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ACCEPTED
09-14-00458-CR
NINTH COURT OF APPEALS
BEAUMONT, TEXAS
5/15/2015 10:38:04 PM
CAROL ANNE HARLEY
CLERK
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
ORAL
ARGUMENT
REQUESTED
CASEY LAW OFFICE, P.C.

595 Round Rock West Drive
Suite 102
Round Rock, Texas 78681
Telephone: 512-257-1324
Fax: 512-853-4098
stephen@caseylawoffice.us
Counsel for Appellants
Sybil Doyle and Roberta Cook
IDENTITY OF PARTIES AND COUNSEL

Appellants
Trial Counsel
Roberta Cook
and
Sybil Doyle
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
Suite 102
512-257-1324 (phone)
512-853-4098 (fax)
Appellees
Trial and Appellate Counsel
The State of Texas
David Glickler
Jonathan White
ATTORNEY GENERAL OF TEXAS
P.O. BOX 12548
Austin, Texas 78711
512-463-3088 (phone)
512-370-9728 (fax)
ii
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 offensethat
Appellants knew they were ineligiblebeyond 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
iii
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.
2.

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
The trial court erred as a matter of law in denying the motion

iv
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.
Stilwells 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.
McDuffees 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.

clearly proved as a matter of law that no rational jury could
have found the essential elements of the offensethat
Appellants knew they were ineligiblebeyond a reasonable
doubt. ............................................................................................................ 46
4.

REVERSED. ................................................................................................ 47
5.

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
v
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
vi
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
1
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. Commn.
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
2
449 U.S. 361 (1981) ...................................................................................... 48

Statutes and Legislation
Model Penal Code 2.04 (1985) ............................................................................. 47
TEX. ELEC. CODE 1.015 ....................................................................................... 21
Tex. H.B. 879, 72nd Leg., R.S. (1991) ................................................................... 45
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
WEBSTERS NEW COLLEGIATE DICTIONARY (1981).............................................. 25
Articles
Elizabeth Hickey, Bushs lot: no room for real estate
WASH. TIMES, Nov. 19, 1992 ....................................................................... 33
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 Courts 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.
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 States 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 States 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?
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 Stilwells 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 RUDs financial workings and governance, as well as a civil
litigation challenge to RUD leadership by several individuals, including Appellants.
6
4RR.30 ln 10 - 4RR43 ln 13.

Stilwells 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 Cooks 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.
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 Stilwells 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 States 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
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
post-election. 5RR.124 ln 4 5RR.127 ln 16. 5RR.124 ln 24 5RR.137 ln 3.
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?

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.
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,
10
so there was never any elections

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.
11
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
12
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
Appellants 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. 16; 91 ln. 13 92 ln. 21. Cook stood her ground on cross-examination when
13
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 wasnt a doubt in [her] mind. 6RR.101 ln. 15.
SUMMARY OF THE ARGUMENT
-INTRODUCTORY STATEMENTThis 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 debateas in the States mantra of vote
where you live, but, as the legal arguments and facts demonstrate, the legislatures
subjective vagaries, evidenced across the state agencies and courts interpretations,
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.
1
14
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.
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
15

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 Appellees 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 districts honorits
purpose, policy, background, politics, and integrityall to show that the districts
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 States
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.
16
clearly proved as a matter of law that no rational jury could have

found the essential elements of the offensethat Appellants
knew they were ineligiblebeyond 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 illegalto
ascertain his frame of mindbut, 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.
17
There is legally isufficient evidence to find they knew they were ineligible, and the
conviction should be REVERSED.
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 Generals statements, and the Secretary of States opinion,
they were eligible to vote. The States mantravote where you livereflects 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.
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
18
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, counsels 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.
State, 159 S.W.3d 236, 246 (Tex. App.Beaumont 2005, pet. ref'd). Appellate
review functions to prevent convictions not based on proof beyond a reasonable
19
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 courts] 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 courts 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.

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
20
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 Governents 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
21
intention of making that place the person's home.

TEX. ELEC. CODE 1.015.
The problem here, according to the States 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
7 (States opening statement); 5RR.117 ln 25 (McDuffee); 5RR190 ln 6
(Goeddertz); 5RR195 ln 18-19 (Goeddertz); 6RR.40 ln 19 6RR.42 ln 7 (Heath);
6RR.88 ll 14-17 (Cook); 6RR.89 ll 23-24 (same); 6RR.102 ll 14-17 (S. Doyle);
6RR.124 ln 11, 125 ln 1, 144 ll 4, 6, 146 ln 14, (States closing argument below);
Appx., Tab B at 17 (States opening statement in State v. Jenkins trial); Appx., Tab C
at 23 (States 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
22
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. States counsel would have it be a simple vote where you live. 4RR.18 ln
6, ln 7 (States opening statement). But even State counsels own former boss
disagrees. After providing Texas Election Codes 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).
23
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 Floridas
24
statutes to properly define vagrancy. Id. at 161-171. The laws unconstitutional

nature resulted in it casting too broad a net (capturing offenders with various
reasons for lack of employmentfrom 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 livethe
States 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
See TEX. R. EVID. 201(b),(c),(f); See, e.g., Office of Pub. Util. Counsel v. Public Util. Commn., 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
2
25
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. GOVT 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? Websters New Collegiate
Dictionary defines purpose as an end to be attained. WEBSTERS NEW
COLLEGIATE DICTIONARY at 930 (1981). The purpose of the statute does not
qualify purpose as the States purpose (which the State would clearly want). Is
a political purpose de facto invalid? No. But the States 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.
26
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 testifiedalbeit 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 ones 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 nightor no nightsat 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
27
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
28
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 108109. 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
29
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 cant
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 nonresidence 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
30
this law. None of the following voters vote where they live,the States
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.
31
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,
Einsteins 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
32
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 Sheriffs 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 (Einsteins 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
33
These records show that the States mantravote where you liveis
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 Texasaccording to the States definition of vote where
you livebut 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, Bushs 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 Stilwells
testimony (praising the RUD for being a great economic policy idea (Section
2.A.1., infra) vis--vis Appellants desire to investigate and possibly end the RUD by
achieving a majority on the board). This should not be.
34
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
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.
Stilwells 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 Stilwells 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.
35
1.
The majority of Stillwells 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
21 5RR.9 ln 21; 5RR.64 ln 20 5RR.65 ln 1; 5RR.90 95. 5RR.106 ln 6
5RR.107 ln 14; 5RR108 ln 19 5RR.111 ln 18. Stillwell offered irrelevant records
about Appellants friends deed records, including their location on a map. 5RR.39
47. This testimony had zero bearing on Appellants 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;
5RR.65 - 5RR.84; 5RR.99 103; 5RR.103 5RR.106 ln 5; 5RR.107 ln 14 108
ln 18. He addressed the stays of Appellants in the Residence Inn and their voter
registration cards with those addresses. 5RR.20 ln 15 5RR.34 ln 16. He spoke
about the ownership of real property houses by Appellants of property outside the
36
RUD, 5RR.37 (Doyle deed); 5RR.38 (Cook deed)

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 Roberta Cooks exemption was for tax year
2006, and irrelevant to her 2010 declaration. SX-18. No rational trier of fact could
find these two documents probative proof beyond a reasonable doubt of any
essential element.
Stilwell admitted on cross-examination that the mere filing of a voter
registration card does not determine the intent of the voter regarding residence n
the day it is filed, but that it is a mere administrative requirement. 5RR.90 ll 20-21.
This testimony did not carry the States burden whatsoever. Why? Because
the vagueness of the statute and the indeterminate factor, that Appellants were
entitled to chose their residence based on personal, subjective criteria, is impossible
to prove in a criminal setting. See Section I, supra.
This concluded Stilwells testimony, after which the State tried to offer
Richard McDuffee, one of the allegedly illegal RUD voters, to incriminate
Appellants by association. This testimony fared no better.
B.
McDuffees continuously retreated from a clear statement,

other than post-hoc vicissitudes, that his vote was illegal.
37
Likewise he never testified that Appellants knew their

vote was illegal.
Richard McDuffee, one of the ten new voters in the 2010 RUD election,
took the stand for the State in an attempt to show knowledge by association,
basically that because he believed he was ineligible to vote, that Appellants must
have also knew they were not eligible to vote. Quixotically, his testimony never
showed him to be other than the States hopeful smoking gun witness, an insider
who woefully shifted his testimony between multiple criminal trials in nothing more
than a post hoc invention of criminal intent where none previously existed.
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 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.
38
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 crossexamination 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

39
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 doesnt 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
40
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.
41

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.
McDuffees 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

42
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 its 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
43
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, McDuffees
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 attorneys 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 thats the honest truth, isnt it?
A. Thats the honest truth. (emphasis added).
Id. at 218 ll 13-25.
44
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. McDuffees plain equivocations were
insufficient. Stilwells 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 States 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 States case in chief for legal
sufficiency review, and thus this Court should REVERSE the verdict.
45
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.

clearly proved as a matter of law that no rational jury could have
found the essential elements of the offensethat Appellants
knew they were ineligiblebeyond 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
46
anything wrong. 6RR.88 ll 22-23; 89 ll 15, ll 18-20; 92 ln 4, 12, 15, 21; 95 ln 14

(Cook); 6RR.101 ll 10-19; 103 ln 7 (Doyle).
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.

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
47
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 reporters 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
anything wrong. 6RR.88 ll 22-23; 89 ll 15, ll 18-20; 92 ln 4, 12, 15, 21; 95 ln 14
(Cook); 6RR.101 ll 10-19; 103 ln 7 (Doyle). Both Cook and Doyle testified that
The Reporters 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.
48
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 didnt believe she was doing anything wrong
based on seeing [in context of questioning] DX-2 and DX-3); 6RR.91 ln 24
6RR.92 ln 4 (Cook reviewed opinions); 6RR.96 ln 25 6RR.97 ln 14 (Doyle
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.

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.
49
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,
386 U.S. 738, 743, 87 S.Ct. 1396, 1399, 18 L.Ed.2d 493 (1967).
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 counsels 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 counsels 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
50
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 letteron its facebears 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.
51
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 Jenkins trial)) and Adrian Heath (Appx., Tab M at 220,
Tab K (DX-5 in Heaths 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 ithere, Appellants. It directly affects the element of knowledge, as
5
52
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 testimonyat 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
reahalf of the criminal contextthat 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
53
which is requested,6 very plainly shows two things.

First, it shows the definition offered by the Statethat where one lives must
be the location from which one votescannot 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
54
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 counsels 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.
Crim. App. 1993); Harvey v. State, 150 Tex. Crim. 332, 336, 201 S.W.2d 42, 45
(Tex. Crim. App. 1947).
The purpose of this requirement is to allow the court enough notice to
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 Grants 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 States interpretations are vague)). If the Secretary of State
cant provide a clear idea of the law, and this is agreed to by the local district attorneys office,
how can the average citizen survive?
7
55
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 oneto 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.
56
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:
Reverse this case and render judgment of acquittal based on the
unconstitutional vagueness of Section 1.015 of the Texas Election
Code
In the first alternative, reverse this case and render judgment of
acquittal for legal insufficiency on Appellants motion for directed
verdict.
In the second alternative, reverse this case and render judgment of
acquittal for legal insufficiency on the record as a whole;
57
In the third alternative, reverse this case and render judgment of

acquittal on the affirmative defense of Mistake of Law.
In the last alternative, reverse this case and order a new trial for
ineffective assistance of counsel.
Respectfully submitted,
/s/ Stephen Casey
Stephen Casey
595 Round Rock West Drive, Suite 102
Telephone: 512-257-1324
Fax: 512-853-4098
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
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:
58
/s/ Stephen Casey

Stephen Casey
59
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
ORAL
ARGUMENT
REQUESTED

Suite 102
Telephone: 512-257-1324
Fax: 512-853-4098
Counsel for Appellants
Sybil Doyle and Roberta Cook
TABLE OF CONTENTS
1. Judgment and Sentence ................................................................................ Tab A

2. State v. Jenkins States Opening Argument ..................................................... Tab B
3. State v. Heath States 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 Grants testimony .........................................Tab N
ii
TAB A
RECEIVED AND FILED
fPRAECOROjQ
~t---O'CIOCk+=_~
MAY 2 2 2014
SID#: TX05275202
TRN#: 9151289024
DA#:121000.1
Plea of Guilty or Nolo-Jury Waived-Community Supervision
CAUSE NO. 12-03-02585-CR
THE STATE OF TEXAS
IN THE DISTRICT COURT OF
V.
MONTGOMERY COUNTY, TEXAS
'3,tj7t1
Roberta Margaret Cook
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 ofthe 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.
92
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.
b.
c.
d.
e.
f.
g.
h.
Commit no offense against the laws of this State or any other State or the United
States;
Avoid injurious or vicious habits;
Not use or consume alcohol or controlled substances;
Avoid persons and places of disreputable or hannful character;
Work faithfully at suitable employment as far as possible;
Support her dependents;
Remain within the limits of the State of Texas, unless given permission to leave
therefrom;
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
-2-
Minute
93
CAUSE NO. 12-03-02585-CR

i.
k.
1.
m.
n.
o.
p.
q.
r.
s.
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 1st 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; $
-3-
94
CAUSE NO. 12-03-02585-CR

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
Copy
f1fJ 11 , 2014.
received:~L.l.- ~
Defendant
District Clerk of
Montgomery County, Texas,
RIGHT THUMB PRINT
Byftl.!' .1 j 151 ,
Deputy
Minute
Date :_,~_- - - -
"..; ,,';'
-4-
95
TAB B
17
1
2
THE COURT:
record and you may be seated.
3
4
Not guilty will be entered into the
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.
10
So, you may proceed, sir.
11
MR. WHITE:
12
Ladies and gentlemen of the jury, we spent time
May it please the Court, counsel.
13
talking about residence yesterday.
14
in the state of Texas, if you boil it all down, is vote where
15
you live.
16
17
And the general principle
Don't vote where you don't live.

Now, Mr. Jenkins is not a student.
solider.
18
He's not a
And he's not a snowbird.

He's a married man that owns a home, 4,500
19
square foot home, in The Woodlands outside of the Road Utility
20
District.
21
he splits his time fifty-fifty in each one.
22
And he stayed the night of the election in a hotel inside the
23
Road Utility District in order to vote in that election and
24
manipulate the outcome of that election.
25
And it's not a situation where he owns two homes and

He owns one home.
Three of his associates ran for Board for the

Cassandra McCoy, CSR (936) 524-6305
359th Deputy Official Court Reporter
18
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.
5
6
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
10
creating and maintaining the roads in The Woodlands area, very
11
specific area, inside of The Woodlands Township.
12
business district.
13
entirely commercial and that was by design.
14
It's commercial properties.
It's a
Almost
The intent of the Road Utility District was not
15
to tax residents for the roads that people drove on that
16
benefited the commercial properties and the businesses in the
17
area that brought people from outside of The Woodlands into it,
18
into these businesses.
19
that benefited from those roads.
20
The purposes was to tax the businesses
However, Mr. Jenkins did not like the idea of a
21
taxing authority that didn't answer to voters.
22
group, concocted a scheme to take over the RUD.
23
what he did.
24
25
So, he, the

And that was
The three members of the group that ran for the

Board of Directors were Pete Goeddertz, Rick McDuffee, and Bill
19
Berntsen.
And the scheme began in March when those three
filed their applications to become candidates for Board of
Directors.
believe Mr. Jenkins changed their voter registration to 9333
Six Pines Drive, which is a Residence Inn, a Marriott Residence
Inn.
And then rest of the group came on board.
8
9
And those voter registrations were exchanged at

the beginning of April, which is ironically very close to April
10
Fools' Day.
11
purposefully chosen.
12
The Residence Inn was chosen by -- it was

A little play on words.
Residence Inn.
And what's important about it is when
13
Mr. Jenkins and the others declared the residence on these
14
voter registration applications, they swore under the penalty
15
of perjury that that is where they lived.
16
night in that hotel at the time that they swore to that
17
information.
18
They never stayed a
And on the document, it says it is a crime to
19
give false information in order to procure a voter
20
registration, which is exactly what the defendant did.
21
There's no dispute, there's never a room rented
22
by Mr. Jenkins prior to the night of the election.
23
he ever stayed in the hotel.
24
was the requirement by law to register at least 30 days prior
25
to the election and then stayed the night of the election.
First night
Registered 30 days before, which

20
The day after the election, cleared out of the
hotel never to return until something happened.
might imagine, the scheme that temporarily hijacked the RUD,
raised a few eyebrows.
Well, as you
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.
9
10
So, the mission to take over the RUD was not

accomplished.
11
It wasn't completed.
What Mr. Jenkins -- what the defendants did,
12
they inserted themselves into the lawsuit.
13
intervenors.
14
They filed as
MR. HEATH:
Your Honor, may we approach the
16
THE COURT:
Okay.
17
(AT THE BENCH, ON THE RECORD)
18
MR. HEATH:
15
Bench?
We're getting into the -- without
19
approaching the Bench, we're getting into the election contest.
20
He's already talked about it.
21
MR. WHITE:
My understanding was that we're not
22
talking about the findings of fact and conclusions of law of
23
the contest or of the opinion of the appellate court.
24
don't intend to do that.
25
MR. HEATH:
And I
Well, he's already gone through what

21
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
MR. HEATH:
He's already talking about the --
THE COURT:
He wants -- we want the jury to be
frozen.
making a decision based upon what they hear here and the
10
evidence presented and not pouring over decisions that were
11
made by other authorities.
12
MR. WHITE:
Absolutely.
That's exactly what I'm
13
going to go in to.
14
out of it completely.
15
counting the ballots, certifying the election, was the reason
16
that they took -- that Jenkins and the group took actions later
17
on renting additional hotel rooms.
18
19
I'm going to leave the Court's decisions

The fact that they were stalled from
MR. HEATH:
He's talking about the intervention
in the election, Your Honor.
20
THE COURT:
He has a fair opportunity to present
21
what he feels like is the evidence to prove the case which may
22
involved things that exist before, during, and after the
23
election.
24
that motion, that was made by the Defense in limine.
25
-- I'd rather the implication not be the jury -- that some
And I'm going to give him a fair opportunity; but

I don't
22
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.
6
7
THE COURT:
And I
think there are other inferences to be drawn.
8
9
Well, you've -- I disagree.
But you be careful.
You're getting close to an
area that I think it is objectionable and is not fair.
10
Go ahead.
11
MR. GLICKLER:
The only thing I would add is
12
that until that lawsuit was filed, Mr. Jenkins stayed in that
13
hotel one night.
14
point out that he stayed in the hotel multiple times
15
afterwards.
16
that lawsuit was filed, that's when they went back to the
17
hotel.
18
And he spoke last week.
He said he wants to
But the point is, the aggravated fact that once
THE COURT:
Well, just because litigation might
19
have representation, I think that people -- I don't think that
20
that's --
21
22
MR. GLICKLER:
to show that.
23
24
25
I believe the evidence is going
THE COURT:
I think just the outcome of the
MR. WHITE:
Absolutely.
litigation --

