Green v. Reyes

Citation836 S.W.2d 203
Decision Date30 June 1992
Docket NumberNo. B14-92-00680-CV,B14-92-00680-CV
PartiesRaymond Eugene GREEN, Appellant, v. Ben REYES, Appellee. (14th Dist.)
CourtTexas Court of Appeals

Eugene Jones, Houston, Randall B. Wood, Austin, Jack C. Ogg, Houston, for appellant.

William H. White, Gerald M. Birnberg, Houston, for appellee.




This is an accelerated appeal in an election contest. Appellant, Raymond Eugene Green, appeals from the trial court order of a new election in the Democratic nomination for United States Representative to the 29th Congressional District. In eighteen points of error, appellant asserts that the trial court abused its discretion by declaring the election canvass void and ordering a new election. We affirm.

Appellee, Ben Reyes, brought an election contest pursuant to section 232 of the Election Code challenging the final canvass as not reflecting the true outcome of the election. See TEX.ELEC.CODE ANN. § 232.001 et seq. (Vernon 1986). Both appellee, Ben Reyes, and appellant, Raymond Eugene Green, were candidates in the Democratic primary runoff election for Democratic party nominee to the 29th Congressional District. The April 14, 1992 election primary runoff yielded a 180 vote margin of victory for appellant. Appellee's election contest petition argued that a significant number of voters had cast votes in both the Republican primary contest on March 10, 1992 and subsequently participated in the April 14, 1992 Democratic primary runoff. Under the Texas Election Code, the ballot of voters who cast ballots in both the Republican and Democratic primary elections are void. See TEX.ELEC.CODE ANN. § 162.013 (Vernon 1986). Therefore, such ballots are illegal votes and not legally countable. See TEX.ELEC.CODE ANN. § 221.003 (Vernon 1986). Appellee provided a list of 431 names and addresses of the illegal crossover voters which had been compiled by the accounting firm of Arthur Andersen & Company. The company had compiled the list through a detailed comparison of voter names, voter registration numbers and precinct numbers. The list included the names of only those voters who had voted in both the March 10, 1992 Republican Primary and the April 14, 1992 Democratic Primary runoff.

During an eleven day trial, the court heard testimony from 313 of the 431 allegedly illegal voters. Many of the voters appeared at trial to testify; a few were deposed by telephone; and some others submitted affidavits. Many witnesses expressed dismay and anger that the trial court was demanding that they reveal for whom they had voted when generally voters enjoy a constitutional right not to do so; however, the trial court properly advised the voters that this protection does not extend to voters who have cast illegal votes. See, e.g., Ex Parte Henry, 132 Tex. 575, 126 S.W.2d 1 (1939). See also TEX.ELEC.CODE ANN. § 221.009(a) (Vernon 1986). Nevertheless, the trial court issued admonishments to each witness that although voting in both political party's election primary is a crime, "nothing you testify to in this case can ever be used against you." The court determined that the number of illegal votes was truly 429 and that of those votes, 220 illegal votes were cast in favor of Green, 75 illegal votes in favor of Reyes, 8 votes were not illegal at all 1, and 126 votes were unable to be attributed to either candidate because the testimony of the voter was unable to be obtained or the voter did not remember how he or she voted. Thereafter, both appellant and appellee brought forth expert testimony to show that statistically the vast majority of the 126 undetermined illegal votes would have been cast for their opponent.

After deducting the number of attributable illegal votes from each side, Green maintained a 41 vote margin of victory. Once the trial court has determined which illegal votes it can subtract as attributable to either candidate and which illegal votes are unascertained, section 221.012 provides that:

(a) If the tribunal hearing an election contest can ascertain the true outcome of the election, the tribunal shall declare the outcome.

(b) The tribunal shall declare the election void if it cannot ascertain the true outcome of the election.

TEX.ELEC.CODE ANN. § 221.012 (Vernon 1986). The trial court exercised its authority under the election code and ordered the election void because the margin of victory was less than the number of unascertained illegal votes. TEX.ELEC.CODE ANN. § 221.009(b) (Vernon 1986).

