Guerrero v. State

Decision Date21 November 1991
Docket NumberNo. 13-91-083-CR,13-91-083-CR
PartiesLucilla GUERRERO, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Charles Manning, Beeville, for appellant.

Jose L. Aliseda, Jr., Beeville, for appellee.

Before NYE, C.J., SEERDEN, J., and GERALD T. BISSETT 1, Assigned Justice.

OPINION

NYE, Chief Justice.

A jury found appellant guilty of unlawful assistance to a voter. The trial court assessed punishment at ninety days in jail, probated for six months, a three hundred dollar fine and court costs. By four points of error, appellant complains of (1) insufficient evidence, (2) unconstitutionally overbroad and vague language in the charging statute, (3) a defective jury charge, and (4) error in the admission of evidence, and (5) improper jury argument. We affirm the trial court's judgment.

In her fourth point of error, appellant claims that there is insufficient evidence to convict her of unlawful assistance of a voter. Tex.Elec.Code Ann. § 64.036 (Vernon 1986). In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. This is true in both direct and circumstantial evidence cases. Marroquin v. State, 746 S.W.2d 747, 750 (Tex.Crim.App.1988); Nieto v. State, 767 S.W.2d 905, 908 (Tex.App.--Corpus Christi 1989, no pet.).

In establishing this offense, the State had to show that appellant, (1) while assisting the voter, (2) knowingly (3) suggested (4) how the voter should vote. Tex.Elec.Code Ann. § 64.036(a)(3) (Vernon 1986). Appellant was a campaign worker for Adam Gonzales, who ran for Justice of the Peace for Bee County in the 1990 election. On the day for absentee voting, appellant called at the home of Mrs. Benitez to assist her in filling out an absentee voting ballot. The Election Code allows a disabled voter to choose someone other than her employer, employer's agent, or officer or agent of the voter's labor union to assist her in marking her ballot. See Tex.Elec.Code Ann. § 64.032(c) (Vernon 1986). This, apparently, was the capacity in which appellant called at the house that day. Mr. Benitez and other family members were present, but Mrs. Benitez was the only one voting at the time. Mrs. Benitez's granddaughter, Gracie Garcia, testified that she was in the room when appellant was assisting Mrs. Benitez. Garcia also testified that, while Mrs. Benitez was marking her ballot, she heard appellant tell Mrs. Benitez that, "she was going to tell them the truth ... that if they were going to vote, they should vote for Adam Gonzales." While speaking these words, appellant pointed to the candidate's name on the ballot. Garcia further stated that, soon after the ballots were marked, appellant gave Mrs. Benitez five dollars. Mrs. Benitez's daughter, Aldemira Garcia, saw the five dollars change hands, and appellant also admits to this exchange. It is undisputed that Mrs. Benitez voted for Adam Gonzales.

The State introduced testimony that this incident was discovered when, forty-five days after the election, the Bee County Sheriff's Department began an election investigation because of complaints that elderly Hispanic voters had been intimidated by election officers assisting in the absentee balloting. An investigator interviewed both Mr. and Mrs. Benitez. The interviewer asked, "Did anyone by word, sign, or gesture suggest or tell you how you should vote?" and Mrs. Benitez answered "Yes, Lucilla stated that my husband and I should vote for Adam Gonzales as we were voting."

Appellant admits pointing to Gonzales's name on the ballot, but explains that Mrs. Benitez had already decided to vote for Gonzales and had asked appellant to show her where his name was so that she could mark her choice. Neither does appellant deny giving Mrs. Benitez five dollars. She claims that it was a personal gift for the Benitez's son who is in prison.

Appellant claims that the only evidence of wrongdoing under the statute was Gracie Garcia's testimony. The State did rely heavily on Garcia's testimony, but the record also shows that other evidence corroborated her story--the Sheriff's Department report in which both Mr. and Mrs. Benitez stated appellant had told them to vote for Adam Gonzales, and all the witnesses' admission of the five-dollar exchange. In reviewing the entire record, we find that a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Sufficient evidence existed to support the jury's verdict of guilty. Accordingly, point four is overruled.

Appellant, in her first point of error, claims that § 64.036 of the Election Code is unconstitutionally overbroad and vague. That portion of the statute reads:

(a) A person commits an offense if the person knowingly:

(3) while assisting a voter suggests by word, sign, or gesture how the voter should vote.