23
THE COURT:
-- stay away.
MR. WHITE:
I'm not going to touch it.
(IN THE HEARING OF THE COURTROOM)
THE COURT:
Thank you, ladies and gentlemen, for bearing
6
7
You may proceed.
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
10
was not completed.
11
themselves and tried to intervene to get their votes counted.
12
So, the defendant and his group asserted
And in so doing, they got together and made a
13
plan and came up with additional things that they thought,
14
well, we better go back and cover our tracks; we better rent
15
some extra nights at the hotel; we better make an appearance
16
there and say hello to the staff, drop in even if we didn't
17
have rooms rented; take photos.
18
all of that evidence.
19
You're going to see and hear
There are members of this group that have
20
decided to no longer affiliate with the group and they're going
21
to testify in this case about what happened.
22
thought the ends justified the means at the time, these
23
witnesses will agree that there were other ways to go about
24
what this group did.
25
Though they
And the evidence will show that despite all of

24
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.
try and cheat the system.
going to show.
8
9
He chose to manipulate the vote, to

And that's what the evidence is
In addition, this group, while they were in the

process of trying to get their votes counted, they did things
10
to try to make it appear not only that they were living in the
11
hotel as guests and renting rooms, splitting them between a
12
number of them, they also hid their personal belongings at
13
their house, packed things in boxes.
14
them put their house on the market for a price that it wouldn't
15
sell for.
16
panel, to make it appear when parties went through and the took
17
photos of the homes that they were not living in the home.
18
They tried to make it appear that way.
19
They -- one or two of
They cut the power of their house, the breaker
You're going to be able to see those photos of
20
the inside of their homes that were taken right around this
21
time these things were happening.
22
And I guess the question still probably remains:
23
Why?
24
to take over the RUD?
25
Why did they do it?
Why to take over the RUD?
But why
Mr. Jenkins and his group of people are

25
political activist and they are actively looking for causes to
get involved in.
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.
8
9
10
And despite not living inside the RUD, not
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.
11
The State doesn't have a dog in that fight.
12
But at the end of all the evidence, you will
13
find that the defendant went to this hotel for temporary
14
purposes only.
15
and manipulate the outcome of this election and elect three of
16
the members of his group to the Board and take over the Road
17
Utility District.
18
And the purpose was to vote in this election
And do what?
Shut it down.
In this case, activism of this group crossed the
19
line into lawlessness.
20
criminal implications of this.
He was even sent a warning
21
letter by the DA's office here.
The DA was informed that
22
voters had registered to vote in a district that has no
23
residents.
24
25
Mr. Jenkins was fully aware of the
They sent the letter out informing them of the

law, directing him to the election code.
But the evidence will

26
show that defendant purposefully ignored the law, the law that
we talked about yesterday in voir dire.
3
4
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.
9
10
THE COURT:
opening statement now?
11
12
Mr. Heath, do you want to make an
MR. HEATH:
Your Honor, may it please the Court,
I'll go ahead and make an opening statement now.
13
THE COURT:
Go ahead.
14
MR. HEATH:
Ladies and gentlemen of the jury,
15
Mr. Jenkins, as he sits in that chair today as the accused
16
citizen, took a journey just like his forefathers took a
17
journey across the big ocean to come to a country where one
18
person had one vote.
19
had the right to choose where they reside.
20
not some governmental entity, chooses where they reside.
21
One person.
One vote.
Where a person, and
Now, the facts in this case and the issues in
22
this case are of fundamental importance.
23
right to vote.
24
residence.
25
Where a person
They resonate on the
They resonate on the right to choose your
And if you'll recall in our voir dire, one of

TAB C
22
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.
have a reasonable amount of time to make opening statements.
Mr. White.
10
MR. WHITE:
Thank you.
THE COURT:
Yes, sir.
11
And the lawyers
May it please the Court,
counsel?
12
13
OPENING STATEMENT
14
MR. WHITE:
Ladies and gentlemen of the jury, at
15
jury selection yesterday we spoke a lot about the term
16
"residence."
17
down the street before we continue on too much.
18
And I'll let this fire truck or whatever it is go
We spoke a great deal about concepts like
19
domicile, home, place of habitation, dwelling.
20
mean?
21
differences.
22
the law in Texas is that residence means domicile.
23
place of habitation.
24
25
What do these
They kind of mean the same thing and they have subtle
But in the context of residency, you learn that
MR. WRIGHT:
One's fixed
Your Honor, I would object.
making argument in opening statement.
He's
I think he's supposed to
KAREN D. DESHETLER, CSR

281-723-9090
23
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.
present what they expect the evidence to show.
I give lawyers a little leeway because some of this may infer
evidence they expect to show.
couch it in that's what they expect the evidence shall show,
then that fits with in proper opening statement.
This is a time for the lawyers to

I give them --
And as long as the attorneys
10
objection is noted.
11
Mr. Wright is correct.
12
That is not the final argument stage.
But the
It's -- the statement -- that's correct.

This is not the time for argument.
13
Go ahead.
14
MR. WHITE:
Members of the jury, the law that
15
you will be presented with in this case when you read your jury
16
charge at the end of the guilt/innocence phase of this trial
17
will be that residence means domicile, one's fixed place of
18
habitation to which one intends to return after a temporary
19
absence.
20
selection.
21
you live.
22
knowing before you sat down yesterday.
23
us.
That was a concept that was discussed at jury

The general principal in Texas being to vote where
That's something that you, as a panel, came in
You expressed that to
The place that you go back to.
24
And also in jury selection yesterday, we
25
discussed the situations where it may be hard to define

281-723-9090
24
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.
7
8
THE COURT:
You intend to tie this up as to what
you expect the evidence to show?
MR. WHITE:
In the next sentence.
10
THE COURT:
All right.
11
MR. WHITE:
The situations that were discussed
Overruled.
12
in voir dire where it's hard to determine residence, the facts
13
will show in this case that the Defendant didn't try to vote
14
from a vacation home.
15
ten properties.
16
show that he doesn't have employment that takes him all over
17
the country, moving from place to place with assignments
18
lasting a month or two months or three months.
19
soldier.
20
four-year university.
21
may be a unique person, he's not one of those weirdos that
22
drives around the country in an RV, that sold their home and
23
lives in a recreational vehicle.
24
The Defendant owns one home where he lives with his wife.
25
has a son and a daughter, a residence of 23 years located at
He didn't try to vote from one of his
He doesn't own ten properties.
He's not a snowbird.
The facts will
He's not a
He's not a student living in a
Adrian Heath is not homeless.
While he
He's not one of those folks.

281-723-9090
He
25
43 West Stony Bridge Court in The Woodlands, Texas.
homestead exemption on that property.
perjury to gain that homestead exemption, you swear that you
will occupy that property as your principal residence.
he's done that for the last 23 years.
MR. WRIGHT:
He has a
And under the penalty of
And
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
10
code.
11
THE COURT:
12
Go ahead.
13
MR. WHITE:
Overruled.
Overruled.
At 43 Stony Bridge Court, the
14
Defendant not only has his family, he has his clothing, his
15
furniture, his mementos, his books, his photographs, and all of
16
his other belongings.
17
We're here because the Defendant is a
18
self-claimed political activist.
19
will show that he recruited nine other members in a group who
20
are also political activists in a scheme to elect three members
21
of that group to the board of directors of the road utility
22
district.
23
the indictment, The Woodlands Road Utility District Number 1.
24
25
The evidence in this case
That road utility district being, as you heard in
And the evidence will show that the only effort

that this group of ten made to show legitimate intent to reside

281-723-9090
26
in that hotel was renting two hotel rooms in the RUD the night
before the election.
married women stayed and voted the next morning in that
election.
Supposedly where eight grown men and two
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.
10
There are almost no residential properties in that area,
11
virtually no residential property.
12
commercial and that's by design.
13
road utility district because the purpose of the road utility
14
district the evidence will show was not to burden these
15
citizens and the residence The Woodlands with paying the taxes
16
that would build these roads that would benefit the businesses
17
that decided to locate in the RUD utility district.
18
purpose was for those businesses to pay the taxes that built
19
the roads that bring people and business to them.
20
residents in the area get to use those roads and that's a free
21
benefit to them.
22
businesses in the RUD.
23
by them and not the residents.
24
traffic in the road utility district actually comes from
25
outside the road utility district coming into it.
It's almost 100 percent

There are no residents in the
The
Now the
But the purpose, again, was to benefit the

And, therefore, the taxes would be paid
Almost 60 percent of the

281-723-9090
And
27
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.
unopposed, meaning no one runs for director.
happens there is not an election.
Quite often, these elections are

And when that
That's by statute to not
10
waste taxpayers' funds in having an election if there's no
11
contest.
12
Before we talk about how the scheme worked, what
13
the evidence will show of why this was done, the short answer
14
is that the Defendant philosophically had -- was opposed to the
15
road utility district.
16
found out that there was a lot of public debt because it's
17
expensive to build roads and he was very close to two of the
18
roads in the road utility district.
19
that he wanted some control, wanted some say in that election,
20
believed he deserved to vote.
21
it wasn't for personal gain because directors of the road
22
utility district only make something like $25 a day when they
23
serve.
24
idealogical thing.
25
He had never heard of it before.
He
The evidence will show
And the evidence will also show
It wasn't that sort of thing.
So how was it done?
It was a political and
The scheme was to run three

281-723-9090
28
members of the group to the Board of Directors of the road
utility district.
McDuffee, and Bill Berntsen.
three.
as soon as they got in control.
Those individuals were Pete Goeddertz, Rick

They had one objective, those
They were going to shut down the road utility district
Now, in this group of ten of which the Defendant
self identified himself as the general of the group, they
weren't homeless either.
snowbirds.
They weren't soldiers.
They weren't students.
They weren't
They had residences.
10
owned homes across Montgomery County.
11
Some in Conroe.
12
far as Cut and Shoot.
13
individuals resided at had homestead exemptions on them as
14
well.
Others in Magnolia.
They
A few in The Woodlands.

A couple of them out as
And all of those properties these
15
On March 3rd of 2010, the Defendant swore under
16
penalty of perjury on a voter registration change form that he
17
lived at 9333 Six Pines, which is the address of the hotel in
18
the road utility district.
19
room, never stayed a night there in his life, he swore to that
20
on his voter registration change.
21
thereafter, at the Defendant's direction, most of the group of
22
ten also registered using that same address and swearing that
23
that was their address even though none of them had ever stayed
24
a night at that hotel in their life before.
25
April 1st, April Fool's Day was not intentional.
Even though he had never rented a
On April 1st and shortly

281-723-9090
Now, the date of

There is a
29
provision in the election code that requires you to register to
vote 30 days before the election.
law.
what it was.
the beginning of April.
hotel.
being cute.
words.
better place to stay than the Residence Inn.
10
So they had to vote.
It's just a requirement by
That's pretty much why the time was
The election was on May 8th.
They registered at
What was intentional was the choice of
It was the Marriott Residence Inn.
The Defendant was
Picked this hotel for a reason.
It's a play on
If he was ever called to the carpet for fraud, what

And that's the
reason that you'll hear that it was chosen.
11
There will be no dispute, none of these ten
12
voters ever rented a room at 9333 Six Pines before they swore
13
they resided.
14
any of them rented a room.
15
night before the election, two rooms were rented and eight
16
grown men and two married women, none of them to each other,
17
swore they lived there and voted in the election, swore that
18
they lived in that district when they voted in that election on
19
May 8th.
20
the hotel.
None of them.
Not even a month afterward had

It wasn't until May 7th, Friday
The day after the election they all cleared out of
21
Now, the Defendant -- neither Heath, nor any of
22
the other of the nine voters owned or leased a business
23
property in the district.
24
the district.
25
one common objection, to take it over and shut it down.
No one had any connection inside of
No one paid taxes to the RUD.

281-723-9090
They simply had

As you
30
might expect, this act didn't go unnoticed.
There was fraud
suspected.
take over the road was not yet accomplished.
of the voters inserted themselves into this challenge.
month later, up until that point, no one had set foot back in
the hotel.
two members rented some nights.
you know, we've been careless.
didn't rent enough rooms to support a real legitimate intention
Their vote was challenged, and so their mission to

Eight of the ten
And a
A month later they found the need to do that and

Because the group realized,
We were a little bit cheap.
10
to stay and we certainly didn't buy enough nights.
11
decided to go back and rent as many nights as they could
12
afford.
13
hotel rented them.
14
didn't rent a single night.
15
Residence Inn ever as far as we know up until at least 2011,
16
2012, up until June of this year at least, we know he didn't
17
rent a room at the Marriott Residence Inn that he voted from.
We
And they
So those that could afford to rent some nights in the
18
Those that didn't, didn't.
The Defendant
He's never rented a room at
The group decided they need to make appearances
19
even when they're not paying for a room.
20
and go to the hotel and hang out in the lobby.
21
hello to the staff, try to get their faces recognized.
22
would come together with a group and take pictures.
23
some of the pictures that they took at the hotel.
24
themselves mail to the hotel so that they could pick it up at
25
the front desk.
They would show up

They'd say
They
You'll see
They mailed
And they decided to come up with nonpolitical

281-723-9090
31
reasons for staying at the hotel.
nonpolitical reasons.
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.
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.
Really there were no
There was only one reason that any of
And we know this because there are former
They thought that the ends justified the means
10
at the time.
11
ways to do this, even if they were right in what they thought
12
about the RUD.
13
remedies available to them.
14
this was cheap and fast.
15
They realize they're wrong.
There were other
There were many other ways to do this, legal

Instead, they did this because
Now, during this challenge, photos were taken of
16
the ten voters' homes, inside their homes.
17
photos.
18
members of this group.
19
plan that they had, which was to disguise the fact that they
20
were actually living at their homes.
21
were taken, they made efforts to hide their personal belongings
22
and put them in sealed boxes or lock them in locked closets.
23
Some of them -- a couple of them put their house on the market
24
for a price that wouldn't sale and they didn't sale.
25
of them cut power to their house on the breaker panel in the
You'll see those
They show current, lived-in homes of all the ten

The witnesses will share more of the
Before these pictures

281-723-9090
And many
32
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.
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
Despite not living in the road
10
didn't consider voters.
11
You'll have an opportunity to hear from the RUD.
12
answer questions to the extent that are relevant and you'll
13
decide who is more credible.
14
So they wanted to be those voters.

They can
The State has no dog in the fight on this one,
15
in terms of the RUD versus the Defendant.
16
whether or not the Defendant voted illegally in this election.
17
That's the only thing that's important.
18
available to them, the Defendant chose the voting scheme based
19
on providing a false statement to procure a voter registration
20
and claiming that two rooms over two nights, ten people
21
established their fixed place of habitation, a place where all
22
ten would return to their temporary housing to establish a
23
legitimate intent to make the Residence Inn their home.
24
25
It's a matter of
Of all the remedies
Ladies and gentlemen, the facts in this case

will show that the activism of the Defendant crossed the line

281-723-9090
33
into lawlessness.
And aware of the criminal implications of
what he was doing, the Defendant still did it.
ignored the law and tried to subvert the law through a
loophole.
did the Defendant ever have intention of making the hotel his
fixed place of habitation.
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
10
and help to shut down the destructive practice of individuals
11
like the Defendant exploiting the voting rights.
And after the evidence that you'll hear, at no point
12
Thank you.
13
THE COURT:
14
And I'll ask you after hearing all
Mr. Wright, do you want to make your
opening statement now or you can defer until later?
15
16
He purposefully
MR. WRIGHT:
I will defer my opening statement
until our case-in-chief, Your Honor.
17
THE COURT:
All right.
18
MR. WHITE:
The State calls James Stillwell.
19
(Witness is sworn.)
20
THE COURT:
21
please take a seat.
22
23
Please lower your hand, sir; and
Thank you.
JAMES STILLWELL,
having been first duly sworn, testified as follows:
24
25
Call your first witness.
DIRECT EXAMINATION
BY MR. WHITE:

281-723-9090
TAB D
147
MR. WHITE:
MR. WRIGHT:
THE COURT:
Your next witness.
MR. WHITE:
The State calls Richard McDuffee.
THE COURT:
Richard McDuffee.
Come forward, sir.
(Witness sworn.)
THE COURT:
10
11
You are excused, sir.
Thank you.
Your witness.

DIRECT EXAMINATION
13
BY MR. WHITE:
14
Q.
15
17
He may.
RICHARD MCDUFFEE,
12
16
Yes, sir.
Good afternoon, Mr. McDuffee.

Would you please introduce yourself to the jury?
A.
Richard McDuffee.
I reside in Montgomery County,
Texas.
18
Q.
Where do you live?
19
A.
27907 Hansons Court, Spring, Texas 77386.
20
Q.
Is that in a particular subdivision?
21
A.
Benders Landing Estates.
22
Q.
Benders Lane?
23
A.
Landing.
24
Q.
Benders Landing.
25
Thank you.
And how long you lived there?

281-723-9090
148
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.
10
probably at Mr. Jenkins' place of business.
11
first introduced to him.
It was
I would have been
12
Q.
And when you say Mr. Jenkins, is that James Jenkins?
13
A.
Yes, James Jenkins.
14
Q.
And if you can speak up a little bit.
15
I think the
jury is having trouble hearing you.
16
A.
Sorry about that.
17
Q.
Do you see that microphone in front of you?
18
A.
I see it.
19
Q.
I think that's as far as it goes.
If you can just
20
enunciate into that microphone, I think everybody will be able
21
to hear you in the room as well.
22
I'm going to refer you back to the time period
23
in first quarter of 2010, in the March, April, May area.
24
you remember that period of time?
25
A.
More than I want to, yes.

281-723-9090
Do
149
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?
4
5
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?
10
A.
At some point.
11
Q.
And at this meeting that you mention at Mr. Jenkins'
12
house --
13
A.
Business.
14
Q.
Was it a business meeting?
15
A.
The meeting we had or we ran into people in
16
Mr. Jenkins' business down in Harris County.
17
Q.
Okay.
18
A.
Not in anybody's home or on the street or anything
19
20
21
like that.
Q.
So at Mr. Jenkins' place of business in Harris
County, you met Adrian Heath?
22
A.
Yes.
23
Q.
Okay.
24
25
And was the idea of The Woodlands Road Utility
District and voting discussed?

