Guerra v. Garza

• Decision Date: 04 November 1993
• Docket Number: No. 13-93-051-CV,13-93-051-CV
• Citation: 865 S.W.2d 573
• Parties: Juan Angel GUERRA, Appellant, v. Gustavo Ch. GARZA, Appellee.
• Court: Texas Court of Appeals

Page 573

865 S.W.2d 573

Juan Angel GUERRA, Appellant, v.Gustavo Ch. GARZA, Appellee.

No. 13-93-051-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 4, 1993.

Rehearing Overruled Dec. 9, 1993.

Juan A. Guerra, pro se.

Eduardo R. Rodriguez, Laura J. Urbis, Rodriguez, Colvin & Chaney, Brownsville, Chris A. Brisack, Neil E. Norquest, McAllen, for appellee.

Before FEDERICO G. HINOJOSA, Jr., DORSEY and GILBERTO HINOJOSA, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

This is an appeal of an election contest for the office of County Attorney of Willacy County.Juan Angel Guerra, the Democratic Party nominee, sued appellee, a write-in candidate, contesting the canvass results of the November 3, 1992, general election which declared appellee the winner.Guerra alleged that appellee and his workers conspired to obtain votes and defraud the voters of Willacy County of their true choice for County Attorney by committing numerous violations of the Texas Election Code.Guerra requested that the trial court 1) order the ballot boxes opened, 2) order an inspection and recount of the ballots, and 3) upon recount, declare him the winner.Alternatively, he alleged that due to the illegalities, the true outcome was not determinable, and the trial court should order a new election.After a bench trial, the trial court denied Guerra's contest and declared appellee the winner.Guerra appeals by seventeen points of error.We reverse and remand.

Guerra and appellee do not dispute the results of the final canvass which showed that appellee received 2,739 votes and that Guerra received 2,451 votes.Thus, 288 votes separated the two candidates.The voters cast their votes on paper ballots.By his election contest, Guerra challenged the canvass results under §§ 221.002,221.003, and221.008 of the Texas Election Code¹ as not reflecting the election's true outcome.

In support of its ruling, the trial court issued its "FINDINGS OF FACT AND CONCLUSIONS OF LAW" which state in relevant part as follows:

FINDINGS OF FACT

1.The final canvass of election results from the 1992 general election of District and County Attorney for Willacy County, Texas demonstrates that Garza received 2,739 votes and Guerra received 2,451 votes.

2.The final canvass of votes, therefore, demonstrates that Garza won the election by 288 votes.

3.The evidence failed to establish the existence of a fraudulent and/or illegal plan, conspiracy, or scheme to defraud the voters of Willacy County, Texas as set forth in ... Contestant's Original Petition.

4.The evidence failed to establish that the election result as certified did not reflect the true outcome of the election.Specifically, the evidence failed to establish:

a) that if any illegal votes were cast, the number of such votes were sufficient to have influenced the outcome of the election;

b) that if any eligible voters were prevented from voting, the number of such voters were sufficient to have influenced the outcome of the election;

c) that if any legal votes were not counted, the number of such votes were sufficient to have influenced the outcome of the election;

d) that if any fraudulent or illegal conduct was engaged in by any election officer(s) or administrator(s), that any such conduct would have influenced the outcome of the election.

5.Any and all irregularities in the election process, as alleged in ... Contestent's [sic] Original Petition, even if established, were of any [sic] insufficient number to have altered, modified or changed the true outcome of the election, and do not require or authorize the Court to declare the outcome of the election to be other than that which has been duly certified.

6.Any Finding of Fact herein stated may be incorporated herein as a Conclusion of Law.

CONCLUSIONS OF LAW

1.That the duly certified election results of the 1992 general election for District and County Attorney of Willacy County, Texas declaring Gustavo Ch. Garza the winner reflect the true outcome of the election.

2.That any relief sought by Juan Angel Guerra, the Contestant, is denied.

. . . . .

4.Any Conclusion of Law herein stated may be incorporated herein as a Finding of Fact.

Appellee argues that Guerra did not challenge any specific findings and conclusions, nor did he challenge the sufficiency of the evidence to support the findings.He further argues that the findings of fact and conclusions of law are binding on this Court and require an affirmance of the trial court's judgment.

Findings of fact which are not challenged by proper assignment of error on appeal are binding on the parties and the reviewing court.Alkas v. United Sav. Ass'n, 672 S.W.2d 852, 856(Tex.App.--Corpus Christi1984, writ ref'd n.r.e.);Ott v. Bell, 606 S.W.2d 955, 957(Tex.Civ.App.--Waco 1980, no writ);Katz v. Rodriguez, 563 S.W.2d 627, 630(Tex.Civ.App.--Corpus Christi1977, writ ref'd n.r.e.).In this case, Guerra has challenged findings four and five and conclusions one and two, by challenging the evidence to support these findings and conclusions.Guerra contends that the evidence showed that the votes needed to uphold the election should not have been counted and that irregularities occurred during the election process.

