheard, did you believe that you
could be prosecuted?
A. I felt on whoever was the moving force behind it to
begin with had to be connected. How did they get the
information so quickly. Who put them on to the accusation so
fast.
Q. Did you believe you could be prosecuted based on what
you heard?
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KAREN D. DESHETLER, CSR281-723-9090
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A. It was always there, but you kind of downplay it when
you're with the group. You know, you don't want to be the one
that didn't vote.
Q. After reading that Phil Grant letter, did you
consider after reading the legal voting statute, did you
consider the possibility that you could be prosecuted?
A. To an extent, yes. Unfortunately, I had the herd
mentality of people that heard the evidence, staying with the
herd.
MR. WHITE: No further questions.
RECROSS-EXAMINATION
BY MR. WRIGHT:
Q. Didn't Phil Grant say to you this is for
informational purposes only?
MR. WHITE: Objection, Your Honor. Hearsay. He
is just reading from the statement.
THE COURT: Sustained.
You can ask him what his perception is.
Q. (BY MR. WRIGHT) What -- what did you perceive --
well, let me ask it -- let me ask it this, you've been asked
this question by the State. Did anybody come to you, anybody
in authority, and tell you you cannot vote on May the 8th in
that election that you registered to vote? You cannot legally
do that?
A. No one came to me pointblank and said you cannot
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KAREN D. DESHETLER, CSR281-723-9090
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vote, because I did vote for the college bond. The college had
some bond issues at the same day at a different location.
Q. Okay. And so you voted in two elections that day
from the Residence Inn as your voting place?
A. Well, the Residence Inn, that vote was for the -- the
card said that it was a countywide vote for the Lone Star.
Q. Okay.
A. It was open to any county resident.
Q. Right. So you voted in two elections on that
May 8th?
A. Correct.
Q. At the Six Pines address?
A. Yes.
Q. The hotel address?
A. Yes.
MR. WRIGHT: Okay. Thank you. I pass the
witness.
THE COURT: Anything else?
MR. WHITE: No further questions.
THE COURT: May this man be excused?
MR. WHITE: Yes, Your Honor.
THE COURT: You're excused, sir.
Ladies and gentlemen, let's just take like a
five-minute break here and try to see how much we can do today.
Relax, stretch your legs, refresh yourself. Thank you. We'll
TAB E
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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(SHORT BREAK TAKEN)
THE COURT: State call your next witness.
MR. WHITE: The State calls Richard McDuffee.
THE COURT: Sir, please raise your right hand.
(WITNESS SWORN)
THE COURT: Please have a seat. Thank you.
RICHARD MCDUFFEE,
having been first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. WHITE:
Q. Good afternoon, Mr. McDuffee.
A. Good afternoon.
Q. Please introduce yourself to the jury.
A. Richard McDuffee. Spring, Texas, is my residence.
Lived in the county for about five years now again. My second
time.
Q. And do you go by Richard or...
A. Most people call me Rick.
Q. Okay. Could you spell your last name for the court
reporter?
A. M-C-D-U-F-F-E-E.
Q. Mr. McDuffee, you were just telling us about how long
you've been a member of the community. What was that again?
A. Approximately five years. We were in the county for
seven years and left for three to North Texas and moved back
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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about five years.
Q. And where do you live, sir?
A. I live at 27907 Hansons Court, Spring, Texas 77386.
Q. Is that in a subdivision?
A. That's in the subdivision of Benders Landing Estates.
Q. Okay. Be sure you speak up and annunciate so
everyone can hear you and the court reporter can take down your
testimony, please.
A. Tie is a little tight.
Q. Mr. McDuffee, do you know the defendant, James
Jenkins?
A. Yes, I do.
Q. And do you recognize him in the room sitting at
defendant's table?
A. Yes, I do.
Q. How did you first hear about The Woodlands Road
Utility District?
A. I received a call at my residence and saying there
was going to be a big meeting at Jim's place and that if I
could make it to be there that evening.
Q. And did you attend that meeting?
A. Yes. I attended that meeting, yes.
Q. And do you recall the month and year of this meeting?
A. Best of my recollection it would have been in
probably March of this year. Correction. You can tell I'm a
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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little nervous.
Q. It's okay. Take your time.
March of what year, Mr. McDuffee?
A. 2010.
Q. 2010. So, three years ago?
A. Three years ago, yes.
Q. And was this then roughly two months before the
May 8, 2010 Woodlands RUD election?
A. I would say somewhere in that area. I was -- didn't
know what the meeting was going to be about. Wasn't really --
wasn't too interested.
Q. And were the meetings at -- you say, "Jim's." Was it
Jim's home or his place of business? Where was the meeting?
A. His place of business off 2920 in Harris County.
Q. Okay. And just for the record, that's not inside The
Woodlands Road Utility District?
A. No.
Q. Mr. Jenkins' home, you know that to be where?
A. The south part of -- off of Sawdust Road in The
Woodlands.
Q. Okay. Not inside the Road Utility District?
A. No.
Q. Okay. And at this first meeting, you said you
received a call. And were you informed at that time that it
was about the --
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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MR. HEATH: Your Honor, I'm going to object.
It's leading, suggestive, and -- well, those are my objections.
THE COURT: Okay. Complete your question and
then we'll give Mr. Heath an opportunity to object.
Go ahead.
MR. WHITE: And if it was a bad question, I'm
happy to ask it a different way.
THE COURT: Well, if you want to start over, you
could.
MR. WHITE: Let's do that.
THE COURT: Okay.
Q. (BY MR. WHITE) Did you know what the meeting was
about, Mr. McDuffee, before you went?
A. Not to my recollection, no.
Q. Okay. So, when you got to the meeting at Jim's
office, what was proposed to you?
A. Meetings didn't start until like 30 minutes. Jim was
there. I think Jim Doyle was there. From what I remember, we
were waiting for Adrian to show up because it was his
information.
Q. And by "Adrian," you mean whom?
A. Adrian Heath.
Q. And by "his information," you mean what information?
A. He was the one that had uncovered the RUD and how
it's run and how the elections were run. The fact that there
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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never an election in the RUD.
Q. And you mentioned the name Jim Doyle as well. His
name has come up in this trial. Who is he?
A. Jim Doyle is probably one of the longest ones that's
been associated with Jim to my knowledge. Signing open record
requests, signing complaints against politics --
MR. HEATH: Objection, Your Honor. It's not
responsive.
THE COURT: I'm sorry. There's a big horn
outside.
MR. HEATH: I understand.
THE COURT: There's a train that must be coming
right down the street.