A.
That would have been the meeting in the time period

281-723-9090
150
you're talking about, yes.
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.
5
6
7
8
I received a call.
Q.
Okay.
Well, first of all, where does Jim Jenkins
A.
He lives in -- I believe south of Grogans Mill Point,
live?
on the south side The Woodlands golf community.
Q.
Okay.
10
A.
Yes.
11
Q.
Okay.
Does Pastoral Pond sound right to you?
And we had been talking about meetings at the
12
office and that may not make sense to everyone.
13
talking about when we say "meetings"?
14
It was going to
A.
What are we
General meetings, election coming up, candidate to
15
support.
16
bond and campaign finance reports.
It was a complaint against an elected official, of
17
Q.
Political meetings?
18
A.
I wouldn't say political.
If there was a candidate
19
that Jim felt that needed to be supported by, then those that
20
take up the banner to go out and canvas or campaign for that
21
candidate for office.
22
Q.
Okay.
23
A.
Tom Curry, Jim Doyle, Bill Berntsen, Pete Goeddertz,
24
25
Who was a part of this group that met?
Adrian, and myself.

Q.
Was Adrian Heath a regular part of this group or

281-723-9090
151
1
2
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.
those.
unless you went by to say hi.
So nothing going on there, then there was no meetings
Q.
Okay.
A.
I wouldn't call them friends.
9
10
11
12
We never had
Was this a group of friends that you met with?

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
13
finance reports, politicians were neglectful in filling them
14
out so people could know what they were spending on.
15
16
17
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.
18
Jim Doyle made a call to my residence, said there was going to
19
be a meeting.
20
Mr. Doyle, Mr. Jenkins -- I'm not sure if I was the third one.
21
Total there was Bill Berntsen -- no, correction -- Pete
22
Goeddertz showed up and Tom Curry was there.
23
believe, the last person that arrived when the meeting started.
I said I'll see if I can be there.
I showed up.
Adrian was, I
24
Q.
Okay.
25
A.
First I heard it from was when Adrian laid out what
Whose idea was this whole RUD thing?

281-723-9090
152
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.
4
5
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.
place of residence to the hotel was at a later date.
10
11
The meeting to meet or the idea floated to change your
Q.
Okay.
Now, you actually ran for a position on the
board; is that correct?
12
A.
That's correct.
13
Q.
What position was that?
14
A.
President.
15
Q.
And the other two positions were going to be filled
16
by whom?
17
A.
Mr. Goeddertz and Mr. Berntsen.
18
Q.
Mr. Goeddertz and Mr. Berntsen?
19
A.
Uh-huh.
20
Q.
Okay.
21
22
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
23
people you can to change their vote to people in the RUD, vote
24
in the RUD, and for us to be elected.
25
off all the debt, turn out the lights, and close the thing
First board meeting pay

281-723-9090
153
down.
2
3
Q.
three of you together would do what exactly?
4
5
So if you were elected to the Board of Directors, the
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.
10
Q.
Okay.
And did you have any knowledge of how much it
11
cost to build and maintain roads and things like that, did you
12
and the two other candidates?
13
A.
No.
14
Q.
Okay.
15
Did you have any understanding of bond issues
and raising capital?
16
A.
No.
17
Q.
And what was the main problem that you had with the
A.
I didn't have any problems with the RUD.
18
19
It was strictly over the tax.
RUD?
I didn't
20
know anything about it until I started reading some and went to
21
a RUD board meeting.
22
needs inside The Woodlands, roads, bridges.
23
would say probably the flyaway was part of that, also, to get
24
the flyaway done off 45 into the parkway.
25
Q.
Okay.
It was basically that the transportation

In hindsight, I
So in terms of the idea to go ahead and change

281-723-9090
154
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.
there could be some issues about this.
not for the RUD board or anything else, there was a lot of us
present at that get-together.
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.
10
Q.
An opinion was formed that, you know,

And at a get-together
And one of the members brought
So the group discussed whether or not there could be
11
consequences to what you were doing to this point; is that
12
right?
13
A.
To the vote.
14
Q.
And was there a consensus that there was a risk?
15
A.
There was a -- like anything you talk, there was
16
like, well, there could be, there may not be, but you don't
17
know until after you're going.
18
forward.
19
20
Q.
You can go forward or not going
Do you recall filling out your change of address on
your voter registration application?
21
A.
Yes.
22
Q.
Do you recall attesting to that residence and
23
swearing to that fact under penalty of perjury?
24
A.
Yes.
25
Q.
Did that give you any qualms to do this?

281-723-9090
155
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.
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.
that correct?
A.
I would say, yes, that's correct.
Q.
Okay.
So the risk was present, but it was played down.
If
Is
Now, you said you received a -- well, actually
10
I'm going to move on to the -- after the election and there was
11
a challenge.
12
A.
Oh, yes.
13
Q.
And at that point there was a -- was there a come
Do you recall that?
14
together -- kind of a come to Jesus with the group of what was
15
going on and what was going to have to be done?
16
A.
It was called and we had a meeting at an attorney's
17
office about 6:00 after his office closed and the little
18
meeting room was packed with people.
19
MR. WRIGHT:
Your Honor, if I can inquire as to
20
what time we're talking about, because I have to renew my
21
objection on remoteness from the date of the election.
22
MR. WHITE:
I'll cover that.
23
THE COURT:
Thank you.
24
25
Q.
(BY MR. WHITE)
And the time period here, was this
shortly after the election?

281-723-9090
156
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.
three candidates that came out with the most votes were whom?
10
A.
11
Mr. Berntsen.
12
Q.
13
And after the ten voted on May 8, 2010, the
The three of us, myself, Mr. Goeddertz and
Okay.
And when did you learn that there was going to
be a challenge to that vote?
14
A.
It was the next RUD board meeting when they were
15
supposed to canvas the votes.
16
the executive offices of The Woodlands Land Development
17
Company.
It was held at 24 Waterway in
18
Q.
And what did you learn at that meeting?
19
A.
Basically we were told we were going to canvas the
20
vote, we would be -- basically there would be new board
21
members.
22
they did not canvas the vote, so basically that was when it
23
became evident that there had been a lawsuit filed.
24
25
Q.
They challenged it that day with the documents and
Okay.
And what did your group do in response to that
news?

281-723-9090
157
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.
fair statement?
8
9
MR. WRIGHT:
Is that a
Your Honor, I'm going to object to
the question about doing anything beyond the date of the canvas
10
because that does not show the state of mind of my client or
11
any of these other people, for that matter, before and up to
12
the date they actually cast their vote.
13
remote and it's not relevant.
14
15
16
THE COURT:
Q.
(BY MR. WHITE)
Overruled.
You can answer the question if you
remember what it was?
17
A.
Please restate it.
18
Q.
Okay.
19
20
21
I think it's too
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.
22
Q.
Okay.
23
A.
I was out of town.
24
Q.
Okay.
25
A.
Came in that night and voted.
I was out of county.

281-723-9090
158
Q.
Okay.
the election.
A.
And let's go ahead and jump back to the day of
You know one or two rooms being rented?
That was what I had learned.
I was not -- like I
said, I was not in the room or in the hotel.
to the hotel and Mr. Jenkins met me at the front door.
in and changed and then basically he rode with me to vote.
Q.
Okay.
Basically I drove
I went
Now, of those two rooms that were rented, you
didn't stay in either one that night is that what you're
testifying?
10
A.
No.
11
Q.
And the first night you stayed in the Residence Inn
12
overnight was when?
13
A.
Never.
14
Q.
Yet, you did go back to the Residence Inn, didn't
16
A.
Yes.
17
Q.
And what did you do there?
18
A.
Showed up for breakfast, stayed in the little area
15
you?
19
they had for food and stuff and visited with others who were
20
there that morning.
21
time.
22
home.
A couple of times came back in the evening
Stopped in for a while.
Made my appearance and went
23
Q.
Who else was there?
24
A.
It varied from night to night.
25
I know there was a
challenge to the --

281-723-9090
159
Q.
Could you repeat?
THE COURT:
Go ahead.
4
5
Q.
(BY MR. WHITE)
It varied from night to night.
After varies from night to night, go
ahead.
A.
just a show.
there were more rooms rented than two.
paid for a room.
I mean, I had things to do at home; so this was all

I know after an attorney chastised Mr. Jenkins,
I know Mr. Goeddertz
Tom Curry, I think even his wife were renting
10
rooms on Friday, Saturday, and Sunday.
11
went there one evening and dropped off in the Allison boys'
12
rooms some clothes and put them in the closet and left.
So it was -- I know I
13
Q.
Just dropped your clothes off in the room and left?
14
A.
Uh-huh.
15
Q.
And what was the purpose of that?
16
A.
Show presence that you've been in the hotel, no
17
matter if you weren't the one renting the room.
18
also was see you at breakfast.
19
taken.
20
see the front page of what was on the Conroe Courier and the
21
Houston Chronicle, having mailed forwarded to and held at the
22
front desk so you could go show your face and collect your
23
mail.
The same one
The cameras and pictures being
Make sure the newspaper was being displayed.
You could
24
Q.
What was the purpose of all that?
25
A.
Giving the impression you were living in the hotel.

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You had mail being delivered there.
You were coming and going.
3
4
Q.
You had clothes there.
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
7
8
9
happened?
A.
From what I learned since, I was there that night
they had two rooms with ten people listed that were staying
10
there the night.
11
were married.
12
Q.
And those women were whom?
13
A.
Mr. Doyle's -- Sybil Doyle and I do not know his
14
Two of them were women and two of the women
daughter's name, her married name that is.
15
Q.
But his daughter is Roberta Cook, is that her name?
16
A.
Roberta.
17
Q.
Okay.
18
A.
Yes.
So his wife and daughter were the two women?
19
MR. WHITE:
If I may approach the exhibits.
20
THE COURT:
All right.
21
22
Q.
(BY MR. WHITE)
I want to show you, Mr. McDuffee,
some photographs starting with this one right here.
23
Where was that photograph taken?
24
A.
That would be at the Residence Inn on Six Pines.
25
Q.
Okay.
Can you identify the individuals?

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A.
Jim Doyle is the gentleman in the white shirt.
mean, Jim Jenkins is in the white shirt.
from him, the black shirt.
Mr. Doyle.
other gentleman at the table is Tom Curry.
Jim Doyle is across
Mr. Heath is sitting past
And it's a little hard, but it appears to be the
Q.
Okay.
A.
It looks to be -- I don't see any food plates or
And was this a posed photo?
anything else.
shot as you can get.
It was get as many people's faces in the camera
10
Q.
Okay.
11
A.
Correct.
12
Q.
Okay.
13
A.
That is myself there doing some paperwork.
14
Q.
Okay.
15
16
And this just reverse angle?
Who's this young man here?
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
17
files or may have been even one of my own family member's files
18
of security work.
19
Q.
Okay.
20
A.
I did mutual funds and such investments.
21
Q.
Okay.
22
A.
Correct.
23
Q.
And I don't know if you can tell on this document
You did financial work?
Is this you, again, right here?
24
what it is, but what was the purpose of holding up this
25
document?

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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.
just a prop.
Q.
Tell us about Tom Curry back here?
A.
Mr. Curry is deliberately holding up an envelope he
This is
I pulled it out of the file cabinet.
mailed to the Residence Inn showing his name and the address at
the Residence Inn on Six Pines.
9
10
11
12
13
14
15
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
16
take pictures and get as many faces, again, in the picture.
17
The Allisons are here.
18
The front one here is washed out.
19
would be.
20
21
Q.
That's Mr. Jenkins in the blue shirt.

I couldn't identify who that
But it was part of the intervenor of the voters.

Is this one of the newspaper shots you were talking
about?
22
A.
Correct.
23
Q.
I want to talk about you holding your business papers
24
specifically.
25
a connection between your business, your work, and the road
Was there a reason that you were trying to make

281-723-9090
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1
2
utility district?
A.
Yes.
I mean, I had all kinds of fliers and brochures
I would carry with me, pamphlets I could pass out.
from the company to read over as far as new products that were
going to be offered.
6
7
Q.
Okay.
Let me take a jump back out.
Letters
What was the
reason -- what was the real reason --
A.
It was a prop.
Q.
-- for -- I'm sorry.
10
A.
Okay.
11
Q.
What was the real reason for changing your address to
12
Let me jump way back out.
9333 Six Pines?
13
A.
Because of the RUD voting.
14
Q.
Okay.
15
16
At some point, did the group decide that the
reason of voting in the RUD was not enough?

A.
I don't --
17
THE COURT:
You understand that question, sir?
18
MR. WHITE:
Let me rephrase it.
19
20
Because I don't
think anyone understands it.

Q.
(BY MR. WHITE)
Did the group determine that there
21
was a need for -- another reason besides voting in the RUD to
22
move to the hotel?
23
A.
The group did not decide that, no.
24
Q.
Okay.
25
A.
That was a called meeting at a lawyer's office to

281-723-9090
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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.
offer to a potential client.
10
Q.
I had six different lines of things I could
So instead of staying at home in Spring with your
11
wife or your family, you would stay at the Residence Inn.
12
would be the reason?
13
A.
Quicker access to the public.
14
Q.
Was that true?
15
A.
No.
16
Q.
In the slightest, was that true?
17
A.
No.
18
Q.
Okay.
19
20
That
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,
21
Mr. Jenkins' excuse is he needed to get away from wife and
22
grandkids so he could work on his programming.
23
he's self-employed, had his own company repairing stuff and
24
he -- that was his excuse.
25
men and they were living at home with family with their younger
Mr. Curry here,
The Allison boys were both young

281-723-9090
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siblings.
their own.
stories.
Q.
So only makes sense that they wanted to be out on

I will report that mine was the weakest of all the
I was told to go home and break it up.

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.
10
Q.
You understand that now as you sit there?
11
A.
Yes.
12
Q.
And was the Residence Inn in any way, shape or form a
13
residence to the definition in the election code?
14
residence to you?
Was it a
15
A.
No.
16
Q.
Is that hotel a place that this group returned to?
17
A.
We made a presence there.
The Allison boys actually
18
rented a room and they were staying there on a fairly regular
19
basis.
20
Saturday and Sunday, you got a deal.
21
but none of the rest of us.
22
Q.
The Currys did rent a room.
Like I say, Friday

You got three for two,
And then after that, after those rooms had been
23
rented and then after this legal matter had been resolved,
24
where did everybody go?
25
A.
Back to their original domiciles.

281-723-9090
166
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.
high and I was her means of getting to and from school after
practices and such.
10
come and go.
11
Q.
12
Daughter was in junior
I was basically the one who had freedom to
That sounds like you had responsibilities to your
family at home?
13
A.
Oh, yes.
14
Q.
Now, after the whole election was done, the whole
15
civil matter was resolved, did you understand and learn at some
16
point that there was a criminal investigation?
17
A.
Yes.
18
Q.
And did you receive a call inviting you to testify at
19
20
21
Grand Jury?
A.
I received a call that I could come and testify for a
Grand Jury, yes.
22
Q.
And what was your response to that invitation?
23
A.
I was there on time and ready to testify.
24
Q.
Were you promised anything for you to appear and
25
testify at Grand Jury?

281-723-9090
167
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?
10
A.
I have never been served that I was under indictment,
12
Q.
Okay.
13
A.
No.
14
Q.
And was that a result of an agreement you had in
11
15
16
17
no.
Have you ever been arrested?
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.
18
MR. WHITE:
19
MR. WRIGHT:
20
23
24
25
If I may, Your Honor.
I have a few
questions.
21
22
Pass the witness.
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

281-723-9090
168
that if I wanted to come and testify, I was to come and
testify.
rainy, bleak day and was ready and willing to tell them just as
I'm talking to you.
5
6
7
Q.
And I showed up an hour and a half before time on a
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
10
go through names, but it was several of the -- several of them.
11
But every one of them had been reached by somebody else and
12
basically I became the target on my back because I had
13
testified.
14
15
16
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
17
of them later, if they would talk to me, that it was my idea.
18
They made me the ring leader.
19
20
Q.
and I got a few questions.
21
22
23
I want to go back to the beginning of your testimony,

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
24
attended some, but I never kept a dossier of who was there and
25
who wasn't there.

281-723-9090
169
Q.
Okay.
Were those really called by Jim Jenkins as far
as the Republican leadership committee or council, the RLC?
you remember that?
4
5
A.
I went to meetings.
Do
I never considered myself a part
of it.
Q.
Okay.
A.
I was more -- the RLC, if I remember right, was way
8
9
back when I ran for precinct chair in the '80s, '90s -Q.
Okay.
And that group was established by Jim Jenkins
10
and so the people that were still meeting with Jim Jenkins had
11
been kind of related to that group, right?
12
A.
13
three years.
14
Q.
People came and went.
Okay.
I mean, I left the county for
So you do remember a meeting with -- a meeting
15
where Adrian was there at the Montgomery County library in The
16
Woodlands?
17
A.
I can't deny it.
18
Q.
Okay.
Now, what was it that -- okay.
19
focus on two things.
20
after the election.
21
22
23
I'm going to
Before the election versus what was said

Okay.
So I'm going to talk to you about
Okay?
You said you first found out about the RUD

district at a meeting at Jim Jenkins' office?
24
A.
Correct.
25
Q.
Okay.
And so what were you -- what were you told

281-723-9090
170
1
2
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.
6
7
8
9
Q.
So I arrived at Mr. Jenkins' office.
What did you -- what did you learn there?
put into your mind in that meeting?

A.
I had no clue.
What was
Something had to be done.
Basically it was a little hard to catch on because
Mr. Heath came in, made -- about the RUD board, which I
10
couldn't give you all the details of even what he said that
11
night.
12
And best as I remember, Mr. Heath left, Mr. Goeddertz got up
13
and made a comment to Mr. Jenkins, that he didn't think it was
14
proper and he left.
And a short time after that, I wandered
15
out the front door.
There was not any definite plans.
16
just like this is a RUD board.
Mr. Jenkins took over and the two of them had an issue.
17
18
19
MR. WRIGHT:
It was
If I may approach the Elmo, Your
Honor.
Q.
(BY MR. WRIGHT)
Do you see this Defendant's
20
Exhibit 31.
21
Abatement for Montgomery County.
It's called -- entitled Application for Tax
22
A.
Yes.
23
Q.
Okay.
Can you read that?
And do you recall learning about that time
24
about this tax abatement that the Laukiens had on their
25
property inside the RUD?

281-723-9090
171
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.
that was handed out.
didn't have a handouts about here's the agenda for the meeting
tonight.
10
Q.
As far as any paperworks, there was nothing

These meetings, they were orally.
We
Well, did you then follow up, based on what you
11
learned in the meeting, and discover a problem or what you
12
seemed to be a problem with the abatement for the Laukiens, a
13
tax abatement?
14
A.
Where I got the first clue about it, I can't tell
16
Q.
Okay.
17
A.
What sparked my interest was a witness in the civil
15
you.
18
trial and the last comment he made leaving the witness stand
19
and he made a comment that his brother-in-law, Mr. Laukien,
20
that the building in question was --
21
Q.
Excuse me.
But I'm asking you about what happened
22
23
happened after the election?
24
25
A.
Are you talking about something that
This was after the election when I discovered -- when
I went and did my own investigation.