Appellant concedes that it is constitutionally permissible to prohibit some expression in the area of voter assistance and quarrels only with the terms "assistance," "suggests," and the phrase "how the voter should vote." She argues that these words make the statute overbroad and vague. She gives several examples of how the statute would impose criminal liability upon persons exercising First Amendment rights. For example, it would outlaw a campaign worker promoting her candidate while providing a voter with a ride to the polls; it would prohibit family discussions of candidate choices while one family member helps another fill out her ballot; it would prohibit demonstrations on voting which utilize sample ballots. Persons engaging in these activities could be punished under this statute because they are "assisting the voter," and their words or actions could be construed as a "suggestion" of "how the voter should vote." Furthermore, appellant contends, the actor could be punished even though she renders aid to the voter at the voter's request. Such conduct she claims, is protected by the First Amendment and Article I, Section 8 of the Texas Constitution, and thus, the statute is overbroad. We disagree.

A statute is impermissibly overbroad if, in addition to proscribing activity which may be forbidden constitutionally, it sweeps within its prohibitions a substantial amount of expressive activity which is protected by the First Amendment. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Morehead v. State, 807 S.W.2d 577, 580 (Tex.Crim.App.1991); Bynum v. State, 767 S.W.2d 769, 772 (Tex.Crim.App.1989). We find that appellant was not engaged in protected speech.

The regulation of state elections is a legitimate exercise of the state police power. Tex. Const. art. 6, § 4 and art. 16, § 2 (giving the legislature the power to pass only those laws which provide for the orderly conduct of elections and ensure the purity of the ballot box). 29 C.J.S. Elections § 4 (1965); see also Mitchell v. Jones, 361 S.W.2d 224, 227 (Tex.Civ.App.--Texarkana 1962, no writ). Providing special assistance to disabled or illiterate voters is a privilege which is conferred by statute. Tex.Elec.Code Ann. § 64.031 et seq. (Vernon 1986); 29 C.J.S. Elections § 208(a) (1965). The assistance must be given in the manner prescribed by the statute, and it is meant to be mechanical only. The assistant may not inform or guide voters in the choice of candidates. See McJimsey v. Yates, 324 S.W.2d 438, 440-441 (Tex.Civ.App.--Texarkana 1959, writ dism'd); Carter v. White, 161 S.W.2d 525, 526 (Tex.Civ.App.--El Paso 1942, no writ); 29 C.J.S. Elections § 208(a) (1965). The purpose of imposing criminal liability for illegal assistance is to prevent fraud or undue influence which could end in the substitution of some other person's will for that of the voter's. 29 C.J.S. Elections § 208(a) (1965).

Section 64.036 of the Election Code is just such a provision. See Prado v. Johnson, 625 S.W.2d 368, 369 (Tex.Civ.App.--San Antonio 1981, writ dism'd) (the purpose of the Election Code is to safeguard the purity of the ballot box ... and to prohibit error, fraud, mistake, and corruption). We find that § 64.036 of the Texas Election Code does not violate the First Amendment or the Texas Constitution.

The provisions surrounding § 64.036 limit the application of the statute so that it is not overbroad. The statute refers to "assistance" as assistance "in marking the ballot," and later provisions describe how assistance is to be rendered. Tex.Elec.Code Ann. §§ 64.031-64.034 (Vernon 1986). 2 Case law interpreting the assistance provisions of the election statutes preceding the present version has established that "assistance" means aid in the actual marking of a voter's ballot. Carter, 161 S.W.2d at 526; Fuentes v. Howard, 423 S.W.2d 420, 424 (Tex.Civ.App.--El Paso 1968, writ dism'd); see also Op.Atty.Gen.1987 No. JM-736, p. 3,431. The permissible acts of assistance are limited to reading the ballot to the voter and answering the voter's questions, or filling out the voter's ballot for her in its entirety. Since only these acts are allowed, the phrase "while assisting the voter" must necessarily refer only to the time period during which actual voting takes place. This reading is supported by § 64.034, which states that the election assistant's oath is to be administered "at the polling place," and by § 64.035, which reads: "after assistance has been provided in marking the ballot, the ballot shall be folded and deposited in the ballot box by the voter...." These sections establish that the context for voter assistance is when the voter is actually marking her ballot. Title Seven of the Election Code incorporates these provisions into the procedure for assistance during absentee voting, and appellant concedes the need for, and the legitimacy of, such...

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