MR. WHITE: I'll object to the horn, Your Honor.
THE COURT: Well, it's a sign that someone's
going on a journey.
You make an objection for what?
MR. HEATH: Our objection is that it was
nonresponsive.
THE COURT: All right. Sustained. Ask your
next question.
Q. (BY MR. WHITE) Who is the person, Jim Doyle,
Mr. McDuffee?
A. Jim Doyle is one of the gentleman I'm associated with
when I'm at Jim Jenkins' office. Other than that, that's the
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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only other time I know Jim.
Q. And is he married to Sybil Doyle?
A. He's married to Sybil Doyle, yes.
Q. Okay. Is Mr. Doyle a part of this group that
regularly met at Jim's office?
MR. HEATH: Objection. Leading.
THE COURT: Sustained. Rephrase, please.
Q. (BY MR. WHITE) Is Mr. Doyle -- what -- tell me who
is in this group of people that meets regularly at Mr. Jenkins'
office?
MR. HEATH: Objection. Relevance unless there's
a time period placed on it.
THE COURT: Any response?
MR. WHITE: Well, my understanding --
THE COURT: It is pretty open-ended.
MR. WHITE: My understanding was that the time
period that we were dealing with was the one precedent to these
questions which was meeting at that office.
THE COURT: I'm going to sustain the objection
as the question is asked, but you can rephrase it to condition
it upon a time period.
Go ahead.
Q. (BY MR. WHITE) Mr. McDuffee, again, we're talking
about this first meeting that you testified earlier that took
place at some point in March of 2010, that there was a group of
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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you that meet at Jim Jenkins' office.
A. Correct.
Q. Who all was at that meeting?
A. Best I remember there was Jim, Jim Doyle, Pete
Goeddertz, and Adrian Heath, and myself.
Q. And what was discussed at that meeting?
MR. HEATH: Your Honor, I think it's going to
call for hearsay. That's our objection.
THE COURT: Okay. Response?
MR. WHITE: Your Honor, I believe the statements
at this meeting -- couple of things.
First off, that they'd be statements by
co-conspirators, the people that were involved in this scheme
to take over the RUD.
And, second of all, probably the statements are
not going to be offered for the truth of the matter asserted in
the first place.
THE COURT: So for what purpose?
MR. WHITE: For the purpose of showing this
scheme and who was members of it.
MR. HEATH: Your Honor, I'm just going to renew
my objection that it's going to call for hearsay. It's also
going to call for -- Mr. Doyle has not been alleged to be part
of anything. He's not been charged with any offense.
We would object to these -- the comments that
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occurred in this meeting as being hearsay and possibly
statements by co-defendants as well.
THE COURT: Okay.
MR. HEATH: Conspiracy has not been alleged in
this case.
THE COURT: I understand. It hasn't been, but
it can nonetheless be admissible even though it's not alleged
in the indictment.
Anything else to add?
MR. WHITE: In response to that, the conspiracy
that the State alleges is not indicted illegal voting offenses,
but the scheme to take over the Road Utility District, which
may have well included more individuals than just the ones
indicted and lasted a longer period of time than just the
voting.
THE COURT: Okay. What's your response to that?
MR. HEATH: I'm going to renew my objection that
it's calling for hearsay. It's also, I think, objectionable
because --
THE COURT: Okay. Why don't we discuss this up
here for just a moment, okay?
(AT THE BENCH, ON THE RECORD)
THE COURT: Really -- let's make sure that we
can find all our proof here to what's relevant to the
allegations in the indictment, not some global charge to take
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over the world --
MR. WHITE: Sure.
THE COURT: -- but what's been charged in the
indictment.
So, in relation to that, again, you're
proffering the evidence in relation to the relevancy to what's
charged in the indictment for?
MR. WHITE: The -- this is the initial meeting
of where the idea of the Road Utility District vote was
proposed to the small group of individuals that are a group
that Jim Jenkins being the leader of that group.
THE COURT: Well, they are entitled to produce
some information that is admissible for purposes of what's res
gestae to the offense, also toward motive; the scheme, how it
was perpetrated, how it was planned; and that's admissible if
it's relevant. But I just don't want to -- you mentioned
something about it doesn't have -- it had something to do with
something outside the bounds of the indictment, which I don't
prefer to get into.
MR. WHITE: Well, if I said something like that,
I probably didn't use the best language.
THE COURT: Okay. Keep it to what is connected
with proof relating to the elements of the offense as you
believe them to be in your strategy in proving your case.
And I understand your objection --
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MR. HEATH: Yes, sir.
THE COURT: -- but it's overruled.
MR. HEATH: All right.
(IN THE HEARING OF THE COURTROOM)
THE COURT: Proceed, please.
Q. (BY MR. WHITE) Mr. McDuffee, did you discuss with
Mr. Jenkins the idea of voting in the Road Utility District?
A. At what time?
Q. At the time of -- in March of 2010.
A. Yes, there was meetings. I was at Jim's office and
it was brought up, yes.
Q. Did Mr. Jenkins express a desire for you,
specifically, to take a part?
A. Yes.
Q. And what was that role?
A. At the beginning it was just to get change of
residency so he can be in the -- be in the district. And at a
later date it was -- I filled out the campaign application. I
would be the president.
Q. So, if I'm hearing you correctly, the plan was for
you to run as a candidate for the Board of Directors of The
Woodlands Road Utility District; is that correct?
A. Yes.
Q. And you were to be, in fact, the president?
A. Yes.
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Q. And how was that distinction bestowed upon you?
A. It was offered and I accepted. The other two
gentlemen didn't express any desire to be president of the
board.
Q. And the other two gentlemen were whom?
A. Pete Goeddertz and Bill Berntsen.
Q. Okay. And did Mr. Jenkins give you any instructions
or indicate how he wanted you to proceed should you be elected
to the Board of Directors?
A. The instructions were, in fact, to be elected, become
president, pay off the bills, and turn the lights out. To shut
it down. Close the door.
Q. To shut down the Road Utility District?
A. The RUD.
Q. Did you, at some point weeks later, pick up a
registration card and change your address? And by that I mean,
your voter registration. Did you fill out a voter
registration?
A. I filled out a voter registration at Mr. Jenkins'
office.
Q. At Jim Jenkins' office?
A. Correct.
Q. And that was in what month; do you recall?
A. I would say April. Over 30 days out from the
election.
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Q. Okay. And was it before that or after that that you
had filled out your application for candidacy?
A. Before.
Q. Okay. Do you remember receiving a letter at any
point regarding this matter?