281-723-9090
172
Q.
Okay.
A.
Before the election, there was not any investigation
on me.
Q.
get at.
decided to put your name on the ballot to run and then change
your registration?
8
9
A.
Oh, okay.
Okay.
Well, so that's what I'm trying to
What was in your mind before the election where you
Where I got this part of the information, I cannot
state affirmatively that this gentleman and his wife were the
10
only two by the court ruled to be registered voters.
11
was -- refresh my memory.
12
I believe Mr. Heath, he went and found by a simple search that
13
there was six other residents of Texas residing inside the RUD
14
board.
15
is the RUD lawyer -- that since it was strictly commercial,
16
there could be no permanent residence in the RUD and that
17
somebody could vote in it.
18
Q.
19
by who?
20
A.
Now, that
So I'm not trying to talk around it.
But they had determined, including their lawyer -- this
Okay.
So that is the information that you were told
By Adrian?
Who told you that?
I'm truly trying to remember.
But the only meeting I
21
remember being with Adrian was at Jim's office on that evening
22
and the residential information would have come up via Jim at
23
his office.
24
25
Q.
All right.
What I'm trying to get at for this jury
because Adrian is the one on trial here --

281-723-9090
173
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.
registration is the person who brought the information.
Who did the research at the county tax voter
Q.
Okay.
10
A.
And I do not believe it was Jim.
11
12
leave it there.
Q.
Okay.
So I'm going to
I cannot answer any further than that.

Well, so what you're remembering, I know it's
13
been a long time, three years or more, you know.
14
had learned was the road district was being operated and they
15
said, we don't have elections because there's no voters and
16
somebody, you don't remember who it was, came up with a list
17
and said, hey, there's a bunch of voters, there's six or eight
18
voters and so they ought to have an election, right?
19
the gist of, like, the first meeting?
20
A.
So what you
Is that
That was brought up to -- from what I remember, their
21
attorney and they did a search and they decided they were going
22
to have to spend the money and have an election.
23
Q.
Okay.
24
A.
And that was when it was put on the ballot.
25
Q.
But you didn't talk to their attorney yourself,

281-723-9090
174
1
2
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.
5
6
7
8
9
10
11
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
12
probably have only had in person, in all the times, the first
13
time I met Adrian, I'm going say maybe 12 times we crossed
14
paths.
15
16
17
18
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.
19
Q.
Who was that?
20
A.
Names and me do not stick together.
21
Q.
I know the feeling.
22
A.
You can probably tell me.
23
He's on the Texas Supreme
Court now.
24
Q.
Oh, John --
25
A.
John Devine.

281-723-9090
175
Q.
John Devine, yes.
Okay.
John Devine?
A.
You had a meeting or at least talked to
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.
received a letter from the attorney's office.
And by that time, each one of us had
Q.
Okay.
A.
Phil Grant, the first assistant district attorney.
10
Q.
You knew who he was at the point?
11
Who was that letter from?
He was the first
assistant DA; is that right?
12
A.
Yes.
13
Q.
Okay.
14
A.
Basically cautioning us that voting in the election,
So what did that letter say?
15
there could be criminal charges, civil trial.
16
all the details, but it was basically saying you're under the
17
microscope.
18
19
Q.
I don't remember
We're watching.
Okay.
And so did you discuss the letter that you got
from Phil Grant, did you discuss that with Judge Devine?
20
A.
No.
21
Q.
It came after?
22
A.
I was eavesdropping on a conversation he was having
23
with two of the other potential voters.
24
Q.
Were they discussing the DA letter?
25
A.
They had brought the letter and had handed it to him.

281-723-9090
176
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?
remember when you filed to run?
A.
Yes, I remember because I was at Jim Jenkins' office.
8
9
10
11
Do you
MR. WRIGHT:
Okay.
If I can approach,
Mr. McDuffee.
Q.
Number 2.
(BY MR. WRIGHT)
I'll show you State's Exhibit
That's an application for a place on the ballot?
12
A.
Yeah.
13
Q.
And you haven't seen this in a long time, right?
14
A.
No.
15
Q.
Does that refresh your recollection that on March
I haven't seen it in a long time.
16
the 3rd, 2010, you signed saying I'm going run for a place on
17
the May 8 election?
18
A.
Right.
19
Q.
Okay.
And so was that -- a decision to fill that
20
form out, was that made after you talked to Judge Devine and
21
got the letter from the DA or before you talked to the Judge
22
and got the letter from the DA?
23
24
25
A.
That would have been before.
signing of that.
Q.
I mean, the sign -- the
That would have been before the party.
All right.
So you made a decision to go sign up and

281-723-9090
177
run for that board before you even talked to Judge Devine about
it?
3
4
5
6
A.
If my memory is correct, the letter came out after
the election that month.

Q.
There was a --
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.
10
A.
Yes, it was before -- this letter was before the
11
letter where I sent in the application to be president of the
12
RUD board.
13
nervous.
14
15
Q.
This is April.
That's okay.
I'm sorry.
I'm getting a little
You're not a professional.
Don't
worry.
16
So is this -- well, do this first.
17
Is this a true and correct copy of the letter
18
that you testified about from Phil Grant --
19
A.
Correct.
20
Q.
Okay.
21
Who works for Brett Ligon, the district
attorney, at the time.
22
A.
Still is.
23
Q.
Right.
24
A.
As far as I know, yeah.
25
Q.
And that was received by you sometime shortly after

281-723-9090
178
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.
be admitted in the case.
9
10
12
BY MR. WHITE:
14
Q.
17
18
19
Can I take the witness on brief voir
THE COURT:
All right.
VOIR DIRE EXAMINATION
13
16
MR. WHITE:
dire?
11
15
I ask that it
Mr. McDuffee, I'm taking a look at the Defendant's
Exhibit 26.
A.
Is this the letter that was sent to you?
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?
20
A.
Yes.
21
Q.
Okay.
And this would have been the letter sent to
22
you, but you couldn't say whether or not this was the actual
23
letter that you received?
24
25
A.
Just the body of it.
I mean, First Assistant Phil
Grant, district attorney's office.
And it discusses what I

281-723-9090
179
remember in the paragraph, the first paragraph there.
district attorney's office and they received an official
complaint about it, alleging fraudulent voter registration.
THE COURT:
THE WITNESS:
The
Can you repeat the last sentence?

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.
of May 8th.
10
11
Q.
It says for the upcoming election schedule
(BY MR. WHITE)
And does this letter appear to you be
altered in any other way besides the address box?
12
A.
No.
13
MR. WHITE:
14
document is hearsay.
15
it.
Your Honor, technically this
That would be the only issue we have with
16
THE COURT:
17
MR. WRIGHT:
Well, it is, isn't it?

It is, but we're not offering it
18
for the truth of the matter asserted.
19
state of mind.
20
he did this; and this is one of the items he said he had
21
information on, the letter from the DA.
22
produce that and help refresh his recollection, also.
23
state of mind.
24
25
We're going to show the
They were asking him what was he thinking when
MR. WHITE:
So I'm trying to
Show his
I think the timeframe may be off on
that, but he could just ask the witness what his state of mind

281-723-9090
180
was after receiving the letter.
2
3
THE COURT:
That would be fine.
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.
witness and, frankly, it's going to come up with the other
witnesses and even my client.
think.
We're going to show the state of mind of this
So it's central to this case, I
10
THE COURT:
Answer?
11
MR. WHITE:
The state of mind of this voter,
12
this voter registered well prior to the date of receiving this
13
letter.
14
document.
15
what his state of mind was after receiving the letter.
16
wouldn't mind that at all.
17
MR. WRIGHT:
So he made his mind up to act prior to receiving this

It is hearsay.
18
letter.
19
here is illegal voting.
20
trial.
I don't mind if he asks the witness

I
He voted after receiving the
So it goes to his state that -- and what the charge
21
And it's that May 8 vote that's on
THE COURT:
All right.
But I guess that would
22
be all well and good if Mr. McDuffee was the guy charged with
23
this crime right now, but that's not what we're talking about.
24
We're talk about that Defendant.
25
Defendant?
So what's the point for this
I mean --

281-723-9090
181
MR. WRIGHT:
THE COURT:
the planet, but that man.
MR. WRIGHT:
He's objecting.
Not the other 6 billion people on
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
10
hearsay document admitted.
11
the ball and we're talking about a crime charged with the
12
Defendant.
13
ball there.
14
hearsay.
Okay?
16
17
18
Let's focus on that.
Thank you.
15
But again, let's keep our eye on
Keep our eye on the
But the objection is sustained for
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?
19
A.
It appears to be the letter I received.
20
Q.
Okay.
21
letter?
22
A.
And did you talk to Adrian after you got this
The night the letter was discussed at the
23
after-election party for those who worked on it, I do not
24
believe Mr. Heath was present.
25
of it during the meeting.
There was no general discussion
It was a party thanking us for

281-723-9090
182
getting out and trying to get him elected.
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.
It wasn't for
And if we go to -- hang on a second.
to show you what is already admitted as State's Exhibit
Number 7.
Get it right up here close.
8
9
I want
Is that a true and correct copy of your voter

registration on April the 5th of 2010?
10
A.
Yes.
11
Q.
And so you had already -- and was this a change of
12
your voter registration or was this the first time you
13
registered?
14
A.
This would have been the change.
This is the
15
residence here, mailing address, residence here.
16
have been the change there.
17
18
Q.
Okay.
That would
And so you had been voting before from another
address; is that right?
19
A.
Hansons Court, yes.
20
Q.
So then you changed it to Six Pines on April the 5th
21
of 2010.
Okay.
And then you got this letter around
22
April 22nd, 23rd, right?
23
A.
Correct.
24
Q.
And then you went ahead and you voted anyway?
25
voted on May the 8th, anyway; is that correct?

281-723-9090
You
183
A.
Yes.
Q.
Okay.
We all did.
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.
8
9
Did you cast your vote based on what
Adrian told you?

A.
I'm trying to get an answer for the Court and the
10
ladies and gentlemen.
11
we were at Six Pines, we already agreed that we were going to
12
vote mentally.
13
Q.
Once we had changed our address and said
Well, let me go further down the road.
Okay?
You
14
had said in your testimony that you talked to a lawyer who
15
said, well, it could be 50/50 to go register at the hotel and
16
vote from there.
Is that what you said earlier this afternoon?
17
A.
I didn't talk to the attorney.
18
Q.
Okay.
19
A.
It was the Allison family who brought the letter,
20
presented it to the attorney, and he was reading it over.
21
was not reading it to me.
He
22
Q.
Okay.
23
A.
And I was picking up their conversation, so it was
24
25
not directly to me.

Q.
Okay.
Well, was this Judge Devine?

281-723-9090
184
A.
that --
Q.
This was Judge Devine.
Okay.
That was the only attorney
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.
A.
Did I understand your right?
There was never any consensus on anything that this
group did.
you sign a contract, you're going to sign here.
cheerleader would have been Mr. Jenkins.
10
11
Q.
You either did it or you didn't.
Okay.
you went and did it anyway, right?

A.
I did.
13
Q.
Okay.
15
16
The
So then -- so wasn't really a consensus, but
12
14
There was no will
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.
17
Q.
Did they give you a name of the attorney?
18
A.
I would have to assume it was the only attorney I had
19
20
known that Mr. Jenkins ever used, Mr. -- attorney Eric Yollick.
Q.
Eric Yollick.
21
22
But you didn't talk about before you made the

vote to Eric Yollick yourself, right?
23
A.
No.
24
Q.
Okay.
25
Okay.
Now, was the belief that you had formed when
you filled out that voter registration at the hotel and you

281-723-9090
185
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?
what's the relevance here for that question for this trial.
MR. WRIGHT:
So
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.
10
THE COURT:
Okay.
11
MR. WHITE:
I would say it seems that we're
12
Any response?
covering the same material over and over again now.
13
THE COURT:
Again, the jury is going to be
14
voting on what the Defendant's -- whether the Defendant knew
15
that he was either eligible or not eligible to vote.
16
the key.
17
18
That's
And the objection is sustained.

Next question, please.
Q.
(BY MR. WRIGHT)
Okay.
Then I want to go to the time
19
after the election.
20
after the election to The Woodlands Land Development Company
21
offices in their building and that's where they were canvassing
22
the vote and you thought you would get sworn in, I guess, as
23
the president of the board, right?
Okay.
I think you testified you went
24
A.
That was the assumption, yes.
25
Q.
All right.
And then you found out, no, there is a

281-723-9090
186
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.
A.
7
8
9
10
11
Who was that?
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.
12
Q.
All right.
13
A.
And there had to be more than two rooms rented for
14
20 people --
15
Q.
Okay.
16
A.
-- for ten people.
17
Q.
All right.
18
19
20
21
Now --
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
22
before the election, right?
23
this, register, and then you went and voted.
24
you found out it was being contested, it was like, oh, well, we
25
may be in hot water.
You thought, well, we just go do

And then after
That was news to you, wasn't it?

281-723-9090
187
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.
and daughter.
Q.
Jim Doyle was there for his wife
They were not present.
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,
10
Mr. Yollick through Mr. Jenkins, oh, you're in hot water.
11
can't did that, right?
12
A.
You
It wasn't like afterwards you couldn't do this.
13
was, like, okay, it's done and this is what we got to do to
14
cover.
15
Q.
Okay.
16
A.
Make the story plausible.
17
Q.
Then did you believe you were committing a felony
18
when you went and cast that vote on May the 8th?
19
A.
No.
20
Q.
Okay.
21
A.
Could not say definitely who did.
22
Q.
Okay.
23
24
25
It
Who told you to drop clothes off at the hotel?
Who told you to go take pictures or sit in
pictures with the newspaper up?

A.
Who told you that do all that?
Again, I cannot say definitely who said it.
guess, but I'm not going to be guessing.
I could
But we were to make

281-723-9090
188
our presence known.
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.
5
6
7
Q.
Okay.
Pictures, breakfast, playing basketball,
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.
10
Q.
And is that when he had you make up the story about
11
why you were living at the Residence Inn and he told you your
12
story was not good enough, you had to beef it up or something?
13
A.
That was after we lost the first trial, yes.
14
Q.
Okay.
So it was Mr. Yollick who told you that you
15
needed to work on your story of why you were there; is that
16
right?
17
18
19
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
20
actually pretty stupid advice to go back and try to stay at the
21
hotel and take clothes over there?
22
23
24
25
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

281-723-9090
189
comes up and you start talking to Mr. Yollick or Mr. Jenkins
about this.
was before you cast the vote, right?
A.
It was very different than what your state of mind
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.
8
9
MR. WRIGHT:
this witness, Your Honor.
10
That's all the questions I have for

I pass the witness.
REDIRECT EXAMINATION
11
BY MR. WHITE:
12
Q.
Mr. McDuffee, Mr. Wright asked you whether it was
13
news to you that you were in hot water and suggested that
14
several prominent people, attorneys perhaps, judges, told you
15
that it's okay to go do this.
16
figure, any official tell you it's okay to go do this?
Did anybody -- did any judge or
17
A.
No.
18
Q.
Did any official even suggest that it's okay to go do
20
A.
No.
21
Q.
The letter from Phil Grant, how did you interpret
22
that letter?
23
A.
19
this?
I want to keep the answer simple.
24
a shot across the bow.
25
intentions.
It's kind of like
You kind of start wondering.

281-723-9090
Your
190
1
2
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.
A.
Again, it was, you know, you're kind of playing with
What was your takeaway from that conversation?
10
fire and you don't know who started the fire.
11
is it going to be a little birthday candle or is it going to be
12
a blazing building.
13
14
Q.
In other words,
Now, are you sure that he said that and he didn't say
it's okay to go do this?
15
A.
He never said it was okay.
He indicated it depended
16
on who was behind it, who initiated it as to how much it could
17
come back.
18
19
Q.
Based on what you overheard, did you believe that you
could be prosecuted?
20
A.
I felt on whoever was the moving force behind it to
21
begin with had to be connected.
22
information so quickly.
23
fast.
24
25
Q.
How did they get the
Who put them on to the accusation so
Did you believe you could be prosecuted based on what
you heard?

281-723-9090
191
A.
It was always there, but you kind of downplay it when
you're with the group.
that didn't vote.
Q.
You know, you don't want to be the one
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.
10
MR. WHITE:
11
12
13
14
RECROSS-EXAMINATION
BY MR. WRIGHT:
Q.
Didn't Phil Grant say to you this is for
informational purposes only?
15
16
No further questions.
MR. WHITE:
Objection, Your Honor.
Hearsay.
is just reading from the statement.
17
THE COURT:
18
You can ask him what his perception is.
19
Q.
(BY MR. WRIGHT)
Sustained.
What -- what did you perceive --
20
well, let me ask it -- let me ask it this, you've been asked
21
this question by the State.
22
in authority, and tell you you cannot vote on May the 8th in
23
that election that you registered to vote?
24
do that?
25
He
A.
Did anybody come to you, anybody
You cannot legally
No one came to me pointblank and said you cannot

281-723-9090
192
vote, because I did vote for the college bond.
some bond issues at the same day at a different location.
3
4
5
6
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.
10
So you voted in two elections on that
May 8th?
11
A.
Correct.
12
Q.
At the Six Pines address?
13
A.
Yes.
14
Q.
The hotel address?
15
A.
Yes.
16
17
The college had
MR. WRIGHT:
Okay.
Thank you.
I pass the
witness.
18
THE COURT:
Anything else?
19
MR. WHITE:
No further questions.
20
THE COURT:
May this man be excused?
21
MR. WHITE:
Yes, Your Honor.
22
THE COURT:
You're excused, sir.
23
Ladies and gentlemen, let's just take like a
24
five-minute break here and try to see how much we can do today.
25
Relax, stretch your legs, refresh yourself.

281-723-9090
Thank you.
We'll
TAB E
170
(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:
7
8
Please have a seat.
Thank you.
RICHARD MCDUFFEE,
DIRECT EXAMINATION
10
BY MR. WHITE:
11
Q.
Good afternoon, Mr. McDuffee.
12
A.
Good afternoon.
13
Q.
Please introduce yourself to the jury.
14
A.
Richard McDuffee.
Spring, Texas, is my residence.
15
Lived in the county for about five years now again.
16
time.
17
Q.
And do you go by Richard or...
18
A.
Most people call me Rick.
19
Q.
Okay.
20
My second
Could you spell your last name for the court
reporter?
21
A.
M-C-D-U-F-F-E-E.
22
Q.
Mr. McDuffee, you were just telling us about how long
23
24
25
you've been a member of the community.