Findings of fact entered in a case tried to the bench are of the same force and dignity as a jury's verdict upon special questions.City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395(Tex.Civ.App.--Houston [14th Dist.]1977, writ ref'd n.r.e.).The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them ² by the same standards as are applied in reviewing the legal and factual sufficiency of the evidence supporting a jury's answer to a special question.Okon v. Levy, 612 S.W.2d 938, 941(Tex.Civ.App.--Dallas1981, writ ref'd n.r.e.).

Section 221.003 governs the scope of the inquiry in an election contest and provides in relevant part as follows:

(a) The tribunal hearing an election contest shall attempt to ascertain whether the outcome of the election contest, as shown by the final canvass, is not the true outcome because:

(1) illegal votes were counted; or

(2) an election officer or other person officially involved in the administration of the election:

(A) prevented eligible voters from voting;

(B) failed to count legal votes; or

(C) engaged in other fraud or illegal conduct or made a mistake.

(b) In this title, "illegal vote" means a vote that is not legally countable.

TEX.ELEC.CODE ANN. § 221.003(Vernon 1986).

An election contestant has the burden of proving that voting irregularities were present and that they materially affected the election's results.Goodman v. Wise, 620 S.W.2d 857, 859(Tex.Civ.App.--Corpus Christi1981, writ ref'd n.r.e.);Wright v. Bd. of Trustees of Tatum Indep. School Dist., 520 S.W.2d 787, 790(Tex.Civ.App.--Tyler1975, writ dism'd);Setliff v. Gorrell, 466 S.W.2d 74, 78(Tex.Civ.App.--Amarillo 1971, no writ).Election contestants must allege and prove particularized material irregularities in the conduct of the election and show either 1) that a different and correct result should have been reached by counting or not counting certain specified votes affected by the irregularities, or 2) that the irregularities rendered impossible a determination of the majority of the voters' true will.Goodman, 620 S.W.2d at 859;Wright, 520 S.W.2d at 793;Ware v. Crystal City Indep. School Dist., 489 S.W.2d 190, 191-92(Tex.Civ.App.--San Antonio1972, writ dism'd).The standard of review for an appeal from a judgment in an election contest is whether the record shows that the trial court abused its discretion.Green v. Reyes, 836 S.W.2d 203, 208(Tex.App.--Houston[14th Dist.]1992, no writ);Goodman, 620 S.W.2d at 859.

By his first through seventh points of error, Guerra complains that the trial court erred in counting ballots for appellee when voters did not write appellee's name on the ballot.By his eighth point of error, he complains that the trial court erred in counting ballots for appellee when the voters did not write appellee's name on the correct place on the ballot.

The facts show that a number of persons served as Willacy County election workers during the 1992 general election.As the events surrounding the election are reported through numerous witnesses, we have attempted, when possible, to generally summarize each witness's testimony.

The testimony showed that some voters marked their ballots for County Attorney by writing in "Gus,""Gues,""G.G.,""Garza,""Gue,""Gus Garza," or "Gus Garcia."Some ballots even had Mickey Mouse written on them.Some of these names were written on the line for a write-in candidate for the office of County Attorney and some were written elsewhere on the ballot.A number of these votes were counted for appellee.

Doris Graham, the precinct one election judge, testified that three persons with the surname "Garza" ran in the election, Robert Garza, ³LaQuita Garza, ⁴ and appellee.Only one person named Garza, "Gustavo 'Gus' Garza," ran for County Attorney as a write-in candidate.Gustavo Garza is called "Gus" and to her knowledge, no one else named "Gus" ran in the election.

Gloria Cavazos, a precinct two poll watcher, testified that three ballots had an "X" written in the square located in the write-in column for the County Attorney's race.The voters, however, did not write-in appellee's name on these three ballots.Cavazos testified that Sarah West, the caller, wrote appellee's name on one ballot and initialed it and that Ms. Wepfer, a tally clerk, did the same thing on the second ballot.Cavazos saw Alicia Dominguez, a tally clerk, write something on the third ballot, but she did not see what else was written on the ballot.

Morris Dodd, who served as the precinct nine election judge, testified that he knew appellee as "Gus" and "Garza."

Section 146.001 of the Texas Election Code states that "[e]xcept as otherwise provided...