Garza v. Alcala, No. 4-04-00855-CV (TX 4/26/2006)
| Decision Date | 26 April 2006 |
| Docket Number | No. 4-04-00855-CV.,4-04-00855-CV. |
| Parties | ROBERT GARZA, Appellant, v. DORA G. ALCALA, Appellee. |
| Court | Texas Supreme Court |
Appeal from the 83rd Judicial District Court, Val Verde County, Texas, Trial Court No. 25,187, Honorable David Peeples , Judge Presiding1.
AFFIRMED.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
Robert Garza appeals the trial court's judgment declaring Dora G. Alcala the winner of the City of Del Rio's mayoral election. We affirm the trial court's judgment.
On May 15, 2004, Del Rio, Texas conducted a mayoral election. Of the 4224 votes cast, the incumbent, the Honorable Dora G. Alcala, received 2149 votes or 50.87%. After the election, one of her five challengers, Robert Garza, who received 1157 votes, filed a contest contending legal votes were not counted and illegal votes were counted. Garza asked the court to determine the true outcome of the election or, if the court was unable to do so, declare the election void and order a runoff. During the ensuing two-day bench trial, the trial court heard testimony from ninety-seven live voter-witnesses, read numerous depositions, and reviewed numerous exhibits. The testimony of many of the voter-witnesses established three Alcala supporters — Dora Gonzalez, Olivia Escobedo, and Alma Staples — provided assistance in voting or the mailing of ballots without complying with the Texas Election Code. Approximately half-way through the trial, the trial judge announced that, rather than compelling a voter-witness to reveal for whom she voted, which the trial judge viewed as "a serious thing," he would instead assume, unless there was evidence to the contrary — "just to be realistic" — a voter-witness voted for Alcala if the voter-witness had received unlawful assistance from an Alcala supporter. Although Alcala's attorney "excepted" to this ruling, he later took advantage of it by seeking to reduce Garza's total by four votes, representing four carrier envelopes that were picked up and signed for but not deposited in the mail — by one of Garza's supporters, Gloria G. Garcia. Garza did not object to the trial court's ruling until he filed his motion for new trial.
After the trial concluded, the trial court denied Garza's contest and declared Alcala the winner, finding as follows:
1. In the May 15, 2004 election in Del Rio, 4224 votes were cast for six candidates for mayor. Contestee Dora Alcala received 2149 [sic] of those votes.
2. Seventy-five of those votes for Dora Alcala should not have been counted because the seventy-five voters, who voted early by mail, received unlawful assistance from persons who helped them mark their ballots and/or took possession of the ballots for the purpose of mailing them, without signing the oath and information mandated by §§ 64.034, 86.010 & 86.0051. Under §§ 86.010(d) and 86.006(h) those votes may not be counted. The seventy-five votes are therefore subtracted from Dora Alcala's vote total (reducing her vote total to 2074) and from the total number of votes cast.
3. Six votes for Robert Garza were cast in violation of the same election code provisions cited in ¶ 2 above. Six votes are therefore subtracted from his vote total and from the total number of votes cast.
4. The votes of two voters who attempted to vote for Robert Garza were improperly disallowed — one because of a registration dispute and the other because of an incorrect comparison of signatures. Those two votes are therefore added to Robert Garza's vote total and to the total number of votes cast.
5. To summarize the findings and conclusions stated in ¶¶ 1-4 above: (i) The total number of votes for all candidates was 4145 (4224 minus the 75 improper Alcala votes, minus the 6 improper Garza votes, plus the 2 Garza votes improperly disallowed). (ii) Dora Alcala received 2074 votes (2149 minus 75). (iii) The other five candidates collectively received 2071 votes (4115 minus 2074).
"To overturn an election, the contestant has the burden of proving by clear and convincing evidence that voting irregularities materially affected the election results." Tiller v. Martinez, 974 S.W.2d 769, 772 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.) (). "The contestant's burden is a heavy one and the declared results of an election will be upheld in all cases except where there is clear and convincing evidence of an erroneous result."Price v. Lewis, 45 S.W.3d 215, 218 (Tex. App.-Houston [1st Dist.] 2001, no pet.).
"The clear and convincing standard requires more proof than the preponderance of the evidence standard in ordinary civil cases." Id. "This standard is the degree of proof that will produce in the mind of the trier of fact a 'firm belief or conviction' as to the truth of the allegations sought to be proved." Id. (). "To prove that the outcome was materially affected, the contestant must show that illegal votes were counted or an election official prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud, illegal conduct, or mistake." Tiller, 974 S.W.2d at 772 (citing Tex. Elec. Code Ann. § 221.003 (Vernon 1986) and Alvarez, 844 S.W.2d at 242). Tiller, 974 S.W.2d at 772 (citing Tex. Elec. Code Ann. § 221.012 (Vernon 1986)). "The standard of review in an appeal from a judgment in an election contest is a determination whether the trial court abused its discretion." Tiller, 974 S.W.2d at 772.
Garza first argues the trial court's refusal to make additional findings of fact and conclusions of law to identify by voter name each disallowed ballot has prevented Garza from pursuing his appeal because he and this court "must guess how the trial court characterized the 106 ballots of which 96 voter witnesses testified." We disagree.
"After the court files original findings of fact and conclusions of law, any party may file with the clerk of the court a request for specified additional or amended findings or conclusions." Tex. R. Civ. P. 298. However, "[t]he trial court ... as the trier-of-fact has no duty [to] make additional or amended findings that are unnecessary or contrary to its judgment; a trial court is only required to make additional findings and conclusions that are appropriate." Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 254 (Tex. App.-Houston [14th Dist.] 1999, pet. denied). Additional findings are appropriate "only if they have some legal significance to an ultimate issue in the case."Id. at 255. But even if additional findings might be appropriate, "[t]here is no error when the requested additional findings were disposed of directly or indirectly by the original findings, and the failure to make additional findings was not prejudicial to the appellant." Id. at 257 n.10. "The failure to make additional findings is not prejudicial to the appellant if the refusal does not prevent an adequate presentation on appeal." Id.
Here, Garza need not guess at the legal and factual bases for the trial court's judgment, as evidenced by Garza's brief in which he identifies and challenges several of the trial court's legal rulings, claims to identify seventy-nine (rather than the trial court's seventy-five) Alcala ballots that should have been invalidated, and challenges the trial court's invalidation of the six Garza ballots. Because Garza is able to identify and challenge the legal conclusions and fact findings underlying the trial court's judgment, the trial court's refusal to make additional findings and conclusions does not prevent an adequate presentation on appeal. See id. We therefore hold the trial court did not err in refusing to make additional findings and conclusions to identify by voter name each disallowed ballot. See Alvarez, 844 S.W.2d at 242 ().
Garza next argues the trial court's re-tabulation of the votes is incorrect. We again disagree.
Garza first argues the evidence establishes there were in fact seventy-nine illegal Alcala votes rather than seventy-five as the trial court found. However, Garza's count includes ballots the trial court could reasonably have found were not established to have been illegal by clear and convincing evidence or unchallenged legal rulings.
Maria and Olivia Tijerina — Garza's count includes Maria and Olivia Tijerina; and he argues under his fourth issue that "the trial court improperly allowed [their] votes."
Maria Tijerina testified that she marked her ballot without assistance, put it in the envelope, and signed it; but, because she could not get to the mailbox, her ballot was mailed by her neighbor, Luisa Blanco Sifuentes. Maria's sister Olivia's ballot was marked, signed, and mailed in the same manner. After Garza rested — but before he reopened — the trial judge expressly stated on the record that his tally at that point was seventy-four illegal Alcala votes; and this...
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