A. Yes, it was from Montgomery County District
Attorney's office, Brett Ligon. It was signed by, I believe,
First Assistant Phil Grant.
Q. And I'm not going to ask you about the contents of
that letter, but what did you take that letter to indicate to
you?
A. Danger. This wasn't going to be a walk in the park.
It was not something taken lightly.
Q. And did that cause you concern?
A. Yes. Questions were raised about it, informal
discussions about it, talked with some, I'd say, lawyers in the
county not on time, just asking their input. And it was more
of a way down, maybe very vague anything would happen.
Q. Now, you were running for president of the board.
Were you the leader of this group?
A. No.
Q. Who was the leader? If you had to say there was a
leader of this group, who would that have been?
A. Mr. Jenkins.
Q. Mr. Jim Jenkins, the defendant?
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A. Mr. Jim Jenkins.
Q. And why would you say that he was the leader of this
group?
A. Everything flowed out of Jim's office. The things
that we've done in the past that were --
MR. HEATH: Objection, Your Honor. That's not
responsive to the question. And it's also completely out of
the time frame we're talking about.
THE COURT: All right. As to that portion of
his objection, I sustain. If you can make sure it's relevant
to the allegations in the indictment.
Q. (BY MR. WHITE) And going forward, if we can,
Mr. McDuffee, just to keep your comments as much as possible
toward the Spring of 2010, in that time period.
But just as background coming into this whole
scheme, was Mr. Jenkins the leader to you, the group
personally?
A. Yes.
Q. Okay. And what was his role specifically with the
RUD voting idea?
A. First I heard about it was from Mr. Jenkins.
Q. What was the plan?
A. The initial plan or as it expanded?
Q. Let's talk about the initial plan to -- we've already
registered to vote. What was the initial plan in terms of the
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Residence Inn and vote?
A. There was piece of paper posted on the wall on
Mr. Jenkins' office; and when you filled out your voter
registration card, you wrote down the address at the Residence
Inn in The Woodlands.
Q. That information you're saying was on the sheet in
Mr. Jenkins' office?
A. Correct.
Q. And after you filled out your registration, did you
receive a voter card in the mail?
A. Yes.
Q. And from then on, what was the plan of the group in
terms of voting and if there were any plans to stay at the
Residence Inn, physically stay at all?
A. There was never a meeting I was involved in that was
staying at the Residence Inn prior to the election of -- I'm
sorry. Could you repeat that?
Q. I'm just asking you what the plan was, that you're
aware of, of the group, of Mr. Jenkins specifically, in regards
to voting the May 8, 2010 election?
MR. HEATH: Your Honor, that's been asked and
answered.
THE COURT: Overrule.
A. We had the initial ones to change the votes, all of
the ones who were also in the original trial. Plus, I was
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asked to find -- or get my wife to change her address to the
Residence Inn. That we wanted more than ten.
Q. (BY MR. WHITE) Did you ask --
THE COURT: I need to see the lawyers up here,
please. Thanks.
(AT THE BENCH, ON THE RECORD)
THE COURT: Audley, you're not paying attention.
Your client is shaking his head in response to the questions
and I --
MR. HEATH: I'm sorry.
THE COURT: -- and I perceive that to be --
trying to make nonverbal communication to the jury and trying
to influence them.
MR. HEATH: I'll tell him to stop, Judge.
THE COURT: Urge him not to do that. Next time
I see that, I'll do it. And if it's in front of the jury, it
doesn't help him at all.
MR. HEATH: I understand, Judge.
THE COURT: Thank you for -- I know he may be
unhappy about what he's hearing, but he doesn't need to be
expressing it with indications that are obvious to everybody.
You're looking down and writing and you're not looking at him,
but he's doing it.
MR. HEATH: I appreciate that.
THE COURT: Thanks.
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(IN THE HEARING OF THE COURTROOM)
THE COURT: Okay. Go ahead.
Q. (BY MR. WHITE) So, did you, in fact, ask your wife
to vote in this scheme?
A. I can't answer yes or no on that.
Q. Don't recall?
A. Being that she has a state license, I did not feel
that she would be comfortable with that. I did ask a neighbor.
Q. Okay. But you were asked by Mr. Jenkins to recruit
more or less?
A. The general consensus was, get more than just you to
change their voter registration, to me.
Q. Okay. Now, the evening of the -- before the
election, which would be Friday, May 7th, the election being
Saturday, May 8th --
A. Correct.
Q. -- the records of the Residence Inn indicate that two
rooms were rented by individuals in this voting group of ten.
Is that your understanding as well that two rooms were rented
that night?
A. I knew there was a room. I do not recall if there
was more than a room.
Q. Okay. Were you supposed to be sharing a room with a
group of individuals on that night?
A. No.
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Q. Did you, in fact, stay that night at the Residence
Inn?
A. No.
Q. Did you stay any night prior to that night at the
Residence Inn prior to voting?
A. No.
Q. Did you stay any night after that night at the
Residence Inn?
A. No.
Q. Have you ever stayed a night at that Residence Inn?
A. No.
Q. Now, after the election took place, you were one of
the three that had actually received the most votes in the
election, correct?
A. Correct.
Q. How did you find out that those results were not
going to be certified?
A. We all went to the next board meeting of the RUD and
put a canvass into the vote and that's when we learned that
they were not going to canvass the vote.
Q. And knowing that, what did -- what did the group do?
A. Not being in the legal -- or into elections, the
group had no idea what was going to happen.
Q. So, what was the next course of action for the group?
A. I believe the -- because the very following day after
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the RUD's board meeting, very soon after was when we got the
first official notice that we were going to be taken to court.
Q. Okay. And after the group members -- or the group
received word that this matter was going to court, what did the
group do in response to that?
A. A lot of meetings or talking. Not meaning everybody
because if you were there, you heard something and if you
weren't there, you didn't hear it. I'm trying to put it into
few words as possible.
The biggest thing is when we were told by my
attorney was to meet at his office and have a reason for why
you moved out of your residence to the Residence Inn.
Q. And did you have a reason?
A. I had a made-up reason.
Q. What was that made-up reason?
A. I had a security license and insurance license and I
needed to be in the center of the area to be able to do sales
and compliance.
Q. What was the real reason?
A. To vote in the RUD.
Q. And did you or, to your knowledge, any of the other
voters actually move to the RUD?
A. No.
Q. Do you remember any of the other -- do you remember
the made-up story for Mr. Jenkins, if there was one?
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A. I was not present when he was there on that Saturday.
I'm trying to think of the brothers.