A.
Approximately five years.
What was that again?
We were in the county for
seven years and left for three to North Texas and moved back
171
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.
10
Q.
Mr. McDuffee, do you know the defendant, James
11
Jenkins?
12
A.
Yes, I do.
13
Q.
And do you recognize him in the room sitting at
14
defendant's table?
15
A.
Yes, I do.
16
Q.
How did you first hear about The Woodlands Road
17
18
Utility District?
A.
I received a call at my residence and saying there
19
was going to be a big meeting at Jim's place and that if I
20
could make it to be there that evening.
21
Q.
And did you attend that meeting?
22
A.
Yes.
23
Q.
And do you recall the month and year of this meeting?
24
A.
Best of my recollection it would have been in
25
I attended that meeting, yes.
probably March of this year.
Correction.
You can tell I'm a

172
1
2
little nervous.
Q.
It's okay.
Take your time.
March of what year, Mr. McDuffee?
A.
2010.
Q.
2010.
A.
Three years ago, yes.
Q.
And was this then roughly two months before the
8
9
So, three years ago?
May 8, 2010 Woodlands RUD election?

A.
I would say somewhere in that area.
10
know what the meeting was going to be about.
11
wasn't too interested.
12
13
Q.
I was -- didn't
Wasn't really --
And were the meetings at -- you say, "Jim's."
Jim's home or his place of business?
Was it
Where was the meeting?
14
A.
His place of business off 2920 in Harris County.
15
Q.
Okay.
16
And just for the record, that's not inside The
Woodlands Road Utility District?
17
A.
No.
18
Q.
Mr. Jenkins' home, you know that to be where?
19
A.
The south part of -- off of Sawdust Road in The
20
Woodlands.
21
Q.
Okay.
22
A.
No.
23
Q.
Okay.
24
received a call.
25
was about the --
Not inside the Road Utility District?
And at this first meeting, you said you

And were you informed at that time that it

173
1
2
MR. HEATH:
It's leading, suggestive, and -- well, those are my objections.
3
4
THE COURT:
Okay.
Complete your question and
then we'll give Mr. Heath an opportunity to object.
Go ahead.
MR. WHITE:
Your Honor, I'm going to object.
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
10
MR. WHITE:
Let's do that.
11
THE COURT:
Okay.
12
13
could.
Q.
(BY MR. WHITE)
Did you know what the meeting was
about, Mr. McDuffee, before you went?
14
A.
Not to my recollection, no.
15
Q.
Okay.
16
17
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.
18
there.
19
were waiting for Adrian to show up because it was his
20
information.
21
Q.
And by "Adrian," you mean whom?
22
A.
Adrian Heath.
23
Q.
And by "his information," you mean what information?
24
A.
He was the one that had uncovered the RUD and how
25
I think Jim Doyle was there.
Jim was
From what I remember, we
it's run and how the elections were run.
The fact that there

174
1
2
3
4
never an election in the RUD.

Q.
And you mentioned the name Jim Doyle as well.
name has come up in this trial.

A.
His
Who is he?
Jim Doyle is probably one of the longest ones that's
been associated with Jim to my knowledge.
requests, signing complaints against politics --
Signing open record
MR. HEATH:
THE COURT:
I'm sorry.
11
MR. HEATH:
I understand.
12
THE COURT:
There's a train that must be coming
responsive.
9
10
13
It's not
There's a big horn
outside.
right down the street.
14
MR. WHITE:
I'll object to the horn, Your Honor.
15
THE COURT:
Well, it's a sign that someone's
16
going on a journey.
17
You make an objection for what?
18
MR. HEATH:
Our objection is that it was
THE COURT:
All right.
19
nonresponsive.
20
21
Ask your
next question.
22
Q.
23
Mr. McDuffee?
24
A.
25
Sustained.
(BY MR. WHITE)
Who is the person, Jim Doyle,
Jim Doyle is one of the gentleman I'm associated with
when I'm at Jim Jenkins' office.
Other than that, that's the

175
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.
8
9
10
Q.
Is Mr. Doyle -- what -- tell me who
is in this group of people that meets regularly at Mr. Jenkins'

office?
11
12
(BY MR. WHITE)
MR. HEATH:
Objection.
Relevance unless there's
a time period placed on it.
13
THE COURT:
Any response?
14
MR. WHITE:
Well, my understanding --
15
THE COURT:
It is pretty open-ended.
16
MR. WHITE:
My understanding was that the time
17
period that we were dealing with was the one precedent to these
18
questions which was meeting at that office.
19
THE COURT:
I'm going to sustain the objection
20
as the question is asked, but you can rephrase it to condition
21
it upon a time period.
22
23
Go ahead.
Q.
(BY MR. WHITE)
Mr. McDuffee, again, we're talking
24
about this first meeting that you testified earlier that took
25
place at some point in March of 2010, that there was a group of

176
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
5
6
Goeddertz, and Adrian Heath, and myself.

Q.
And what was discussed at that meeting?
7
8
MR. HEATH:
call for hearsay.
Your Honor, I think it's going to
That's our objection.
THE COURT:
Okay.
10
MR. WHITE:
Your Honor, I believe the statements
11
Response?
at this meeting -- couple of things.
12
First off, that they'd be statements by
13
co-conspirators, the people that were involved in this scheme
14
to take over the RUD.
15
And, second of all, probably the statements are
16
not going to be offered for the truth of the matter asserted in
17
the first place.
18
THE COURT:
So for what purpose?
19
MR. WHITE:
For the purpose of showing this
20
scheme and who was members of it.
21
MR. HEATH:
Your Honor, I'm just going to renew
22
my objection that it's going to call for hearsay.
23
going to call for -- Mr. Doyle has not been alleged to be part
24
of anything.
25
It's also
He's not been charged with any offense.

We would object to these -- the comments that
177
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
THE COURT:
I understand.
this case.
It hasn't been, but
it can nonetheless be admissible even though it's not alleged
in the indictment.
Anything else to add?
10
MR. WHITE:
In response to that, the conspiracy
11
that the State alleges is not indicted illegal voting offenses,
12
but the scheme to take over the Road Utility District, which
13
may have well included more individuals than just the ones
14
indicted and lasted a longer period of time than just the
15
voting.
16
THE COURT:
Okay.
17
MR. HEATH:
I'm going to renew my objection that
18
it's calling for hearsay.
19
because --
20
21
THE COURT:
What's your response to that?
It's also, I think, objectionable
Okay.
Why don't we discuss this up
here for just a moment, okay?
22
23
THE COURT:
Really -- let's make sure that we
24
can find all our proof here to what's relevant to the
25
allegations in the indictment, not some global charge to take

178
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?
8
9
MR. WHITE:
The -- this is the initial meeting
of where the idea of the Road Utility District vote was
10
proposed to the small group of individuals that are a group
11
that Jim Jenkins being the leader of that group.
12
THE COURT:
Well, they are entitled to produce
13
some information that is admissible for purposes of what's res
14
gestae to the offense, also toward motive; the scheme, how it
15
was perpetrated, how it was planned; and that's admissible if
16
it's relevant.
17
something about it doesn't have -- it had something to do with
18
something outside the bounds of the indictment, which I don't
19
prefer to get into.
But I just don't want to -- you mentioned
20
MR. WHITE:
21
I probably didn't use the best language.
22
THE COURT:
Well, if I said something like that,
Okay.
Keep it to what is connected
23
with proof relating to the elements of the offense as you
24
believe them to be in your strategy in proving your case.
25
And I understand your objection -Cassandra McCoy, CSR (936) 524-6305

179
MR. HEATH:
Yes, sir.
THE COURT:
-- but it's overruled.
MR. HEATH:
All right.
THE COURT:
6
7
Q.
(BY MR. WHITE)
Proceed, please.
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.
10
A.
Yes, there was meetings.
11
12
13
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?
14
A.
Yes.
15
Q.
And what was that role?
16
A.
At the beginning it was just to get change of
17
residency so he can be in the -- be in the district.
18
later date it was -- I filled out the campaign application.
19
would be the president.
20
Q.
And at a
So, if I'm hearing you correctly, the plan was for
21
you to run as a candidate for the Board of Directors of The
22
Woodlands Road Utility District; is that correct?
23
A.
Yes.
24
Q.
And you were to be, in fact, the president?
25
A.
Yes.
180
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?
10
A.
The instructions were, in fact, to be elected, become
11
president, pay off the bills, and turn the lights out.
12
it down.
Close the door.
13
Q.
To shut down the Road Utility District?
14
A.
The RUD.
15
Q.
Did you, at some point weeks later, pick up a
16
registration card and change your address?
17
your voter registration.
18
registration?
19
A.
20
office.
21
Q.
At Jim Jenkins' office?
22
A.
Correct.
23
Q.
And that was in what month; do you recall?
24
A.
I would say April.
25
To shut
And by that I mean,
Did you fill out a voter
I filled out a voter registration at Mr. Jenkins'
Over 30 days out from the
election.
181
1
2
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.
First Assistant Phil Grant.
Q.
It was signed by, I believe,
And I'm not going to ask you about the contents of
10
that letter, but what did you take that letter to indicate to
11
you?
12
13
A.
Danger.
This wasn't going to be a walk in the park.
It was not something taken lightly.
14
Q.
And did that cause you concern?
15
A.
Yes.
Questions were raised about it, informal
16
discussions about it, talked with some, I'd say, lawyers in the
17
county not on time, just asking their input.
18
of a way down, maybe very vague anything would happen.
19
20
Q.
Now, you were running for president of the board.
Were you the leader of this group?
21
A.
No.
22
Q.
Who was the leader?
23
And it was more
If you had to say there was a
leader of this group, who would that have been?
24
A.
Mr. Jenkins.
25
Q.
Mr. Jim Jenkins, the defendant?

182
A.
Mr. Jim Jenkins.
Q.
And why would you say that he was the leader of this
3
4
group?
A.
Everything flowed out of Jim's office.
that we've done in the past that were --
MR. HEATH:
responsive to the question.
the time frame we're talking about.

THE COURT:
10
his objection, I sustain.
11
to the allegations in the indictment.

Q.
(BY MR. WHITE)
That's not
And it's also completely out of
12
The things
All right.
As to that portion of
If you can make sure it's relevant
And going forward, if we can,
13
Mr. McDuffee, just to keep your comments as much as possible
14
toward the Spring of 2010, in that time period.
15
But just as background coming into this whole
16
scheme, was Mr. Jenkins the leader to you, the group
17
personally?
18
A.
Yes.
19
Q.
Okay.
20
And what was his role specifically with the
RUD voting idea?
21
A.
First I heard about it was from Mr. Jenkins.
22
Q.
What was the plan?
23
A.
The initial plan or as it expanded?
24
Q.
Let's talk about the initial plan to -- we've already
25
registered to vote.
What was the initial plan in terms of the

183
1
2
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.
6
7
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
10
receive a voter card in the mail?
11
A.
Yes.
12
Q.
And from then on, what was the plan of the group in
13
terms of voting and if there were any plans to stay at the
14
Residence Inn, physically stay at all?
15
A.
There was never a meeting I was involved in that was
16
staying at the Residence Inn prior to the election of -- I'm
17
sorry.
18
Could you repeat that?
Q.
I'm just asking you what the plan was, that you're
19
aware of, of the group, of Mr. Jenkins specifically, in regards
20
to voting the May 8, 2010 election?
21
22
25
Your Honor, that's been asked and
THE COURT:
Overrule.
answered.
23
24
MR. HEATH:
A.
We had the initial ones to change the votes, all of
the ones who were also in the original trial.

Plus, I was
184
asked to find -- or get my wife to change her address to the
Residence Inn.
Q.
4
5
That we wanted more than ten.
(BY MR. WHITE)
Did you ask --
THE COURT:
please.
I need to see the lawyers up here,
Thanks.
THE COURT:
Audley, you're not paying attention.
Your client is shaking his head in response to the questions
and I --
10
MR. HEATH:
I'm sorry.
11
THE COURT:
-- and I perceive that to be --
12
trying to make nonverbal communication to the jury and trying
13
to influence them.
14
MR. HEATH:
I'll tell him to stop, Judge.
15
THE COURT:
Urge him not to do that.
16
I see that, I'll do it.
17
doesn't help him at all.
Next time
And if it's in front of the jury, it
18
MR. HEATH:
I understand, Judge.
19
THE COURT:
Thank you for -- I know he may be
20
unhappy about what he's hearing, but he doesn't need to be
21
expressing it with indications that are obvious to everybody.
22
You're looking down and writing and you're not looking at him,
23
but he's doing it.
24
MR. HEATH:
I appreciate that.
25
THE COURT:
Thanks.

185
THE COURT:
3
4
Q.
(BY MR. WHITE)
Okay.
Go ahead.
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
8
9
that she would be comfortable with that.

Q.
Okay.
10
more or less?
11
A.
12
13
I did ask a neighbor.
But you were asked by Mr. Jenkins to recruit
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
14
election, which would be Friday, May 7th, the election being
15
Saturday, May 8th --
16
A.
Correct.
17
Q.
-- the records of the Residence Inn indicate that two
18
rooms were rented by individuals in this voting group of ten.
19
Is that your understanding as well that two rooms were rented
20
that night?
21
22
23
24
25
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.
186
Q.
Did you, in fact, stay that night at the Residence
A.
No.
Q.
Did you stay any night prior to that night at the
Inn?
Residence Inn prior to voting?
A.
No.
Q.
Did you stay any night after that night at the
Residence Inn?
A.
No.
10
Q.
Have you ever stayed a night at that Residence Inn?
11
A.
No.
12
Q.
Now, after the election took place, you were one of
13
the three that had actually received the most votes in the
14
election, correct?
15
A.
Correct.
16
Q.
How did you find out that those results were not
17
18
going to be certified?
A.
We all went to the next board meeting of the RUD and
19
put a canvass into the vote and that's when we learned that
20
they were not going to canvass the vote.
21
Q.
And knowing that, what did -- what did the group do?
22
A.
Not being in the legal -- or into elections, the
23
group had no idea what was going to happen.
24
Q.
So, what was the next course of action for the group?
25
A.
I believe the -- because the very following day after

187
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.
few words as possible.
10
I'm trying to put it into
The biggest thing is when we were told by my
11
attorney was to meet at his office and have a reason for why
12
you moved out of your residence to the Residence Inn.
13
Q.
And did you have a reason?
14
A.
I had a made-up reason.
15
Q.
What was that made-up reason?
16
A.
I had a security license and insurance license and I
17
needed to be in the center of the area to be able to do sales
18
and compliance.
19
Q.
What was the real reason?
20
A.
To vote in the RUD.
21
Q.
And did you or, to your knowledge, any of the other
22
voters actually move to the RUD?
23
A.
No.
24
Q.
Do you remember any of the other -- do you remember
25
the made-up story for Mr. Jenkins, if there was one?

188
1
2
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.
Q.
Did you hear some of the made-up reasons of other
members of the group without going into them?
7
8
No.
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
10
quote/unquote moving into the Residence Inn, what were some of
11
the other things that the group did in preparation for this
12
civil trial?
13
A.
Rent more rooms, meet for breakfast at the Residence
14
Inn.
15
paid by others.
16
with names even though I should know them.
17
into the Inn.
Ben and Robert, basically was given a room to stay in

Later on -- forgive me.
I'm not real good

Moved into the room
Tom Curry and his wife, but that was way later.
18
Mainly two rooms either we could stop by, put
19
some clothes in a room, if I had a pad key to, and leave; and
20
show up the next morning for breakfast.
21
22
Q.
So, you actually participated in some of these
activities?
23
A.
I participated in some of these activities, yes.
24
Q.
And you would bring items from home, clothes, put
25
them in a room?
189
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.
10
Q.
And for what purpose?
11
A.
Make sure the front desk knew your name; have mail
12
sent there and have it held at the front desk; take pictures in
13
the morning and make sure the newspaper was in it, obviously,
14
say I was there, others were there making sure their faces were
15
in the pictures also.
16
Q.
I'm going to show you what's been marked as State's
17
Exhibit 33.
18
and then I'm going to show you a copy.
I'm actually going to tender this to counsel first

Do you recognize these?
19
A.
Oh, yes.
20
Q.
And what are those, Mr. McDuffee?
21
A.
That is the Residence Inn's breakfast area.
22
Q.
Flip through those pages, if you would, and make sure
23
24
25
you recognize all those photos.

THE COURT:
All of those are collectively
referred to as State's Exhibit 33?

190
MR. WHITE:
Yes, Your Honor.
MR. HEATH:
Your Honor, I can speed it up for
you.
No objection.
4
5
THE COURT:
Q.
(BY MR. WHITE)
Admitted.
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?
10
A.
Yes, I see those.
11
Q.
And what do those notions say?
12
A.
18(a), (b).
13
Q.
And the word before Exhibit is what?
14
A.
Intervenors.
15
Q.
And that was you guys, correct?
16
A.
Correct.
17
Q.
And the group of eight that decided to join as
Goes through the alphabet.
18
intervenors and intervene in the lawsuit against the RUD; is
19
that correct?
20
Or am I mixing up the legal -- explain it to me,
21
please.
22
A.
This is after the votes.
These are the intergroup
23
that were -- voted in the vote.
24
to trial, then it was sped up.
25
with some of my paperwork at the time like I was working.
And when we knew we were going

Breakfast.
I'm sitting there

191
Others were coming and going, reading the newspapers.
all posed.
Q.
Okay.
Let me jump right back.
asking is just a background question is:
your group offered these at trial or not?
don't.
A.
I do not know.
Q.
Okay.
That was
The question I'm

Do you recall that
That's fine if you
But these are fair and accurate pictures of
the group of you at the Residence Inn?
10
A.
Yes.
11
Q.
Do you happen to know who these were taken by?
12
A.
It was whoever had a camera that day.
I was --
Tom Curry.
13
Jim had a camera.
I had a camera.
14
brought a camera.
It was never everybody had a camera at once.
15
16
Q.
Okay.
I'm showing you first photo here.
And this
individual is whom, please?
17
A.
That's Jim Jenkins.
18
Q.
Okay.
19
A.
That's Jim Doyle.
20
Q.
Jim Doyle.
21
I think Bill Berntsen
And who is this individual right here?
That's the husband of Sybil Doyle, if I'm
correct.
22
A.
Correct.
23
Q.
This individual back here is whom?
24
A.
Adrian Heath.
25
Q.
And do we recognize this one?
Or can we make him out

192
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
7
8
9
10
11
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?
12
A.
No.
13
Q.
Was this a posed photograph?
14
A.
Yes.
15
Q.
How about this one?
16
A.
Yes.
That was -- that's Prime America that was who I
17
was an agent with, independent agent.
18
a standard letter I got, I received.
19
20
Q.
And that's probably just
What's the purpose of showing business papers in
these photos at the Residence Inn?
21
A.
I was supposed to be in the district doing business.
22
Q.
That was your -- is that your story?
23
A.
That was my story, yes.
24
Q.
Okay.
25
And these individuals at the table here?
This
appears to be the backside of the table from photo one on the

193
cover.
Are these the same individuals as we mentioned before?
A.
Yes.
Q.
This is Adrian Heath?
A.
Adrian Heath.
Q.
Jim Doyle?
A.
Right.
Q.
And do we recognize this individual now?
A.
I would think of the size it had to have been Tom
10
then?
Curry.
11
12
This would have Jim Jenkins back here
Q.
Okay.
And there seems to be mail on the table.
Was
that part of this whole operation, mail?
13
A.
Yes.
14
Q.
What did that have to do with?
15
A.
You mailed to yourself or mail, whatever you had,
16
mailed to the Residence Inn and have them hold it at the front
17
desk.
18
Q.
So, you would send mail to yourself?
19
A.
Yes.
20
Q.
Okay.
21
And who is this smiling fellow in the yellow
shirt?
22
A.
That's Bill Berntsen.
23
Q.
And this appears to be Tom Curry then here?
24
A.
Uh-huh.
25
Q.
And would this be self-addressed mail?