In support of this ruling, the trial court issued its Findings of Fact and Conclusions of Law as follows:

A. Findings of Fact

1. On April 14, 1992, the Democratic Party of Harris County held a primary run-off election to determine the party's nominee for the newly created 29th Congressional District. The two men running for that election were Ben Reyes, a long-time Houston city councilman, and Raymond Eugene Green, a state senator from the Houston area. The final canvass of the April 14 run-off election showed that Green had won by a 180 vote margin. The April 14 runoff followed a March 10, 1992 general primary, held in both major political parties. Pursuant to a stipulation made by the two parties the final canvass of the election reflected the following totals for each of the candidates: Raymond Eugene Green--15,844 votes; Ben Reyes--15,664 votes.

2. After Reyes had filed this lawsuit, but before the trial had commenced, the Harris County Clerk, Anita Rodeheaver, discovered 22 unopened and uncounted ballots from the Democratic run-off. The ballots were later opened under the supervision of the court and found to reflect the following totals for each of the candidates: Raymond Eugene Green 14 votes, and Ben Reyes 8 votes. When added to the vote count stipulated to by the parties, the court finds that the final canvas should be adjusted to represent the following totals for each of the candidates: Raymond Eugene Green--15,858 votes; Ben Reyes--15,672 votes. This produces a margin of victory for Green of 186 votes.

3. Voting records kept by the Harris County Clerk's office showed that 431 individuals had signed-in to vote at the Republican primary on March 10, 1992 and subsequently signed-in to vote in the Democratic Primary Run-off election on April 14, 1992. See Plaintiff's Exhibits 1a-1f; Testimony of Barbara Duganier of Arthur Andersen & Co.

4. Additional evidence indicates that the correct number of individuals that apparently voted in both the Republican primary and the Democratic run-off was 429. Of these, approximately 97.5% (418) probably voted in the Green/Reyes race in the multi-race run-off election, because that percent of all run-off voters cast a vote for one candidate or the other in the Green/Reyes race.

5. During eight days of the trial, Reyes caused subpoenas to be issued for 292 of the 429 identified "crossover" voters. Of those 292 voters, 246 voters actually appeared to give evidence either in person (212) or through telephone depositions (34) supervised by the court. The number who testified by deposition were permitted to do so because of disabilities or circumstances that materially impaired their ability to come to the courthouse. The remaining individuals fell into several different categories: crossover voters that were subpoenaed but failed to appear; crossover voters that resisted service; crossover voters that evidence showed had moved and could not be located; and others that neither party chose to subpoena. Reyes also tendered into evidence affidavits from eight crossover voters. The affidavits were admitted into evidence as statements against interest. TEX.R.CIV.EVID. 803(24).

6. Following presentation of the Contestant's witnesses, the Contestee presented 59 voter witnesses in court over a two day period.

7. At the close of evidence, the court had heard evidence concerning the voting conduct of 313 alleged crossover voters. Of those 313 voters, the court finds that they included 220 illegal votes for Green, 75 illegal votes for Reyes, 10 illegal voters who could not remember how they voted or if they voted in the race in questions, and 8 votes that were not illegal. These findings must be viewed with caution since many of the voters who disclosed their vote did so with qualifications such as "I think" or "I probably."

8. The voting conduct of 126 of the identified crossover voters could not be ascertained for reasons such as failed memory (the 10 described in FOF 7), failure to appear pursuant to subpoena, obstacles to service, or for other reasons were not called to testify.

9. Subtracting the ascertainable illegal votes (See FOF 7) from the candidates' total votes would produce a 41-vote margin of victory for Green.1 This margin, however, based only on a subset of the entire apparent illegal voter population, cannot provide the degree of certainty necessary for this court to declare the true outcome of the election. The number of unascertained votes is greater than three times the margin of victory established by the sample of voters whose voting conduct was determinable by the court. These unascertained votes must be considered by the court in making its judgment. TEX.ELEC.CODE ANN. § 221.011 (Vernon's 1986).

10. The court finds that there was no reliable way of determining how the 126 unascertained votes should be considered to further adjust the votes for each candidate. Contestant's expert witness on the probable tendencies of the crossover voters concluded that the crossover voters as a group were likely to be Green voters. Contestee's expert witness concluded that the voters that did not testify were predominantly Hispanics, and likely to favor Reyes. Applying mathematical projections to the 313 voters whose conduct and memory had been revealed at trial, would produce a victory for Reyes, that is, 70.28% illegal Green votes (220 of 313) X 429 = 302 to be deducted from Green;...

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