Q. So, you don't know specifically Mr. Jenkins?
A. No. No.
Q. Did you hear some of the made-up reasons of other
members of the group without going into them?
A. I had bits and pieces when I would interact with
someone else or run into one of the others.
Q. In addition to coming up with reasons for
quote/unquote moving into the Residence Inn, what were some of
the other things that the group did in preparation for this
civil trial?
A. Rent more rooms, meet for breakfast at the Residence
Inn. Ben and Robert, basically was given a room to stay in
paid by others. Later on -- forgive me. I'm not real good
with names even though I should know them. Moved into the room
into the Inn. Tom Curry and his wife, but that was way later.
Mainly two rooms either we could stop by, put
some clothes in a room, if I had a pad key to, and leave; and
show up the next morning for breakfast.
Q. So, you actually participated in some of these
activities?
A. I participated in some of these activities, yes.
Q. And you would bring items from home, clothes, put
them in a room?
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A. Yes.
Q. But never stay the night?
A. Never stayed the night.
Q. And at these breakfasts or get-togethers that the
group had at the Residence Inn, you would be there for some of
those as well?
A. Yes.
Q. You -- were you just making an appearance?
A. Basically, yes.
Q. And for what purpose?
A. Make sure the front desk knew your name; have mail
sent there and have it held at the front desk; take pictures in
the morning and make sure the newspaper was in it, obviously,
say I was there, others were there making sure their faces were
in the pictures also.
Q. I'm going to show you what's been marked as State's
Exhibit 33. I'm actually going to tender this to counsel first
and then I'm going to show you a copy. Do you recognize these?
A. Oh, yes.
Q. And what are those, Mr. McDuffee?
A. That is the Residence Inn's breakfast area.
Q. Flip through those pages, if you would, and make sure
you recognize all those photos.
THE COURT: All of those are collectively
referred to as State's Exhibit 33?
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MR. WHITE: Yes, Your Honor.
MR. HEATH: Your Honor, I can speed it up for
you. No objection.
THE COURT: Admitted.
Q. (BY MR. WHITE) And, Mr. McDuffee, are these, in
fact, the photos that were admitted by the group of eight at
the civil suit who joined as intervenors in the case against
the RUD? Let me break that down a little bit more.
Do you see the notions here on Exhibit 33?
A. Yes, I see those.
Q. And what do those notions say?
A. 18(a), (b). Goes through the alphabet.
Q. And the word before Exhibit is what?
A. Intervenors.
Q. And that was you guys, correct?
A. Correct.
Q. And the group of eight that decided to join as
intervenors and intervene in the lawsuit against the RUD; is
that correct?
Or am I mixing up the legal -- explain it to me,
please.
A. This is after the votes. These are the intergroup
that were -- voted in the vote. And when we knew we were going
to trial, then it was sped up. Breakfast. I'm sitting there
with some of my paperwork at the time like I was working.
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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Others were coming and going, reading the newspapers. That was
all posed.
Q. Okay. Let me jump right back. The question I'm
asking is just a background question is: Do you recall that
your group offered these at trial or not? That's fine if you
don't.
A. I do not know.
Q. Okay. But these are fair and accurate pictures of
the group of you at the Residence Inn?
A. Yes. I was --
Q. Do you happen to know who these were taken by?
A. It was whoever had a camera that day. Tom Curry.
Jim had a camera. I had a camera. I think Bill Berntsen
brought a camera. It was never everybody had a camera at once.
Q. Okay. I'm showing you first photo here. And this
individual is whom, please?
A. That's Jim Jenkins.
Q. Okay. And who is this individual right here?
A. That's Jim Doyle.
Q. Jim Doyle. That's the husband of Sybil Doyle, if I'm
correct.
A. Correct.
Q. This individual back here is whom?
A. Adrian Heath.
Q. And do we recognize this one? Or can we make him out
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in the picture?
A. I would have to guess.
Q. That's okay. We don't need to guess.
And down here, the next picture is? This you?
A. That's me, yes.
Q. And what are you doing in this picture, if you
remember?
A. This is probably a portfolio I had on a client and,
like, reviewing the documents, whatever I was doing with them.
Q. Is that typically how you review a document out here
to your right?
A. No.
Q. Was this a posed photograph?
A. Yes.
Q. How about this one?
A. Yes. That was -- that's Prime America that was who I
was an agent with, independent agent. And that's probably just
a standard letter I got, I received.
Q. What's the purpose of showing business papers in
these photos at the Residence Inn?
A. I was supposed to be in the district doing business.
Q. That was your -- is that your story?
A. That was my story, yes.
Q. Okay. And these individuals at the table here? This
appears to be the backside of the table from photo one on the
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cover. Are these the same individuals as we mentioned before?
A. Yes.
Q. This is Adrian Heath?
A. Adrian Heath.
Q. Jim Doyle? This would have Jim Jenkins back here
then?
A. Right.
Q. And do we recognize this individual now?
A. I would think of the size it had to have been Tom
Curry.
Q. Okay. And there seems to be mail on the table. Was
that part of this whole operation, mail?
A. Yes.
Q. What did that have to do with?
A. You mailed to yourself or mail, whatever you had,
mailed to the Residence Inn and have them hold it at the front
desk.
Q. So, you would send mail to yourself?
A. Yes.
Q. Okay. And who is this smiling fellow in the yellow
shirt?
A. That's Bill Berntsen.
Q. And this appears to be Tom Curry then here?
A. Uh-huh.
Q. And would this be self-addressed mail?
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A. More than likely. I can't make -- but even I had
mail sent to the Residence Inn.
Q. See if you can make out the wording on it if you look
at your paper copy there.
A. I can make out Tom Curry at the top. And after that,
without a magnifying glass, I would be guessing.
Q. That's all right.
This photo down here of -- would this be
Mr. Berntsen intrigued with the newspaper?
A. Yes.
Q. And we have not seen this person before, I don't
believe. Who is this?
A. That's the brothers. That's Ben and I don't remember
his younger brother's name.
Q. Okay. Ben Allison?
A. Allison. Thank you.
Q. And would it be Robert?
A. Robert. Ben and Robert, yes.
Q. And if you look at your paper copy, I'm not sure if
you can make this out at all, but this document has a seal on
it. And I'm curious if you can make out what that is or if you
have a recollection.
A. No. I can tell that it's some kind of a document.
Q. That's all right if you don't remember. That's just
fine.
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Do you know what this photo is?
A. This is the indoor swimming pool at the Residence
Inn.
Q. Okay. Do you know who these individuals are?
A. That would be Mr. Jenkins. I'm assuming that's one
of his grandsons. And Bill Berntsen.