194
1
2
A.
Q.
See if you can make out the wording on it if you look
at your paper copy there.
5
6
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.
8
9
I can't make -- but even I had
mail sent to the Residence Inn.
3
4
More than likely.
This photo down here of -- would this be

Mr. Berntsen intrigued with the newspaper?
10
A.
Yes.
11
Q.
And we have not seen this person before, I don't
12
believe.
13
14
A.
Who is this?
That's the brothers.
That's Ben and I don't remember
his younger brother's name.
15
Q.
Okay.
16
A.
Allison.
17
Q.
And would it be Robert?
18
A.
Robert.
19
Q.
And if you look at your paper copy, I'm not sure if
Ben Allison?
Thank you.
Ben and Robert, yes.
20
you can make this out at all, but this document has a seal on
21
it.
22
have a recollection.
And I'm curious if you can make out what that is or if you
23
A.
No.
24
Q.
That's all right if you don't remember.
25
I can tell that it's some kind of a document.
fine.
That's just
195
Do you know what this photo is?
A.
This is the indoor swimming pool at the Residence
Q.
Okay.
A.
That would be Mr. Jenkins.
Inn.
of his grandsons.
Do you know who these individuals are?

I'm assuming that's one
And Bill Berntsen.
Q.
Okay.
A.
Bottom of the second one on my page.
10
Q.
Now this -- were you aware of any of the members of
And by Bill Berntsen, you mean the photo down
here?
11
the group bringing family to the hotel to pose for these
12
photos?
13
A.
14
15
16
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?
17
A.
Tom Curry.
18
Q.
Okay.
19
20
21
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.
22
Q.
Now, were these stays before or after the election?
23
A.
After.
24
Q.
All of these photos in here that you have seen?
25
A.
Yes.
196
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.
10
Mr. Goeddertz on the right corner
there.
11
Q.
On the right corner here?
12
A.
Yes.
13
Q.
And he's sitting next to?
14
A.
Tom Curry.
15
Q.
Who is this?
16
A.
Adrian Heath.
17
Q.
And at the bottom here, Goeddertz again?
18
A.
Yes.
19
Q.
Curry and this time?
20
A.
It will be Bill Berntsen.
21
Q.
Berntsen.
22
Is this Tom Curry?
Okay.
Now, in none of these photos do we have any
23
pictures of the ladies, Sybil Doyle and Roberta Cook.
24
that, sir?
25
A.
To my knowledge they were never there.

Why is
The mornings
197
I was there, I never encountered them at the hotel.
Q.
Now, these are blurry photos but can you make them
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
10
out?
election?
11
A.
After the election, yes.
12
Q.
What was the idea of having the wife along?
13
A.
Prove that he and his wife was living at the Inn.
14
Q.
And here we have a basketball game.
15
16
Was there a real
basketball game that you know of?

A.
There may have been a three or four out shooting
17
baskets one evening or two.
18
Mr. Goeddertz's room one night.
19
this is were the basketball court is, I believe.
20
out there and there was three.
21
22
23
Q.
in it.
A.
I have witnessed one from

His was on the far wing and
And I looked
Here we have what appears to be a closet with clothes

What was the purpose of the photos like this?
Showing that we had clothes in the apartment -- I
24
mean, in the Residence Inn.
25
you spent the night away.
If your closet wasn't empty, well,

198
1
2
3
4
5
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?
8
9
10
11
12
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?
13
A.
Correct.
14
Q.
Adrian's role to the group was what then?
15
A.
On this subject matter, the fact that he had
16
discovered it, had researched it, looked into it, had made
17
contact with their attorney, tried to see open records on it,
18
to that extent is all I would know.
19
20
Q.
Okay.
More of the idea guy is what it sounds like?
Brought the idea to the group; is that what you're --
21
A.
-- some --
22
Q.
-- saying?
23
A.
-- and brought it, yeah.
24
Q.
Okay.
25
To your knowledge, did any member of this
group, prior to the election, have any other reason for staying
199
1
2
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.
10
MR. HEATH:
Thank you.
11
THE COURT:
No problem.
We're going to take
12
about a five-minute break; ladies and gentlemen.
13
bearing with us.
14
We're recessed.
15
(SHORT BREAK TAKEN)
16
THE COURT:
Thank you for
Ladies and gentlemen, during the
17
recess the State and the Defense discussed an issue.
18
State is requesting the Court to allow the State to allow to
19
ask the witness some more questions.
20
21
And the
And I think that's done without objection by the

Defense?
22
MR. HEATH:
That's correct, Your Honor.
23
THE COURT:
And so --
24
MR. WHITE:
25
THE COURT:
-- the State may proceed on direct.

200
CONTINUING DIRECT EXAMINATION
BY MR. WHITE:
Q.
4
5
6
7
8
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.
10
Q.
What did you donate?
11
A.
I don't really recall.
12
I just donated toward that.
I don't want to get into the
detail, but there were large sums along the way for rooms.
13
Q.
And whom did you pass that money along to?
14
A.
I couldn't really tell you.
15
At that time, it was
kind of hairy in my life.
16
Q.
Do you know if Mr. Jenkins spent a lot on rooms?
17
A.
Never heard a word as to who, what, when, and where.
18
Q.
At some point was there an issue prior to the
19
election contest in regards to the night before the vote that
20
not enough money had been spent on hotels?
21
22
A.
What I recall was the fact that Residence Inn allows
four per room.
Ten of us and two rooms at the Residence Inn.
23
Q.
And that was two rooms?
24
A.
Two rooms.
25
Q.
And did the group see that as a problem at the time
Ten occupants.
Ten total.

201
of the election?
A.
No.
Q.
Did the group see that as a problem after the
election once the civil trial had started?
5
6
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
9
10
in a motel room in The Woodlands.

together.
They're not husband and wife.
11
Q.
12
specifically?
13
A.
14
They're not married
Now, was anyone called to task for that situation
My recollection was that the conversation was
appointed to Mr. Jenkins.
15
Q.
And what was Mr. Jenkins' response, if you recall, to
17
A.
I don't believe there was a response.
18
Q.
In your knowledge of Mr. Jenkins -- and how long have
16
19
that?
you known Mr. Jenkins?
20
21
22
A.
90's.
I first became acquainted with Mr. Jenkins in the
I ran for a precinct chair.

Q.
Okay.
So, since you've known Mr. Jenkins in the
23
90's, have you known him to be a frugal man or a man that
24
throws money around?
25
A.
Very frugal.
202
Q.
to you?
A.
And when you say "very frugal," what does that mean
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,
10
on the screen State's 19.
11
the period after the election.
12
Mr. Jenkins' name is on this bill along with three other
13
members of the group; is that correct?
These are Residence Inn records for

And if you can make this out,
14
A.
Correct.
15
Q.
And this is one night at $189; is that correct?
16
A.
Before tax, yes.
17
Q.
Right.
18
change?
19
A.
Correct.
20
Q.
And here we've got a list of stays of Mr. Jenkins.
And the total is 213 with tax and some
21
I'll zoom out so we can see the whole list.
22
the amounts here on the side as these rooms total up?
23
got the arrival of May 29th of 2010; departing on June 14th of
24
2010, which is 16 nights.
25
Can you make out

We've
Do you see these totals of 842 and change; 841

203
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?
8
9
A.
The appearance that we were there continuously or
several rooms being rented at a time.
There was not just two
10
rooms and nothing, two rooms and nothing.
11
appearance.
12
were staying at the Residence Inn during those time periods.
13
More of an
That was when the Allison's, actually, I believe,
Q.
And the purpose of making that appearance was for
15
A.
For the trial.
16
Q.
Now, Mr. McDuffee, you've obviously separated from --
14
17
what?
yourself from the group at this point, right?
18
A.
Correct.
19
Q.
And why was it that you chose to do that?
20
A.
After the trial, they wanted to appeal and they
21
needed the court reporter's record and the attorney was not
22
going to pay for it and he wanted money.
23
24
25
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

204
this appeal, it's going to be criminal.
MR. HEATH:
Objection.
THE COURT:
Sustained.
MR. HEATH:
And ask that the jury be instructed
THE COURT:
Disregard the last statement,
MR. HEATH:
We would move for a mistrial.
THE COURT:
Denied.
to disregard --
6
7
Hearsay, Your Honor.
please.
10
You are instructed to disregard the last
11
statement of the witness and do not consider that at all for
12
your deliberations, ladies and gentlemen.
13
Q.
(BY MR. WHITE)
Thank you.
And, Mr. McDuffee, if you'd just
14
listen to the question as directly as you can.
15
directly as you can.
16
17
Respond
Did you become aware that there was a grand jury

investigation into this matter at some point?
18
A.
At what time period are we -- after the first trial?
19
Q.
At -- a criminal grand jury investigation, at some
20
point did you became aware of that?
21
A.
I became aware, yes.
22
Q.
Okay.
23
A.
Sleepless nights.
24
25
And what did you do in response to that?

Reached out to others.
I reached
out to your office.

Q.
Okay.
And when you called my office, did you speak

205
with me on the phone?
A.
I left a message.
Q.
Okay.
A.
Yes.
Q.
And do you recall what you told me in regard to being
6
7
And at some point, did we speak together?
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.
10
Q.
And what was your desire to do at that point?
11
A.
My desire was to get the -- to correct the wrong that
12
I had done.
13
Q.
And did you, in fact, testify at the grand jury?
14
A.
Yes, I did.
15
Q.
Did you understand that there might exist options for
16
leniency for people who cooperate and tell the truth in front
17
of a grand jury?
18
A.
Yes.
19
Q.
Were you promised anything, any leniency of any kind?
20
A.
No.
21
Q.
As you sit here today, are you under indictment for
22
the charge of illegal voting in this 2010 election?
23
A.
I was not indicted from the grand jury, no.
24
Q.
Are you under any criminal charge for that election?
25
A.
I would say the potential, yes.

206
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
10
BY MR. HEATH:
11
Q.
Mr. McDuffee, it was only after the civil trial that
12
you began to become worried about your position, is that
13
correct, with respect to this election?
14
15
A.
Trying to really think and not get the answer -- I
became concerned with the District Attorney's letter.
16
Q.
All right.
17
18
Let's talk about that.
You received a letter.

from.
You indicated who it was
The first assistant, right?
19
A.
Yes.
20
Q.
And -- Mr. Grant, Mr. Phil Grant?
21
A.
Correct.
22
Q.
In that letter, he urged you to do three things,
23
didn't he?
24
understand that to mean?
25
A.
He urged you to seek counsel.
And what did you
That it was serious.

207
Q.
But what did you understand the word "counsel" to
A.
An attorney at law.
Q.
All right.
5
6
7
mean?
Pursuant to that, you did talk to some
attorneys, didn't you?

A.
I talked to an attorney at a gathering.
for any of us.
It was not
It was at his home.
Q.
All right.
A.
Yes.
10
Q.
And someone you trusted?
11
A.
I felt, yes.
12
Q.
You were also given two other items to review or
Someone you knew?
13
suggested to review; and that was the law itself, right, from
14
the election code and two position papers, one from the
15
Secretary of State and one from the Attorney General, right?
16
A.
Who would I receive these from?
17
Q.
In the letter that you received from Mr. Grant it
18
suggested that you review those things.
19
A.
Correct.
20
Q.
Did you personally ever review the election code, the
21
position paper from the Secretary of State, or the Attorney
22
General's opinion?
23
A.
No.
24
Q.
Now, is the reason that you did not review them,
25
because when you talked to the lawyer, you were pretty certain
208
that you were okay?
A.
No.
Q.
So, that counsel told you it's fifty-fifty or dicey;
He left it up in the air.
is that right?
A.
He basically said he couldn't call it.
Q.
Too close to call for him, correct?
any other counsel after that?
election.
So, did you seek
Now, this is before the
A.
I cannot answer that yes or no.
10
Q.
All right.
Now, when you decided I'm going to go
11
ahead and vote, you did that on your own, didn't you?
12
your decision?
That was
13
A.
I went to the voting polls, yes.
14
Q.
And when you decided to run as an -- for an office in
15
the RUD, you're indicating you wanted to be the president, you
16
made that decision too, didn't you?
17
A.
I can't answer that as a yes.
18
Q.
Okay.
20
A.
I agreed, yes.
21
Q.
And you agreed because you believed something was
19
22
There was discussions.
Let me ask it another way.
You agreed to do
it?
going on wrong over there in the RUD, didn't you?
23
A.
I didn't know that, no.
24
Q.
But something compelled you to run for that office,
25
right?
209
1
2
3
4
5
6
7
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?
10
11
A.
For there to be voters in the district and there was
never a called election, yes, that was a problem.
12
Q.
And you thought it was wrong, didn't you?
13
A.
I felt it was not -- it was against the state laws
14
since there should have been an election called.
15
voters.
16
Q.
17
All right.
There were
So, you felt like you personally and
everybody in Montgomery County was being wronged, didn't you?
18
A.
No.
19
Q.
Just you?
20
A.
I don't know what the other people thought.
21
Q.
But that's what you thought?
22
A.
I felt that it was wrong.
23
Q.
All right.
And you then decided, because you felt it
24
was wrong, how do I right this wrong; I get engaged in the
25
political process, correct?

210
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.
10
Q.
But you were concerned about that, right?
11
A.
I felt it was incorrect.
12
13
14
called an election.
Q.
All right.
There should have been
Should have been on the ballot.

And you then tried to figure out how can
I legally register to vote in that district, didn't you?
15
A.
Never.
16
Q.
You did not think about it?
17
A.
No.
18
Q.
You did not seek counsel about it?
19
A.
For what?
20
Q.
To legally register in the district.
21
A.
Could you rephrase the question?
22
Q.
Well, you've indicated that you thought it was wrong;
To seek counsel for what?
23
that you thought there needed to be an election, right?
24
testified to that?
25
A.
I thought there should be an election.

You've
211
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
10
11
12
13
14
15
16
citizen of the state of Texas.

Q.
All right.
So, you felt confident about that.
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?
17
A.
That's correct.
18
Q.
All right.
19
You had no worries about that at all,
correct?
20
A.
No.
21
Q.
So, you received a letter from Phil Grant.
22
You
About how
long before the election did you receive the letter?
23
A.
About a month, give or take.
24
Q.
And in that month, you just talked to a lawyer about
25
that letter?
You didn't talk to anybody else?

212
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
10
Mr. Grant suggested that you review, or the Attorney General
11
paper?
12
Did you ever look at it?
Did you ever see a copy of it?
Did you ever try to digest it?
13
A.
No.
14
Q.
Why didn't you?
15
A.
I had trust in a friend.
16
Q.
All right.
17
A.
Mr. Jim Jenkins.
18
Q.
That's right.
19
Did you ever read it?
And that friend was who?
And what did he tell you?
That he had
read every one of those papers, right?
20
A.
I do not recall him telling me that.
21
Q.
And that he had read the case law that those papers
22
talked about, right?
23
A.
I do not know that.
24
Q.
Well then, what did he tell you?
25
A.
Don't worry about the letter.
It's a gray area.

213
1
2
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?
5
6
7
8
9
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?
10
A.
It was not a cut and dry, yes/no legal.
11
Q.
All right.
And did he share with you his belief that
12
if you had the intent to establish a residence and you had
13
physical presence at that residence at the time that you voted
14
that that was -- that would satisfy the statute?
15
you that?
Did he tell
16
A.
I've heard that argument, yes.
17
Q.
Did Mr. Jenkins tell you that?
18
A.
I cannot answer that yes or no.
19
Q.
Who do you think told you that?
20
A.
It could have come from anyone of the group or they
21
had heard it.
22
it was a gray area.
23
election.
24
daily basis/weekly basis with the group.
25
Q.
I do not know.
The general consensus was that
I know where it happened after the
But before, I was not -- I was not in meetings on a
But you felt confident enough to not only put your

214
name on the ballot, but to go down and vote for yourself and
for your other -- the other candidates, correct?
3
4
5
6
7
A.
legal.
Correct on putting my name on the ballot.
Totally
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.
10
11
Q.
Do you know if any of the other people in the group
did that, paid an attorney to give them an opinion?
12
A.
No.
13
Q.
Did anybody in the group offer you the Secretary of
14
I have no knowledge.
State position paper to look at?
15
A.
Before the vote?
16
Q.
Yes, sir.
17
A.
I couldn't tell you the number of times I even saw
18
19
any of the group before the election.

Q.
Because you were -- the first time that you heard
20
anything about this incident was in a public meeting at a
21
library in the RUD, wasn't it?
22
anything about problems with the RUD?
The first time you heard
23
A.
No.
24
Q.
And Mr. Jenkins wasn't the person speaking.
25
Heath was.
Adrian
He's the one that discovered all this, right?

