Jenkins v. State

468 S.W.3d 656

James Alan Jenkins, Appellant

v.The State of Texas, Appellee

NO. 14–13–00662–CR

Court of Appeals of Texas, Houston (14th Dist.).

Majority and Dissenting Opinions filed June 4, 2015

Discretionary Review Granted September 16, 2015

George McCall Secrest, Jr., Houston, TX, for Appellant.

Jon Rodney Meador, Austin, TX, for State.

Panel consists of Justices Boyce, Busby, and Wise

OPINION

Ken Wise, Justice

A jury convicted appellant James Alan Jenkins of illegally voting in an election in which he knew he was not eligible to vote. Jenkins was sentenced to three years' confinement in the Texas Department of Criminal Justice and ordered to pay a $10,000 fine. Jenkins contends that the trial court erred by refusing to instruct the jury on the defense of mistake of law. Jenkins also contends that section 1.015 of the Election Code is unconstitutionally vague as applied to him. Because we conclude that Jenkins was entitled to a jury instruction on the statutory defense of mistake of law, we reverse and remand.

Factual and Procedural Background

This case arises out of an election held on May 8, 2010, for members of the Board of Directors of the Woodlands Road Utility District No. 1 in Montgomery County, Texas (the “RUD”). The RUD was created to provide for the construction and maintenance of roadways in and around the Woodlands. The RUD's boundaries encompass primarily commercial properties that pay property taxes used to fund the RUD's projects.

1. Events leading up to the trial

Adrian Heath, a politically active resident of Montgomery County and a long-time friend of Jenkins, learned of the RUD's existence sometime in 2009 while researching issues of local government debt. Heath did not reside in the RUD. He did, however, regularly use the roads and frequent the businesses located in the RUD.

Heath learned that the RUD was formed in 1991 and was governed by a board of five directors who were appointed and then confirmed by an initial election in 1992. Heath became concerned when he discovered that regularly contested elections for board members had not been held since 1992.¹ Heath believed that the RUD's board acted primarily to benefit the Woodlands Development Company, the developer of the Woodlands, rather than the interests of the local residents.

Heath learned that three of the RUD directors' terms would expire in 2010, so he researched the residency requirements for voting and investigated whether there were registered voters residing in the RUD. As part of his research, Heath contacted state and local election officials and others, reviewed documents, and consulted an attorney. Armed with what he had learned, Heath sought to raise awareness about the RUD through various media outlets. He made presentations to groups and actively encouraged people to run against the incumbent RUD directors. Heath also shared what he had learned with Jenkins.

For nearly twenty years, Jenkins had lived with his family at 16 Pastoral Pond Circle in the Woodlands, which is not within the RUD. But, he used the roads and engaged in activities within the RUD. Jenkins was politically active but had been unaware of the RUD's existence. Jenkins's political activities included regularly attending political meetings and, at one point, running unsuccessfully for a county political party chairmanship. Before moving to the Woodlands, Jenkins served as a city councilmember of West University Place. Jenkins had also earned a master's degree in laser physics and was the owner of World Wide Microsystems, Inc., a company that designs, manufactures, and sells control equipment for industry.

In late February or early March, Heath asked Jenkins to invite a group of people to attend a meeting concerning the RUD at a public library in the Woodlands. Jenkins invited Richard McDuffee, Peter J. Goeddertz, Bill Bemtsen, and Jim Doyle, all of whom attended the meeting, along with Jenkins and a few other people. At the meeting, Heath gave a presentation about the structure of the RUD, the lack of contested elections for members of the RUD's board of directors, and his understanding of the requirements for establishing a residency for voting purposes in Texas. He also provided copies of a map of the RUD and a formal election law advisory opinion of the Texas Secretary of State.² The January 22, 2004 opinion, titled Election Law Opinion GSC–1, addressed the application of Texas residency requirements to college students attending Prairie View A & M University (the “Secretary of State opinion”).

The Secretary of State opinion set out in full the Texas Election Code statutes governing voter eligibility and qualifications, and included the Election Code's definition of “residence” as follows:

§ 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 intention of making that place the person's home.

(e) A person who is an inmate in a penal institution or who is an involuntary inmate in a hospital or eleemosynary institution does not, while an inmate, acquire residence at the place where the institution is located.

Tex. Elec.Code Ann. § 1.015 (Vernon 2003).

The Secretary of State opinion also included a discussion of applicable federal and state case law, including Mills v. Bartlett, 377 S.W.2d 636 (Tex.1964), which was cited for the following statements concerning a voter's residence:

The meaning that must be given to [the term ‘residence’] 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.

...

Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that moment the residence is fixed and determined. There is no specific length of time for the bodily presence to continue.

Mills, at 637 (emphasis added).

The Secretary of State opinion concluded by noting that “[t]hese principles apply equally to college students as well as other voters, and no more can be required of them in order for them to register and vote in the State of Texas.”

After the meeting, Jenkins further investigated the RUD's operations. Jenkins was concerned that although the RUD's activities affected everyone in the Woodlands, the residents had no input into its activities. Jenkins continued to meet with McDuffee, Goeddertz, Bemtsen, and others about placing challengers on the ballot and encouraging people to change their residences to vote in the upcoming election. Some of the meetings were held at Jenkins's business office. Ultimately, McDuffee, Goeddertz, and Bemtsen agreed to run against the incumbent directors. They each completed applications for places on the ballot, listing their home addresses, which were not inside the RUD, as their permanent residences.³

Jenkins had been registered to vote from his residence at 16 Pastoral Pond Circle, which was not within the RUD, for about eighteen years. On April 5, 2010, however, Jenkins signed a Texas Voter Registration application changing his residence address to 9333 Six Pines Drive, which was the address of a Marriott Residence Inn located within the RUD. On the form, Jenkins listed 16 Pastoral Pond Circle as his mailing address.

Heath, Bemtsen, McDuffee, and Goeddertz similarly changed their voter registration addresses to the hotel address, as did five others: Sybil Doyle and her daughter Roberta Cook, Thomas Curry, and brothers Benjamin and Robert Allison. As of the dates each of these people signed their voter registration applications, none of them had stayed at the Residence Inn at any time in 2010.

County deed records showed that Jenkins and the others owned homes outside the RUD boundaries, except for Benjamin and Robert Allison. The Allison brothers lived in their father's home, which was also outside the boundaries of the RUD. Additionally, Montgomery County Appraisal District records showed that in 1993, Jenkins had applied for, received, and had never withdrawn the homestead exemption he received for his home at 16 Pastoral Pond Circle. Doyle, Goeddertz, Cook, McDuffee, Curry, Heath, Berntsen, and the Allison brothers' father likewise maintained homestead exemptions for their homes.

RUD representatives became aware that several individuals had registered to vote using the address of a hotel in the RUD, and they asked the Montgomery County District Attorney's Office to intervene. On April 21, 2010, First Assistant District Attorney Phil Grant sent Jenkins and most of the others a letter informing them that the district attorney's office had received an official complaint alleging fraudulent voter registrations within the RUD for the upcoming May 8, 2010 election (the “Grant letter”). The Grant letter reflected that it was being sent to all voters registered in the RUD “for informational purposes only,” and encouraged recipients with concerns about the legitimacy of their current voter registration to seek the advice of counsel.

The Grant letter identified “[s]ome helpful resources for review,” including the same Secretary of State opinion Heath had previously distributed, and Attorney General Opinion Number GA–0141, dated February 4, 2004 (the “Attorney General opinion”). Like the Secretary of State opinion, the Attorney General opinion was a response to an official inquiry into voter eligibility and...