Q. Okay. And by Bill Berntsen, you mean the photo down
here?
A. Bottom of the second one on my page.
Q. Now this -- were you aware of any of the members of
the group bringing family to the hotel to pose for these
photos?
A. I soon recall Jim talk about bringing his grandson.
I do not believe I was there that morning.
Q. Okay. And this fellow with the smirk holding the
Chronicle is who?
A. Tom Curry.
Q. Okay. And what was the purpose of the newspaper
again?
A. Proof of date and time. Newspaper has the date that
it would have been published on.
Q. Now, were these stays before or after the election?
A. After.
Q. All of these photos in here that you have seen?
A. Yes.
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Q. And all of them that you flipped through earlier?
A. Yes.
Q. All post-election?
A. All post-election.
Q. Have we seen a photo -- have shown the jury a photo
of Pete Goeddertz yet?
A. I haven't identified him, no.
Q. Is he in this picture?
A. Yes, this is him. Mr. Goeddertz on the right corner
there.
Q. On the right corner here?
A. Yes.
Q. And he's sitting next to? Is this Tom Curry?
A. Tom Curry.
Q. Who is this?
A. Adrian Heath.
Q. And at the bottom here, Goeddertz again?
A. Yes.
Q. Curry and this time?
A. It will be Bill Berntsen.
Q. Berntsen. Okay.
Now, in none of these photos do we have any
pictures of the ladies, Sybil Doyle and Roberta Cook. Why is
that, sir?
A. To my knowledge they were never there. The mornings
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I was there, I never encountered them at the hotel.
Q. Now, these are blurry photos but can you make them
out?
A. I know that one.
Q. Who is this?
A. That's Tom Curry.
Q. The one below it, who is that?
A. His wife.
Q. And this is, again, in the period of time after the
election?
A. After the election, yes.
Q. What was the idea of having the wife along?
A. Prove that he and his wife was living at the Inn.
Q. And here we have a basketball game. Was there a real
basketball game that you know of?
A. There may have been a three or four out shooting
baskets one evening or two. I have witnessed one from
Mr. Goeddertz's room one night. His was on the far wing and
this is were the basketball court is, I believe. And I looked
out there and there was three.
Q. Here we have what appears to be a closet with clothes
in it. What was the purpose of the photos like this?
A. Showing that we had clothes in the apartment -- I
mean, in the Residence Inn. If your closet wasn't empty, well,
you spent the night away.
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Q. Now, was that an accurate representation of what was
happening?
A. The only accurate people who would have had clothes
at the Residence Inn would have been the Allison boys.
Q. And if there were two leaders of the group,
Mr. McDuffee, besides Mr. Jenkins, who you already identified,
did -- do you think there's a second leader of the group?
A. Honestly, I could not answer that. The few times I
was ever around when Adrian was at Jim's office. Mostly
everything was flowing out of Jim.
Q. And this is Adrian here holding the -- what appears
to be a voter's registration card; is that correct?
A. Correct.
Q. Adrian's role to the group was what then?
A. On this subject matter, the fact that he had
discovered it, had researched it, looked into it, had made
contact with their attorney, tried to see open records on it,
to that extent is all I would know.
Q. Okay. More of the idea guy is what it sounds like?
Brought the idea to the group; is that what you're --
A. -- some --
Q. -- saying?
A. -- and brought it, yeah.
Q. Okay. To your knowledge, did any member of this
group, prior to the election, have any other reason for staying
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in this hotel other than voting in the election?
A. None that I know of.
MR. WHITE: Pass the witness.
MR. HEATH: Your Honor, I would like to take a
break if we could.
THE COURT: Let's go forward.
MR. HEATH: Can't take a break? I need to take
a restroom break.
THE COURT: You got it.
MR. HEATH: Thank you.
THE COURT: No problem. We're going to take
about a five-minute break; ladies and gentlemen. Thank you for
bearing with us.
We're recessed.
(SHORT BREAK TAKEN)
THE COURT: Ladies and gentlemen, during the
recess the State and the Defense discussed an issue. And the
State is requesting the Court to allow the State to allow to
ask the witness some more questions.
And I think that's done without objection by the
Defense?
MR. HEATH: That's correct, Your Honor.
THE COURT: And so --
MR. WHITE: Thank you, Your Honor.
THE COURT: -- the State may proceed on direct.
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CONTINUING DIRECT EXAMINATION
BY MR. WHITE:
Q. Mr. McDuffee, there were quite a few rooms rented,
are you aware of, that prior -- or -- prior to the civil trial?
A. Prior to the civil trial, I -- number I did not know;
but, yes, I knew there were rooms being rented.
Q. Okay. And are you familiar with the cost of those
rooms?
A. No. I just donated toward that.
Q. What did you donate?
A. I don't really recall. I don't want to get into the
detail, but there were large sums along the way for rooms.
Q. And whom did you pass that money along to?
A. I couldn't really tell you. At that time, it was
kind of hairy in my life.
Q. Do you know if Mr. Jenkins spent a lot on rooms?
A. Never heard a word as to who, what, when, and where.
Q. At some point was there an issue prior to the
election contest in regards to the night before the vote that
not enough money had been spent on hotels?
A. What I recall was the fact that Residence Inn allows
four per room. Ten of us and two rooms at the Residence Inn.
Q. And that was two rooms?
A. Two rooms. Ten occupants. Ten total.
Q. And did the group see that as a problem at the time
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of the election?
A. No.
Q. Did the group see that as a problem after the
election once the civil trial had started?
A. It was pointed out by an attorney that two rooms for
ten was not going to cut it.
Q. And what does it mean, "not going to cut it?"
A. You can't have married women staying with married men
in a motel room in The Woodlands. They're not married
together. They're not husband and wife.
Q. Now, was anyone called to task for that situation
specifically?
A. My recollection was that the conversation was
appointed to Mr. Jenkins.
Q. And what was Mr. Jenkins' response, if you recall, to
that?
A. I don't believe there was a response.
Q. In your knowledge of Mr. Jenkins -- and how long have
you known Mr. Jenkins?
A. I first became acquainted with Mr. Jenkins in the
90's. I ran for a precinct chair.
Q. Okay. So, since you've known Mr. Jenkins in the
90's, have you known him to be a frugal man or a man that
throws money around?
A. Very frugal.
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Q. And when you say "very frugal," what does that mean
to you?
A. There were just never any -- somebody had to pay for
it. It was a group effort. It was me in his office, his
business was working, and if you found a chair, good; and if
not, stand.