215
A.
I've heard it from Adrian Heath on the night of the
meeting at Jim's office.
the RUD and they had no elections because there were no
candidates in the district.
living inside the district who could vote.
residents in the district, there was no need to call an
election to spend the money.
8
9
10
11
Q.
Now, based on your knowledge, which one of the group
contacted the Secretary of State and set up the election?
13
assume.
14
Q.
That I had no knowledge of.
I could only guess or
Well, I don't want you to do that.
I want you to
testify about what you know.
16
Now, you do remember testifying.
This is your
third time testifying about this situation, correct?
18
A.
Yes.
19
Q.
You testified in the civil trial.
20
Since there were no
of it.
A.
17
There was no -- sorry -- residents
They just appointed a board and that was the end
12
15
The first time I heard anything about
You testified
before the grand jury.
21
A.
Right.
22
Q.
And now you're testifying here.
23
A.
Correct.
24
Q.
Now, do you remember when you testified in the civil
25
trial and you didn't -- you remember saying that the decision
216
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
10
what was in your mind at that time?
11
A.
Right.
12
Q.
Did you knowingly put false information on your
13
registration form to vote?
14
believe you were knowingly putting down an illegal residence?
15
You didn't believe that in your mind, did you?
16
A.
At the time you did it, did you
I believed that it was not a clearcut yes or no.
17
was told I could go put a tent under the Research bridge and
18
that was my residence and list that on my voter registration.
19
20
Q.
And that's what you believed when you put it down,
isn't it?
21
A.
Yeah.
22
Q.
Now, you also believed that if you were in that
23
location, that residence on the date of the election, that was
24
okay, too, correct?
25
mind and your presence at one time?
That there had to be a meeting of your

Do you remember that being

217
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?
stay at the Residence Inn, did you?
You didn't
A.
No.
Q.
But others in your group did, didn't they?
10
A.
I have no knowledge.
11
Q.
The fact that you didn't stay there and that you
12
didn't have a presence there, in fact, means you did not merge
13
your mental state, what you had in your mind to do as far as
14
your residence, and your physical actions?
15
intersect that day, did they?
16
17
18
19
A.
They did not
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?
20
A.
No.
21
Q.
So, you consciously did not stay there, did you?
22
A.
Consciously, no.
23
Q.
And that's different from others who felt like if I
24
am there in the RUD on the night before, on the day of, on the
25
night after, that they had legally established their residence

218
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?
thought you might be, but you didn't know that, did you,
truthfully?
You didn't know you were voting illegally?
10
11
MR. WHITE:
If there
could be one question at a time for the witness.
12
13
You
THE COURT:
Q.
(BY MR. HEATH)
All right.
Sustained.
You didn't know that, did you?
On
14
the day that you -- on the day that you voted, you did not know
15
that, did you?
16
A.
No.
17
Q.
And that's the honest truth, isn't it?
18
A.
That's the honest truth.
19
Q.
So, maybe, maybe you were negligent in voting.
You
20
might even have been reckless, but you didn't know for certain
21
that you were voting illegally, did you?
Did you?
22
A.
No.
23
Q.
After the election contest, that's when you felt like
24
25
No.
you, hey, man; maybe I did the wrong thing, right?

A.
After, yes.
After?
219
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.
proceed, yes.
Q.
There was enough for the District Attorney to
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.
10
Now, you did appear before a grand jury
here in Montgomery County, didn't you?
11
A.
Yes.
12
Q.
And when -- after you testified, were you compelled
13
to plead to any sort of criminal offense?
14
A.
No.
15
Q.
So, as you sit before us, you were never charged?
16
A.
Correct.
17
Q.
You were never indicted?
18
A.
Correct.
19
Q.
And as you -- as you sit here with us, you don't
20
believe you're ever going to be charged or indicted for this
21
offense; is that right?
22
A.
That one I can't answer.
23
Q.
Now, you do recall, prior to the election, just a few
24
days before, talking with the publication called the Texas
25
Watchdog about this election?

220
A.
Yes.
Q.
Do you remember indicating that you were anxious to
rectify or to correct the problems in the RUD?
that?
Do you remember
A.
Not in the RUD.
Q.
Yes, sir.
A.
I was -- wanted there to be an open election.
Q.
Because your sense of it was that they just kept
9
10
11
In the voting for the board.
And you were anxious to do it?
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
12
attorney that there was no need to call an election and they
13
just re-appointed themselves or whatever.
14
amongst themselves, I did not know that.
If they voted
15
Q.
Now, do you remember reading that article?
16
A.
I remember pulling it up.
17
18
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
19
that residency could be determined by the voter?
20
words, the voter determined his residence for purposes of an
21
election?
22
23
A.
In other
I've heard all the arguments about the mindset and
that didn't really totally wash.
24
Q.
As far as you were concerned?
25
A.
As far as I was concerned.

221
1
2
3
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,
THE COURT:
Any redirect?
MR. WHITE:
No further questions for this
THE COURT:
All right.
10
MR. WHITE:
He may, Your Honor.
11
MR. HEATH:
No objection, Your Honor.
12
THE COURT:
All right.
All right.
Ladies and gentlemen, we're going to
13
Your Honor.
witness.
Thank you.
14
15
break for the evening.
16
o'clock again.
17
that the Court has given to you.
18
And, again, thank you for your patience and understanding.
19
Have a nice evening.
20
And can we see -- be back at 9:00
Thank you very much.
Remember the instructions
Please follow the bailiff.
(COURT ADJOURNED)
21
22
23
24
25
TAB F
TAB G
TAB H
TAB I
TAB J
TAB K
MONTGOMERY COUNTY ELECTIONS

P. O. Box 2646
Conroe, Texas 77305-2646

www. Mon tgomervVotes. org
Carol Gaultney, cera
election (Simctx. org
Elections Administrator
(936) 539-7843
Fax (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 Help
America Vote Act of 2002, 42 U.S.C. 15483 and Sections 13.072(a) and 18.061 ofthe
Texas 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 Official
State List of Registered Voters maintained by the Office ofthe Secretary ofState
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.
Carol Gaultney, CERA

Elections Administrator/Voter Registrar
County of Montgomery
ICERTIFY THAT THIS IS ATRUE AND CORRECT

COPY AS TAKEN FROM OFFICIAL COUNTY
RECORDS, AS OF jO/M/AU\*) ,
SUZIE HARVEY
ELECTIONS ADMINISTRAT
BY.
Vifl^-f,"- /rû^'
22L
MATTHEW MURRAY
n
GIS. DATABASE ADMINISTRATOR
State of Texas
06/17/1992
06/14/1992
02/14/1993
03/13/1994
177390
177414
195018
207351
MCDUFFEE
MOEYKENS
CURRY
POWELL
LAUKIEN
WOODARD
ALLISON
RUDNEY
PONDER
BEARDEN
1109835909 VALLEY
1154598245 HARFIELD
1170409991 BERNTSEN
1169833119 MURRAY
1170020072 MURRAY
1159204244 WOODS
1168572055 ALLISON
.1126583782
1126800607
1127003603
1145657882
1154745672
1128062097 LAUKIEN
1127367688
1127868988
1128190291
1126480707
1128062084
1127805450 COOK.
1127782444 POWELL
1126017474 JENKINS
1127015712 GOEDDERTZ
1126017435 HEATH
1126885769 DOYLE
CHS, DATABASE ADMINISTRATOR
MATTHEW MURRAY
HY 7k>*ZM ,j* A/^t-^-6-CW
ELECTIONS ADMINISTRATOR
SU2IE HARVEY
RECORDS, AS OF iC/n<f/j>ot2
ICERTIFY THAT THIS IS A TRUEANDCORRECT

COPY AS TAKEN FROMOFFICIAL COUNTY
07/03/2008
S450791
S478254
514112
513958
512966
510117
486641
478697
11/17/2006
10/15/2005
09/06/2007
07/10/2008
10/20/2008
01/28/2010
03/27/2010
03/27/2010
05/07/2010
03/10/2007
10/08/2005
424336
457882
09/15/2004
09/15/2004
446663
09/01/2004
395878
11/28/1998
04/27/2003
397002
397003
424096
372354
10/05/1997
03/01/1982
045542
269839
289346
03/01/1976
CeWftcaaeffacîgOam^lBfleflft^^
017225
LEA
PETER
JOSEPH
ADRIAN
DAVID
JAMES
ALAN
SHELLEY
KATHLEEN
ROBERTA
MARGARET
RICHARD
CRAWFORD
BRUCE
ROY
THOMAS
MICHAEL
DEAN
DIRK
DANIEL
KATIE
MARIA
MARY
MARLENE
BENJAMIN MURRAY
JONATHAN BRUCE
JAMES
OLIVER
DEBORAH
ANN
JEAN
T
ROBERT
DABNEY
KAYLENE
DICKSON
STEVE
KENT
BILL
REAGAN
JONES
RAYNELL
CHARLENE
SYBIL
15910 HARTMAN RD
PO BOX 131871
16 PASTORAL POND CIR
4775 W PANTHER CREEK #130-A
607 SYCAMORE DR
27907 HANSONS CT
9182 SIX PINES DR
PO BOX 9738
2630 N CRESCENT RIDGE DR
28227 NANCY LN
14993 BOYD LN
10210 GROGANS MILL RD 3RD FL
9333 SIX PINES DR #330
2203 TIMBERLOCH PL #135
1040 LAKE FRONT CIR
14993 BOYD LN
661 S 2220 W UNIT 103
661 S 2220 WEST UNIT 103
32 N RAINFOREST CT
1600 LAKE FRONT CIR
1600 LAKE FRONT CIR #100
16728 BENDING OAKS
Page 1
THE WOODLANDS
THE WOODLANDS
THE WOODLANDS
PLEASANT GROVE
PLEASANT GROVE
THE WOODLANDS
THE WOODLANDS
THE WOODLANDS
THE WOODLANDS
CONROE
CONROE
CONROE
THE WOODLANDS
THE WOODLANDS
THE WOODLANDS
THE WOODLANDS
THE WOODLANDS
THE WOODLANDS
CONROE
SPRING
THE WOODLANDS
THE WOODLANDS
MAGNOLIA
CONROE
TX
TX
77380
77380
77380
77380
77380
77306
84062
84062
TX
TX
TX
UT
UT
TX
77380
77380
77385
77306
77381
77381
77381
77387
77386
77380
77302
77381
77380
77393
77355
1600 LAKE FRONT CIR #100
1600 LAKE FRONT CIR
9333 SIX PINES DR
2203 TIMBERLOCH PL #135

1040 LAKE FRONT CIR
9333 SIX PINES DR
10001 SIX PINES DR
10001 SIX PINES DR
10210 GROGANS MILL RD

9333 SIX PINES DR #330
9333 SIX PINES DR

9333 SIX PINES DR

9333 SIX PINES DR
9333 SIX PINES DR

9182 SIX PINES DR
9333 SIX PINES DR
9333 SIX PINES DR
9333 SIX PINES DR
9333 SIX PINES DR
WOODLANDS
WOODLANDS
WOODLANDS
WOODLANDS
IX
WOODLANDS
WOODLANDS
WOODLANDS
WOODLANDS
WOODLANDS
TX
TX
TX
TX
TX
TX
THE WOODLANDS
THE
THE
THE
THE
THE
TX
TX
TX
THE WOODLANDS
THE WOODLANDS
TX
THE WOODLANDS
TX
THE WOODLANDS
THE WOODLANDS
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
WOODLANDS
WOODLANDS
WOODLANDS
WOODLANDS
THE
THE
THE
THE
THE WOODLANDS
THE WOODLANDS
THE WOODLANDS
THE WOODLANDS
THE
THE
THE
THE
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TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
TX
Tha Woodlands Road Utility District #1 (24)
TWRUD1 (24)
77380
33
77380
M
F
77380
33
33
33
33
33
33
33
33
33
33
33
33
62
62
48
33
33
M
33
48
33
33
33
33
77380
77380
77380
77380
77380
77380
77380
77380
77380
77380
77381
77381
77381
77380
77380
77360
77380
77381
77380
77380
77380
11/19/1949
11/05/1963
08/16/1951
10/08/1974
09/23/1956
11/07/1958
01/28/1992
04/18/1987
06/20/1949
08/12/1954
08/26/1961
09/08/1927
03/14/1954
12/06/1971
11/06/1962
07/10/1984
03/05/1976
03/12/1949
11/23/1957
03/13/1961
11/08/1950
10/14/1972
07/31/1947
06/24/1957
TAB L
27
THE COURT:
you're going to object to Defendant's 3?
Okay.
MR. GLICKLER:
On 3, are you objecting to --
Yes, Your Honor.
There's no
evidence tieing this to the defendant whatsoever which makes it
irrelevant.
whether or not someone's residence is whether they're listed as
a registered voter.
8
9
It also doesn't go to the essential issue of
THE COURT:
Okay.
everybody stands on all of this.
I think I know where

And here's what I'm inclined
10
to do is, you're going -- are you going to offer to admit all
11
of these?
12
MR. HEATH:
Yes, Your Honor.
13
THE COURT:
All right.
I'm inclined, and I want
14
to hear -- I'm inclined to admit 1 and 2 only because they
15
refer from the -- they refer -- they are referred to from the
16
letter that is State's Exhibit 34 that the State has
17
introduced.
18
are from agencies which are granted that authority to issue
19
those.
And they are, under 803, admissible because they
20
The -- I know that in reading those -- I've read
21
them, reviewed them, and they are specific to the circumstances
22
that were presented to them in making their opinion; and that
23
was, students, the mind of students to claim a residence.
24
However, in those letters, it does say that whether -- in
25
summary, whether they're a student or not, these principles

28
apply to all.
So they were referred to in 34.
I think they
have -- they're relevant.
the Legislature has authorized their admissibility in certain
situations.
relevance.
But they are only allowed because
So, it has that level of credibility and
The others that you're moving, I would deny --
MR. HEATH:
Okay.
THE COURT:
-- because they are not authorized
9
10
by people who are authorized, like the Attorney General and the
Secretary of State, to issue opinions on that subject matter.
11
And I'm going to -- I want to exclude every- --
12
six billion people on this planet giving -- weighing in on an
13
opinion on this except for those few who -- who are allowed to
14
and that is the legislatively enacted statute and the Attorney
15
General and Secretary of State that summarize these issues in
16
their opinion.
17
18
MR. HEATH:
Okay.
an official public document.
19
THE COURT:
Now, I am submitted to D-3 as
It's under the seal of the --
And he's objecting towards
20
relevance.
21
it's not admissible in its form as a public document, but
22
whether it is relevant.
23
issues that the jury has to decide?
It's not that it's inadmissible.
It's not that
And what is the relevance on the
24
MR. HEATH:
Mr. Jenkins --
25
THE COURT:
Yes.

29
MR. HEATH:
-- had read and given this to his
lawyer.
And he is on the rolls and being a qualified voter by
the registrar of Montgomery County.
THE COURT:
MR. GLICKLER:
Well -And, Your Honor, I want to get
this on the record.
THE COURT:
The basis of that --
MR. HEATH:
Your Honor, it was what was in his
9
10
mind at the time, Your Honor.

MR. GLICKLER:
No, Your Honor.
Absolutely not.
11
The important thing that Mr. Heath just said is he's a
12
qualified voter --
13
14
THE COURT:
How was that determined?
information did that registrar have?
15
MR. HEATH:
It will show --
16
MR. WHITE:
Voter registration.
17
MR. GLICKLER:
Voter registration cards, Your
18
Honor, which are in evidence.
19
of who is registered and qualified.
In other words, this is a list

And Mr. Heath just said --
20
MR. HEATH:
Well, it says that.
21
THE COURT:
It makes it appear.
22
MR. HEATH:
Excuse me.
23
MR. GLICKLER:
24
25
What
It says eligible voters.
And all you have to do to be
eligible is fill out the voter registration card.

THE COURT:
Go ahead.

And if --
30
1
2
MR. HEATH:
But it's still probative.
That's
the first element of becoming a qualified voter.
THE COURT:
The objection is sustained.
I think that gets your points in.
But I
will allow 1 and 2.
State has an opportunity, of course, to argue that it has
limited relevance because it was facts specific as this whole
issue is concerning residence.
circumstance is different, but it has enough of the general
principles that I think this man is entitled to rely on and
It's facts specific.
And the
Every
10
others similarly situated in determining whether they have
11
knowledge that's reasonable in voting legally or illegally.
12
MR. GLICKLER:
Your Honor, the State would
13
request a limiting instruction -- if it is going to admit an
14
Attorney General opinion and Secretary State opinion, we
15
request a limiting instruction to the jury that that is not the
16
law or the Charge of the Court; that that is evidence that they
17
can consider.
18
overlap what's in the Charge of the Court, but that the Court
19
is not admitted it as the law.
20
Mr. Jenkins' defense.
21
22
23
But that what's in those opinions, it may
MR. HEATH:
It's admitted facts from
I would object to that because it
would be improper comment on the weight of the evidence.

THE COURT:
Well, I don't see that as an
24
unreasonable request because, again, I don't -- I don't think
25
there's harm to that at all because the instructions that I'm

31
going to give are going to be the -- much of the same
information that these authorities render.
But the key is, is their final determination is
facts specific and I don't want them to be misled in that.
it does present the same principles that the election code
enunciates that -- that he claims he relied on that State's
Exhibit 34 states.
8
9
But
And let me ask you this and this is a side note:

Why would the DA's office issue something like that?
They're
10
not in a position to be doing advisory --
11
MR. HEATH:
Yeah, they are.
12
THE COURT:
Are they?
13
MR. HEATH:
Well, not advisory but --
14
THE COURT:
This is what happens when they do
15
that.
16
MR. GLICKLER:
I already told Mr. White that Mr.
17
Grant should speak at the prosecutors seminar in September and
18
tell everybody not to do this again.
19
THE COURT:
This is a side note, but this is the
20
mess we got into because people would jump on any lifeline that
21
they recognize.
22
803's definition.
23
opinion giver, are they?
24
State does.
25
But is the DA's office -- they don't meet

That's an affirmative defense authorized
Like the AG and the Secretary of
MR. GLICKLER:
No.

32
1
2
THE COURT:
within what the law gives them credibility for.
3
4
They only -- they need the stay
MR. HEATH:
They can prosecute.
That they can
prosecute.
MR. GLICKLER:
THE COURT:
I --
I know.
This is like a declaratory
judgment or something that they give these -- these are pre-
-- I mean, they're in charge with prosecuting, but based upon
-- it ought to be a prosecutions decision upon looking at the
10
facts, not giving advisory opinions ahead of time.
11
always a good thing to help people avoid committing crimes, but
12
this is the problem you get is that people now jump on it as
13
reliance.
14
MR. GLICKLER:
15
THE COURT:
16
MR. GLICKLER:
And that's
Your Honor, and we --
Isn't that what your objection is?

No.
I mean, we offered this, but
17
I will also say that we bent over backwards with the State's
18
witnesses and the State's presentation to not elicit hearsay.
19
And even before the Court, there was information that there was
20
a meeting at a John Devine's house prior to the election.
21
this letter kind of told us is there's a shot across the bow, a
22
warning letter, et cetera.
23
the jury but --
24
25
THE COURT:
And
We didn't go into it in front of
Once it's in there, he can argue it.
You got to deal with it.

33
MR. GLICKLER:
Right.
We understand.
The
reason that we've been objecting to the Secretary of State
opinion and to the Attorney General opinion is because the
letter specifically says -- State's Exhibit 34 specifically
says before those two opinions:
review include.
seek counsel.
8
9
Some helpful resources for
And above that it says:
You're encouraged to
Our concerns are letting these opinions in is

that it's not exclusive, you know.
10
the door to everything.
11
reason for the State's objection.
12
ruling now.
And so, now we're opening
And that's what the State's -- the
13
THE COURT:
14
MR. GLICKLER:
I understand the Court's
What do you mean?