MR. WHITE: Approach for an exhibit, please?
THE COURT: All right.
Q. (BY MR. WHITE) I'm going to show you, Mr. McDuffee,
on the screen State's 19. These are Residence Inn records for
the period after the election. And if you can make this out,
Mr. Jenkins' name is on this bill along with three other
members of the group; is that correct?
A. Correct.
Q. And this is one night at $189; is that correct?
A. Before tax, yes.
Q. Right. And the total is 213 with tax and some
change?
A. Correct.
Q. And here we've got a list of stays of Mr. Jenkins.
I'll zoom out so we can see the whole list. Can you make out
the amounts here on the side as these rooms total up? We've
got the arrival of May 29th of 2010; departing on June 14th of
2010, which is 16 nights.
Do you see these totals of 842 and change; 841
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and change? On the next page, another 841 and 168 and change?
A. Yes.
Q. And would you say that's a considerable amount of
money?
A. Yes.
Q. And what, again, was going on during those first few
weeks of June?
A. The appearance that we were there continuously or
several rooms being rented at a time. There was not just two
rooms and nothing, two rooms and nothing. More of an
appearance. That was when the Allison's, actually, I believe,
were staying at the Residence Inn during those time periods.
Q. And the purpose of making that appearance was for
what?
A. For the trial.
Q. Now, Mr. McDuffee, you've obviously separated from --
yourself from the group at this point, right?
A. Correct.
Q. And why was it that you chose to do that?
A. After the trial, they wanted to appeal and they
needed the court reporter's record and the attorney was not
going to pay for it and he wanted money.
Q. And at that point -- at some point later, did you
become aware of a criminal investigation into this matter?
A. Well, the word from the attorney was, if you lose
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this appeal, it's going to be criminal.
MR. HEATH: Objection. Hearsay, Your Honor.
THE COURT: Sustained.
MR. HEATH: And ask that the jury be instructed
to disregard --
THE COURT: Disregard the last statement,
please.
MR. HEATH: We would move for a mistrial.
THE COURT: Denied.
You are instructed to disregard the last
statement of the witness and do not consider that at all for
your deliberations, ladies and gentlemen. Thank you.
Q. (BY MR. WHITE) And, Mr. McDuffee, if you'd just
listen to the question as directly as you can. Respond
directly as you can.
Did you become aware that there was a grand jury
investigation into this matter at some point?
A. At what time period are we -- after the first trial?
Q. At -- a criminal grand jury investigation, at some
point did you became aware of that?
A. I became aware, yes.
Q. Okay. And what did you do in response to that?
A. Sleepless nights. Reached out to others. I reached
out to your office.
Q. Okay. And when you called my office, did you speak
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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with me on the phone?
A. I left a message.
Q. Okay. And at some point, did we speak together?
A. Yes.
Q. And do you recall what you told me in regard to being
invited to grand jury to testify?
A. Verbatim, no. It was come and tell the whole truth.
Testify before a grand jury and answer the questions
truthfully.
Q. And what was your desire to do at that point?
A. My desire was to get the -- to correct the wrong that
I had done.
Q. And did you, in fact, testify at the grand jury?
A. Yes, I did.
Q. Did you understand that there might exist options for
leniency for people who cooperate and tell the truth in front
of a grand jury?
A. Yes.
Q. Were you promised anything, any leniency of any kind?
A. No.
Q. As you sit here today, are you under indictment for
the charge of illegal voting in this 2010 election?
A. I was not indicted from the grand jury, no.
Q. Are you under any criminal charge for that election?
A. I would say the potential, yes.
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Q. Have you been arrested?
A. No.
Q. Okay. Was that as a result of an agreement that you
had in exchange for your testimony at grand jury, that you were
not indicted?
A. I was not aware of that. I came to testify to the
grand jury and let the chips fall.
MR. WHITE: Pass the witness.
CROSS-EXAMINATION
BY MR. HEATH:
Q. Mr. McDuffee, it was only after the civil trial that
you began to become worried about your position, is that
correct, with respect to this election?
A. Trying to really think and not get the answer -- I
became concerned with the District Attorney's letter.
Q. All right. Let's talk about that.
You received a letter. You indicated who it was
from. The first assistant, right?
A. Yes.
Q. And -- Mr. Grant, Mr. Phil Grant?
A. Correct.
Q. In that letter, he urged you to do three things,
didn't he? He urged you to seek counsel. And what did you
understand that to mean?
A. That it was serious.
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Q. But what did you understand the word "counsel" to
mean?
A. An attorney at law.
Q. All right. Pursuant to that, you did talk to some
attorneys, didn't you?
A. I talked to an attorney at a gathering. It was not
for any of us. It was at his home.
Q. All right. Someone you knew?
A. Yes.
Q. And someone you trusted?
A. I felt, yes.
Q. You were also given two other items to review or
suggested to review; and that was the law itself, right, from
the election code and two position papers, one from the
Secretary of State and one from the Attorney General, right?
A. Who would I receive these from?
Q. In the letter that you received from Mr. Grant it
suggested that you review those things.
A. Correct.
Q. Did you personally ever review the election code, the
position paper from the Secretary of State, or the Attorney
General's opinion?
A. No.
Q. Now, is the reason that you did not review them,
because when you talked to the lawyer, you were pretty certain
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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that you were okay?
A. No. He left it up in the air.
Q. So, that counsel told you it's fifty-fifty or dicey;
is that right?
A. He basically said he couldn't call it.
Q. Too close to call for him, correct? So, did you seek
any other counsel after that? Now, this is before the
election.
A. I cannot answer that yes or no.
Q. All right. Now, when you decided I'm going to go
ahead and vote, you did that on your own, didn't you? That was
your decision?
A. I went to the voting polls, yes.
Q. And when you decided to run as an -- for an office in
the RUD, you're indicating you wanted to be the president, you
made that decision too, didn't you?
A. I can't answer that as a yes. There was discussions.
Q. Okay. Let me ask it another way. You agreed to do
it?
A. I agreed, yes.
Q. And you agreed because you believed something was
going on wrong over there in the RUD, didn't you?
A. I didn't know that, no.
Q. But something compelled you to run for that office,
right?
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A. Short answer, there was no voters the district.
There was never an -- had been an election for this RUD.
Q. You thought there was something wrong with that,
didn't you?
A. I don't remember who brought it forth, but there were
six people who lived inside the RUD.
Q. Well, you thought there was something wrong with
there not having any elections in that Road Utility District,
didn't you?
A. For there to be voters in the district and there was
never a called election, yes, that was a problem.
Q. And you thought it was wrong, didn't you?
A. I felt it was not -- it was against the state laws
since there should have been an election called. There were
voters.
Q. All right. So, you felt like you personally and
everybody in Montgomery County was being wronged, didn't you?
A. No.
Q. Just you?
A. I don't know what the other people thought.
Q. But that's what you thought?
A. I felt that it was wrong.
Q. All right. And you then decided, because you felt it
was wrong, how do I right this wrong; I get engaged in the
political process, correct?
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A. Correct.
Q. And you would consider yourself a person who is
engaged in the political process, wouldn't you?
A. No.
Q. You would not?
A. No.
Q. You think the average citizen would be worried about
there not having been an election in a RUD?
A. I can't answer that.
Q. But you were concerned about that, right?
A. I felt it was incorrect. There should have been
called an election. Should have been on the ballot.
Q. All right. And you then tried to figure out how can
I legally register to vote in that district, didn't you?
A. Never.
Q. You did not think about it?
A. No.
Q. You did not seek counsel about it?
A. For what? To seek counsel for what?
Q. To legally register in the district.
A. Could you rephrase the question?
Q. Well, you've indicated that you thought it was wrong;
that you thought there needed to be an election, right? You've
testified to that?
A. I thought there should be an election.
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Q. And you thought enough of it to actually put your
name in the hat as far as being a candidate for one of those
positions in the RUD, correct?
A. Correct.
Q. And you felt confident in doing that because you were
a resident of Montgomery County?
A. No.
Q. You were not a resident of Montgomery County?
A. To be a candidate for the RUD, you had to be a
citizen of the state of Texas.
Q. All right. So, you felt confident about that. You
were a citizen of the state of Texas.
A. Any citizen of the state of Texas can put in their
application to be candidate for any of these boards.
Q. So, you were well within your rights of doing that;
is that correct?
A. That's correct.
Q. All right. You had no worries about that at all,
correct?
A. No.
Q. So, you received a letter from Phil Grant. About how
long before the election did you receive the letter?
A. About a month, give or take.
Q. And in that month, you just talked to a lawyer about
that letter? You didn't talk to anybody else?
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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A. There was general talk in the group.
Q. All right. And did anybody else in the group, that
you know of, seek counsel?
A. Not to my knowledge.
Q. All right. So, you don't know whether Mr. Jenkins
sought counsel or not from a lawyer before the election?
A. I was not privy to any of those meetings.
Q. All right. And did anybody share with you those
position papers, that Secretary of State position paper that
Mr. Grant suggested that you review, or the Attorney General
paper? Did you ever see a copy of it? Did you ever read it?
Did you ever look at it? Did you ever try to digest it?
A. No.
Q. Why didn't you?
A. I had trust in a friend.
Q. All right. And that friend was who?
A. Mr. Jim Jenkins.
Q. That's right. And what did he tell you? That he had
read every one of those papers, right?
A. I do not recall him telling me that.
Q. And that he had read the case law that those papers
talked about, right?
A. I do not know that.
Q. Well then, what did he tell you?
A. Don't worry about the letter. It's a gray area.
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Q. A gray area. All right. And consequently, it was
okay to vote in the RUD, right?
A. It was okay to proceed.
Q. It was legal to proceed, right? That's what
Mr. Jenkins thought, right?
A. I don't remember him ever saying that he thought it
was right.
Q. It's not my question. My question was: It was legal
to go forward?
A. It was not a cut and dry, yes/no legal.
Q. All right. And did he share with you his belief that
if you had the intent to establish a residence and you had
physical presence at that residence at the time that you voted
that that was -- that would satisfy the statute? Did he tell
you that?
A. I've heard that argument, yes.
Q. Did Mr. Jenkins tell you that?
A. I cannot answer that yes or no.
Q. Who do you think told you that?
A. It could have come from anyone of the group or they
had heard it. I do not know. The general consensus was that
it was a gray area. I know where it happened after the
election. But before, I was not -- I was not in meetings on a
daily basis/weekly basis with the group.
Q. But you felt confident enough to not only put your
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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name on the ballot, but to go down and vote for yourself and
for your other -- the other candidates, correct?
A. Correct on putting my name on the ballot. Totally
legal. But voting was not cut and dry with me, no.
Q. And yet you still did it and you did it after seeking
counsel, correct?
A. Let's say I was in a room with an attorney who was
asking questions and I listen in on the conversation, did I go
and pay the attorney to give me an opinion, no.
Q. Do you know if any of the other people in the group
did that, paid an attorney to give them an opinion?
A. No. I have no knowledge.
Q. Did anybody in the group offer you the Secretary of
State position paper to look at?
A. Before the vote?
Q. Yes, sir.
A. I couldn't tell you the number of times I even saw
any of the group before the election.
Q. Because you were -- the first time that you heard
anything about this incident was in a public meeting at a
library in the RUD, wasn't it? The first time you heard
anything about problems with the RUD?
A. No.
Q. And Mr. Jenkins wasn't the person speaking. Adrian
Heath was. He's the one that discovered all this, right?
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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A. I've heard it from Adrian Heath on the night of the
meeting at Jim's office. The first time I heard anything about
the RUD and they had no elections because there were no
candidates in the district. There was no -- sorry -- residents
living inside the district who could vote. Since there were no
residents in the district, there was no need to call an
election to spend the money.
They just appointed a board and that was the end
of it.
Q. Now, based on your knowledge, which one of the group
contacted the Secretary of State and set up the election?
A. That I had no knowledge of. I could only guess or
assume.
Q. Well, I don't want you to do that. I want you to
testify about what you know.
Now, you do remember testifying. This is your
third time testifying about this situation, correct?
A. Yes.
Q. You testified in the civil trial. You testified
before the grand jury.
A. Right.
Q. And now you're testifying here.
A. Correct.
Q. Now, do you remember when you testified in the civil
trial and you didn't -- you remember saying that the decision
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Cassandra McCoy, CSR (936) 524-6305359th Deputy Official Court Reporter
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to vote was made up by each person in their own time and in
their own mind, correct? Do you remember saying that?
A. Yes.
Q. Because you don't know when Mr. Jenkins decided to
register, do you?
A. No.
Q. You only know when you did?
A. Correct.
Q. And you can only speak for what was in your heart and
what was in your mind at that time?
A. Right.
Q. Did you knowingly put false information on your
registration form to vote? At the time you did it, did you
believe you were knowingly putting down an illegal residence?
You didn't believe that in your mind, did you?