Mr. Heath made the case because
15
Mr. Yollick said when Mr. Heath asked, well, did you review
16
these opinions; he says, I read those opinions and more.
17
so that's -- the concern is that I don't think -- the letter
18
doesn't say read these two opinions and act based on those
19
two --
And
20
MR. HEATH:
It says seek counsel.
21
THE COURT:
Again, you are -- will have a fair
22
opportunity to argue a reasonable reading of this.
23
obviously doesn't open the door for the running of the bulls.
24
It's to be looked at in a reasonable fashion.
25
to be up to the jury to decide whether common sense and a

This
And it's going
34
reasonable reading of all of this applies in this case for or
against the defendant.
But, I think we've referred to it.
Exhibit 34 talks about it.
State's -- Defendant's Exhibits 1 and 2.
State's
But I'm going to limit it to
But, they also talk about decisions.
Let's not
go into that here.
it cites those decisions, but we're not going to -- I don't
want to open the door for getting those decisions in before
It says what it says in there.
It sum- --
10
this court.
11
Court decision.
12
principle of law that I think you're interested in getting out
13
in one --
And it does succinctly state with your Supreme

It does refer to that and it states the
14
MR. HEATH:
Okay.
15
MR. WHITE:
Your Honor, I think we'd object to
16
this witness interpreting and commenting on these Prairie View
17
opinions as well.
18
THE COURT:
I don't want him to do that.
It's
19
going to be for the jury to read and make their determination.
20
Because, again, I want them -- if that's what he relied on, I
21
want them to decide whether that was reasonable to rely on.
22
23
THE COURT:
Thank you, ladies and gentlemen.
24
All right.
Here's what's going to happen.
25
Defendant's 1 and 2 are going to be admitted.

And Defendant's
35
3, 4, and 5 -- I think you've withdrawn one of those.
4?
MR. HEATH:
Yes, Your Honor.
THE COURT:
Defendant's 3 and 5, the objection
is sustained.
Defendant's Exhibits 1 and 2, if you will...
I withdrew 4.
And the Court is going to note that --
MR. HEATH:
Yes, Your Honor.
THE COURT:
Limiting instruction here, ladies
and gentlemen.
to be entitled to review, if you wish, Defendant's 1 and 2.
In your deliberations, you certainly are going
10
But they speak for themselves.
11
to them in your deliberations, but do not consider the opinions
12
of others as to what they think it says.
13
And you will -- you may refer
But, this is from the evidence, what the
14
defendant referred to in his thinking, and the jury gets an
15
opportunity to review in making its decision on its review of
16
the law I provide to you and your deliberations on whether the
17
defendant committed an offense or not as alleged in this
18
indictment.
19
All right.
20
MR. GLICKLER:
21
22
Q.
(BY MR. HEATH)
Thank you.
After the election, Mr. Yollick, what
actions did you take with respect to the RUD election?
23
A.
After the election, I was -- I think this is what you
24
mean.
25
was somewhere around ten people, to represent them in a lawsuit
I was hired by, I forgot how many people it was, but it

TAB M
114
one I objected to -- I think it was -- well, there was a
question you were asked before that exhibit and you were asked,
did you have a list of the registered voters that were there
prior to the election.
5
6
7
A.
Remember being asked that?
I was asked if I had a list of the registered voters,
and I said I don't think I do.

Q.
All right.
Well, I want to show you what's been
premarked as D-5, meaning Defense Exhibit 5, and ask you if you
can identify what this is.
10
A.
Let me take a look.
11
12
13
14
I see what it is, and I recognize what it says

that it is.
Q.
All right.
And this is a public document under seal;
is that correct?
15
A.
It appears to be.
16
Q.
All right.
17
A.
That is the date on it.
18
Q.
Okay.
19
A.
21
that before.
22
Q.
24
25
And it's a certification of voter registrar,
correct?
20
23
And it's April 19, 2010; is that correct?
That is what it says that it is.
I have not seen
Certifying these are the voters -- are the voters who
are in the road utility -MR. WHITE:
This is
information from evidence that is not in the record.

281-723-9090
115
1
2
MR. WRIGHT:
their view and ask for it to be admitted in this case.
3
4
I would tender this to counsel for
MR. WHITE:
I'll object to the basis of
relevance on this document.
THE COURT:
MR. WRIGHT:
Okay.
Response?
This is in response to him saying
he didn't know how many people were registered voters in the
RUD district and it also will show these two missing voters
that show up on their own document that they put into evidence.
10
11
THE COURT:
overruled.
All right.
The objection is
Defendants Exhibit 5 is admitted.
12
(Defense Exhibit 5 admitted.)
13
MR. WRIGHT:
14
15
Q.
(BY MR. WRIGHT)
If I can use the Elmo.

Do you know in April of 2010 what
Carol Gaultney's position was?
16
A.
Yes, I do.
17
Q.
What was she?
18
A.
She was the elections administrator.
19
Q.
For Montgomery County?
20
A.
Yes.
21
Q.
Is that correct?
22
And so she had the names and addresses of
23
everybody that was registered to vote in Montgomery County; is
24
that correct?
25
A.
She had access to that information, yes.

281-723-9090
116
Q.
Okay.
And so this is a certification that she makes
of these are the people who are registered to vote that are
within the boundaries of the RUD district as of April 19, 2010;
is that correct?
A.
I think the way she put it is, this list represents a
best effort to accurately identify all eligible voters within
the boundaries of The Woodlands Road Utility District Number 1.
Q.
All right.
MR. WHITE:
Your Honor, may we approach?
10
THE COURT:
All right.
11
gentlemen for a little bench conference here.
12
13
(Bench conference outside the presence of the

jury.)
14
THE COURT:
15
MR. WRIGHT:
16
Make sure she can hear you.

I think they can hear in the jury
box when we talk out over here.
17
18
Bear with us ladies and
THE COURT:
Can they?
It should have been
MR. WHITE:
It's a little late in the game, but
muted.
19
20
this document is really about the Motion in Limine, which was
21
to --
22
23
24
25
THE COURT:
here.
Okay.
She can't hear.
Walk around
Speak in that direction.

MR. WHITE:
This document contains information
regarding other voters, potential voters, at least, registered

281-723-9090
117
in the district is evidence of other voters that was, in my
understanding, was going to be covered under the Motion in
Limine to keep out anything about -- because this case is about
these voters and whether or not they illegally voted and not
any other voters that are similarly situated in this district
or any other district.
MR. WRIGHT:
MR. GLICKLER:
Well, my understanding -They are not under accusation
except for the ten.
10
MR. WRIGHT:
My understanding was that we were
11
not going -- we were not supposed to go into other voters
12
scenario, but they opened the door to this with presenting this
13
documentation that shows these two voters missing from the
14
election day.
15
him and he can tell you who those voters are.
16
And this exhibit shows -- and I can show them to
THE COURT:
I don't think -- I think that was
17
explained, but nonetheless you still have a right to provide
18
information that's relevant that goes to the heart of the
19
issues here.
20
on the prosecutorial -- I don't think that's being approached.
21
I don't think that's the point, but I don't --
22
23
MR. WHITE:
THE COURT:
Is this
What's the point of other voters
being registered in the district?
24
25
So -- but what is the limine violation?
I don't see any relevance.
He says relevance and your response
to that?

281-723-9090
118
MR. WRIGHT:
My response to that is the lock-ins
that -- that there are -- well, several things.
There are the
voters at the Residence Inn and there are the two missing
voters.
are in here.
I think he can identify are probably the Laukiens that
THE COURT:
MR. WRIGHT:
Okay.
And that this is all part of, I
guess, the motive that my client had and the rest of them had
for trying to come in and take over the district in the first
10
place.
11
THE COURT:
All right.
12
MR. WHITE:
This issue with the Laukiens goes
13
directly to the matters of the --
14
THE COURT:
The issue of the what?
15
MR. WHITE:
The issue of these two voters goes
16
17
to the Motion in Limine in regard to the other voters.

THE COURT:
The word they're using that you're
18
losing is actually a last name.
19
thing whose name is Laukien.
There's two persons on this
20
MR. WHITE:
Okay.
21
THE COURT:
I see.
22
MR. WHITE:
K-E-A-N or something like that.
23
THE COURT:
All right.
L-A-U-K-E-N (sic).
24
goes to support motive for his acts.
25
you-all scratched into first.
Well, he says that it

Motive has been something
He's entitled to defend himself

281-723-9090
119
for relevant matters that defend his motives and make his case
under motive.
him to go into this.
keeping it focused on the issues and not going off into matters
that are not relevant to what the charge is and the elements of
the charge.
entitled to try to disprove or defend his motive.
8
9
I'm going to overrule your objection and allow

But again, let's just be cautious about
Motive, you-all went into motive; and he's
MR. GLICKLER:
As long as we're up here and on
this, the one thing I want to reiterate that the Motion in
10
Limine was about other voters beside the ten and whether or not
11
their votes were legally voting.
12
Limine --
13
THE COURT:
14
MR. GLICKLER:
15
We're not -I want to emphasize that we still
valid.
16
THE COURT:
17
MR. GLICKLER:
18
THE COURT:
19
MR. WRIGHT:
20
That's what a Motion in
And that's still valid.

Okay.
That doesn't seem to be relevant.

If they make that point, I'll
approach.
21
THE COURT:
22
(End of bench conference.)
23
THE COURT:
24
25
Yes, sir.
Thank you, ladies and gentlemen.
think we're ready to proceed.

MR. WRIGHT:
If I may proceed?

281-723-9090
120
1
2
THE COURT:
Q.
(BY MR. WRIGHT)
Yes.
So this list of eligibility --
remember there was a question I asked you about the two voters
that were missing off of that list that the State produced,
correct?
6
7
8
9
A.
I don't think you had asked me a question about that,
but I know what you're talking about.

Q.
I'm sorry.
were two voters missing.
10
11
12
It's my objection, I guess, because there
And you agree there was two voters that were not
listed on that election day roll?
A.
There were two voters who voted in early voting who
13
were not listed on the records of who voted on the Saturday of
14
the election day.
15
Q.
You know who those two voters were, don't you?
16
A.
Yes, I do.
17
Q.
Who were they on this list?
18
A.
Sure.
Can you point to them?
They were the two individuals that had a
19
residence.
20
I think it's 2630 North Crescent Ridge Drive.
It was Dirk and Kate Laukien, whose home was at --
21
Q.
And at that time that was the address, correct?
22
A.
It's the same address today.
23
Q.
Okay.
24
25
So when the exhibit has -MR. WRIGHT:
I'll tender this to the Court
Reporter, Your Honor.

281-723-9090
TAB N
137
impossible, but to ask the Attorney General's office if they
have -- they have a position paper, what they mean by it?
can't give advice, can they, though?
They
A.
They're not.
Q.
But the Secretary of State is a great place to go,
In that circumstance, no, sir.
right?
A.
Sure.
Q.
Because they're charged with handling the election
9
10
process, right?
A.
Sure.
11
MR. HEATH:
That's all the questions I have,
13
MR. WHITE:
Can I approach the ELMO, Your Honor?
14
THE COURT:
Yes.
12
Your Honor.
15
REDIRECT EXAMINATION
16
BY MR. WHITE:
17
Q.
18
Can you see the copy of your letter, Mr. Grant,
State's Exhibit 34?
19
A.
Yes.
20
Q.
So, with these resources that you include, was that a
21
comprehensive or exclusive list of resources that you
22
recommended to the reader of these letters?
23
24
25
A.
I don't think it's an exclusive list but it was what
I thought they needed to make the right decision.

Q.
Okay.
And in regards to the election code statute on

138
illegal voting, you understand that eligibility is also defined
elsewhere in the code?
A.
Yes.
Q.
And within eligibility, you understand there's a
residence requirement for voting?
A.
Yes.
Q.
And are you aware that residence is defined elsewhere
in the code?
A.
Yes.
10
Q.
And Section 1.015 of the code, residence is defined
11
as domicile --
12
13
MR. HEATH:
This is his witness.
14
can't lead.
16
careful.
It is redirect, so you
Make sure that you be
Leading questions are allowed to be asked by the
18
cross-examiner.
19
lead.
20
22
All right.
It's still your witness.
17
21
He's leading.
THE COURT:
15
Your Honor, I'm going to object.
But the direct examiner is not allowed to
But you can rephrase your question.

Q.
(BY MR. WHITE)
Mr. Grant, did you provide the
definitions of eligibility and residence in this letter?
23
A.
No, sir, I don't think I did.
24
Q.
And if you were to read the definition of residence,
25
which I just attempted improperly to read to you, do you find

139
in that definition of residence enough specificity for someone
to know what a residence is under Texas law?
A.
Could I review it?
Q.
Absolutely.
MR. HEATH:
this line of questioning.
area.
THE COURT:
Your Honor, I'm going to object to

He has already testified about this
All right.
Overrule.
A.
It certainly seems clear to me.
10
Q.
(BY MR. WHITE)
11
12
context of hotel stay?

A.
It seems --
13
14
And does it seem clear to you in the
MR. HEATH:
I'm going to object, Your Honor.
His opinion on that is not an issue.
It's what they believe.
15
THE COURT:
Response?
16
MR. HEATH:
He's evading their province.
17
MR. WHITE:
This is just a rebuttal of Mr.
18
Grant's understanding of the law that defense counsel went into
19
on cross, Your Honor.
20
THE COURT:
You're saying he's opened the door
22
MR. WHITE:
I am, Your Honor.
23
THE COURT:
Well, it certainly is the jury's
21
to this area?
24
final determination.
25
whether the defendant is guilty or not guilty as it is alleged
They're the ones who get to decide

140
in the indictment and how much credibility to give to the
witnesses.
That's their exclusive domain.
3
4
So, you want to ask him a question about how the

law applies to this fact situation?
MR. WHITE:
I'd like to ask him a question
applying to audience to which he wrote this letter.
believes the election code contains enough specificity for his
letter to be effective to those individuals for the purpose
that he intended.
10
MR. HEATH:
If he
And, Your Honor, my response is
11
simply this:
12
more importantly, it's going into the heads, asking him to
13
speculate on what they were going to glean from his letter.
14
15
Once again, it's evading their province.
THE COURT:
Q.
(BY MR. WHITE)
But
Overrule.
Mr. Grant, do you find enough
16
specificity in the definition of residence within the election
17
code having renewed your memory of Section 1.015?
18
A.
It appears to be pretty specific, yes, sir.
19
Q.
And do you find that specificity to be enough for
20
your letter to these individuals to have the desired effect
21
which you intended?
22
23
A.
I hoped it would.
MR. WHITE:
Pass the witness.
24
25
141
RECROSS-EXAMINATION
BY MR. HEATH:
Q.
4
5
6
And yet you told the newspaper reporter that you
thought that the law was vague, did you not?

A.
I believe the Secretary of State's interpretation has
been vague at times, yes, sir.
MR. HEATH:
That's all questions I have, Your
MR. WHITE:
Nothing further, Your Honor.
10
THE COURT:
11
MR. HEATH:
Yes, Your Honor.
12
THE COURT:
13
And how about a little break, ladies and
14
15
16
Honor.
gentlemen?
Thank you.
About ten minutes?

Okay.
You are excused.
And they're running out
like the running of the bulls.
17
THE BAILIFF:
18
THE COURT:
19
(SHORT BREAK TAKEN)
20
THE COURT:
Ready?
21
MR. WHITE:
Yes, Your Honor.
22
THE COURT:
All right.
23
THE BAILIFF:
24
(JURY PRESENT)
25
THE COURT:
All rise for the jury.
We're in recess.
State ready to go?
Bring the jury in.
All rise for the jury.
Please call your next witness.


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ACCEPTED

NO. 09-14-00458-CR AND NO. 09-14-00461-CR

SYBIL DOYLE, APPELLANT AND ROBERTA COOK, APPELLANT

CASEY LAW OFFICE, P.C.

IDENTITY OF PARTIES AND COUNSEL

Trial and Appellate Counsel

The State of Texas

Trial counsel never attempted to introduce several items of

The Texas Election Code employs both an indefinite and a

Texas Attorney General Opinion GA-0141 demonstrates

The common language of the statute leaves temporary

The definition of residence requires a person of

The overwhelming public records subject to judicial

The trial court erred as a matter of law in denying the motion

for directed verdict because at no point did the prosecution,

Stilwells testimony did not prove knew beyond a

McDuffees continuously retreated from a clear

The 1991 voter registration law change removed

Even assuming the State cleared the legal sufficiency for a

Both Appellants presented their uncontroverted testimony that

Trial counsel never attempted to introduce several items of

Trial counsel never, but should have, offered the

Trial counsel never offered, but should have, the scores of

449 U.S. 361 (1981) ...................................................................................... 48

STATEMENT OF THE CASE

This is a criminal trial alleging illegal voting

Appellants were indicted by a grand jury. Id.

Trial Courts Disposition:

The district court signed a final appealable

The majority of Stilwells testimony consisted of (1)

4RR.30 ln 10 - 4RR43 ln 13.

On cross-examination Stilwell described the civil election contest for the

eligible, and that he knew that. 5RR.117 ln 24 5RR.118 ln 5. He related that he

A. (McDuffee) As I knew the voting rules at that time and from

Q. Did you know that you were making an illegal vote? Is it

A. Today, yes. It was an illegal vote.

Q. Would it be fair for me to say that your -- you had some

A. I had apprehension on voting. I cannot answer that

Do you recall giving a different answer when asked if you knew

A. There's been several trials and the way I answer the

so there was never any elections

Okay. Do you recall testifying in previous hearings regarding

Q. And we had an opportunity to review some of that testimony

Q. Did you ever give a different answer to those questions or

A. The best I can remember, I never said that I thought it was

A. Only if I was the Defendant. It would be totally illegal. Does

election law. 6RR.28 ll 18-20.

upon which a rational jury could find, beyond a reasonable

clearly proved as a matter of law that no rational jury could have

The Texas Election Code employs both an indefinite and a

know what is prohibited, so that he may act accordingly. Vague laws

intention of making that place the person's home.

Texas Attorney General Opinion GA-0141 demonstrates the

Reference in GA-0141 to criminal prosecution, and reliance upon its

statutes to properly define vagrancy. Id. at 161-171. The laws unconstitutional

shows the incredibly arbitrary nature of residence in Montgomery County public

The common language of the statute leaves temporary

with prejudice, as the statue is unconstitutionally vague.

The definition of residence requires a person of ordinary

At a minimum, Section 1.015 of the Election Code requires a voter of

The overwhelming public records subject to judicial notice

A glut of government and business locations in Montgomery County have

McKinney, R. Johnson, M. Adams (with different homestead