A. I believed that it was not a clearcut yes or no. I
was told I could go put a tent under the Research bridge and
that was my residence and list that on my voter registration.
Q. And that's what you believed when you put it down,
isn't it?
A. Yeah.
Q. Now, you also believed that if you were in that
location, that residence on the date of the election, that was
okay, too, correct? That there had to be a meeting of your
mind and your presence at one time? Do you remember that being
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significant? Do you?
A. Yes.
Q. Is that a yes?
A. Yes.
Q. And knowing those two things, you did not present
yourself within the district on that election day? You didn't
stay at the Residence Inn, did you?
A. No.
Q. But others in your group did, didn't they?
A. I have no knowledge.
Q. The fact that you didn't stay there and that you
didn't have a presence there, in fact, means you did not merge
your mental state, what you had in your mind to do as far as
your residence, and your physical actions? They did not
intersect that day, did they?
A. The day of the election I was in the hotel for
15 minutes to change clothes.
Q. All right. And did you believe that was sufficient
to establish your residence?
A. No.
Q. So, you consciously did not stay there, did you?
A. Consciously, no.
Q. And that's different from others who felt like if I
am there in the RUD on the night before, on the day of, on the
night after, that they had legally established their residence
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according to all the documents that were given to -- that were
prescribed to you by Mr. Grant; and in your instance and in
other people's instances, what a lawyer told you, right?
A. I'll agree to that.
Q. So, when you filled out that application knowing what
you knew, you were not knowingly, knowingly voting illegally,
were you? You didn't know you were voting illegally? You
thought you might be, but you didn't know that, did you,
truthfully?
MR. WHITE: Objection, Your Honor. If there
could be one question at a time for the witness.
THE COURT: All right. Sustained.
Q. (BY MR. HEATH) You didn't know that, did you? On
the day that you -- on the day that you voted, you did not know
that, did you?
A. No.
Q. And that's the honest truth, isn't it?
A. That's the honest truth.
Q. So, maybe, maybe you were negligent in voting. You
might even have been reckless, but you didn't know for certain
that you were voting illegally, did you? Did you?
A. No. No.
Q. After the election contest, that's when you felt like
you, hey, man; maybe I did the wrong thing, right? After?
A. After, yes.
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Q. After you found out that there was a criminal
investigation and you went, well, I guess, maybe I did do
something wrong here, right?
A. There was enough for the District Attorney to
proceed, yes.
Q. All right. Now, are you sure the District Attorney
proceeded or if the Attorney General proceeded?
A. I do not know for a fact who proceeded on it.
Q. All right. Now, you did appear before a grand jury
here in Montgomery County, didn't you?
A. Yes.
Q. And when -- after you testified, were you compelled
to plead to any sort of criminal offense?
A. No.
Q. So, as you sit before us, you were never charged?
A. Correct.
Q. You were never indicted?
A. Correct.
Q. And as you -- as you sit here with us, you don't
believe you're ever going to be charged or indicted for this
offense; is that right?
A. That one I can't answer.
Q. Now, you do recall, prior to the election, just a few
days before, talking with the publication called the Texas
Watchdog about this election?
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A. Yes.
Q. Do you remember indicating that you were anxious to
rectify or to correct the problems in the RUD? Do you remember
that?
A. Not in the RUD. In the voting for the board.
Q. Yes, sir. And you were anxious to do it?
A. I was -- wanted there to be an open election.
Q. Because your sense of it was that they just kept
being re-appointed without any scrutiny by anybody, right, the
directors of this RUD?
A. That's what I was told by one of the group from the
attorney that there was no need to call an election and they
just re-appointed themselves or whatever. If they voted
amongst themselves, I did not know that.
Q. Now, do you remember reading that article?
A. I remember pulling it up. It was an long article,
but, no, I did not read all of it.
Q. And did you -- did you feel like before you voted
that residency could be determined by the voter? In other
words, the voter determined his residence for purposes of an
election?
A. I've heard all the arguments about the mindset and
that didn't really totally wash.
Q. As far as you were concerned?
A. As far as I was concerned.
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Q. So, you thought you were taking a chance, but you
didn't know that you were wrong, right?
A. Correct.
MR. HEATH: That's all the questions I have,
Your Honor.
THE COURT: Any redirect?
MR. WHITE: No further questions for this
witness.
THE COURT: All right. May this man be excused?
MR. WHITE: He may, Your Honor.
MR. HEATH: No objection, Your Honor.
THE COURT: All right. You are excused, sir.
Thank you.
All right. Ladies and gentlemen, we're going to
break for the evening. And can we see -- be back at 9:00
o'clock again. Thank you very much. Remember the instructions
that the Court has given to you. Please follow the bailiff.
And, again, thank you for your patience and understanding.
Have a nice evening.
(COURT ADJOURNED)
TAB F
TAB G
TAB H
TAB I
TAB J
TAB K
MONTGOMERY COUNTY ELECTIONS
P. O. Box 2646
Conroe, Texas 77305-2646
www.MontgomervVotes. org
election (Simctx.org
Carol Gaultney, cera
Elections Administrator
(936) 539-7843Fax (936) 538-8143
April 19, 2010
CERTIFICATION OF VOTER REGISTRAR
STATE OF TEXAS
COUNTY OF MONTGOMERY
Pursuant to the statewide voter registration list requirements set forth in the HelpAmerica Vote Act of 2002, 42 U.S.C. § 15483 and Sections 13.072(a) and 18.061 oftheTexas Election Code, I, Carol Gaultney, Voter Registrar for the County of Montgomery,State ofTexas, hereby certify that this list of registered voters is comprised of the OfficialState List of Registered Voters maintained by the Office ofthe Secretary ofStatepursuant to Sections 13.072(a) and 18.061 of the Texas Election Code for the electionheld on the 8th day of May, 2010 in the County of Montgomery.
This list represents a best effort to accurately identify all eligible voters within theboundaries of The Woodlands Road Utility District #1. All readily available sources wereused, including Montgomery County Appraisal tax rolls, digital Appraisal District boundaryfiles, and a digital file of geocoded registered voters. This list has not gone through acomplete street comparison approval process.
Voters on suspense are denoted with an *S' at the beginning oftheir certificatenumber. Suspense voters and all voters who have moved will need to fill out a statementof residence card. Their new address will need to be verified that it is within your currentboundaries.
ICERTIFY THAT THIS IS ATRUE AND CORRECTCOPY AS TAKEN FROM OFFICIAL COUNTYRECORDS, AS OF jO/M/AU\*) ,SUZIE HARVEYELECTIONS ADMINISTRAT
