Guerra v. Ramirez
| Decision Date | 30 January 1963 |
| Docket Number | No. 14116,14116 |
| Citation | 364 S.W.2d 720 |
| Parties | Virgilio H. GUERRA et al., Appellants, v. Mario E. RAMIREZ et al., Appellees. |
| Court | Texas Court of Appeals |
Hill, King & McKeithan, Mission, Arnulfo Guerra, Roma, for appellants.
Glenn E. Ramey, Rio Grande City, Stafford, Atlas, Spilman & Gurwitz, Morris Atlas, Gary Gurwitz, McAllen, for appellees.
This is the second appeal of an election contest growing out of a school trustee election held by Roma Independent School District of Starr County on April 1, 1961. Mario E. Ramirez, Cesar Salinas, Mrs. Maxine C. Guerra and R. T. Gonzalez, known as the new-party candidates, properly brought this suit to contest the certification by the election officials of the election of the four contestees, Virgilio H. Guerra, Lucio Gonzalez, Alonzo Alvarez and Erasmo Z. Perez, known as the old-party candidates. The first trial resulted in a judgment for all four contestants, but the judgment was reversed and the cause remanded by this Court. Grerra v. Ramirez, Tex. Civ.App., 351 S.W.2d 272. All contestants again prevailed upon the second trial.
The preliminary background is set forth in our first opinion, and it is seen that this contest involves the action of the election judge in rejecting over 200 absentee ballots. The parties stipulated as to the beginning total for each candidate, which was the total as certified by the election officials. They further stipulated that the trial court could open the ballot boxes and count all ballots which were not contested, except twenty-three ballots which did not contain signed stubs, and sixteen ballots which were rejected as 'mutilated' ballots. As to these latter ballots, the trial court would examine them to determine if the voter's intent could be ascertained. As to the other rejected ballots, the burden of proof was upon the contestants to show by clear and satisfactory proof that the voter whose ballot was allegedly improperly rejected was a legally qualified voter in every respect. Guerra v. Ramirez, supra. The contestants undertook to meet this burden by producing approximately 85 witnesses who testified concerning 118 persons whose ballots were allegedly improperly rejected.
The beginning court of the trial court after the stipulations, county of unchallenged ballots and rejection of ballots with stubs improperly signed, was as follows:
Contestees Contestants
----------------------------- --------------------------------
Virgilio H. Guerra 908 votes Mario E. Ramirez 849 votes
Lucio Gonzalez 891 " Cesar Salinas 849 "
Erasmo Z. Perez 869 " Mrs. Maxine C. Guerra 832 "
Alonzo Alvarez 864 " R.T. Gonzalez 826 "
The trial court, after hearing the evidence, counted all of the 'mutilated' ballots, restored three ballots improperly taken from each of contestees, and then counted as valid 107 of the rejected absentee ballots. The trial court arrived at a final result as follows:
Contestees Contestants
----------------------------- --------------------------------
Virgilio H. Guerra 914 votes Cesar Salinas 970 votes
Lucio Gonzalez 896 " Mario E. Ramirez 968 "
Erasmo Z. Perez 874 " Mrs. Maxine C. Guerra 952 "
Alonzo Alvarez 869 " R.T. Gonzalez 946 "
The candidates did not run for places and therefore the four candidates who received the highest number of votes would win.
Contestees have duly perfected their appeal from the judgment declaring all four contestants elected in accordance with the above totals. They first urge that the trial court erred in excluding evidence in support of their allegations that the entire absentee voting procedure was so irregular and fraudulent that all ballots should be thrown out. They assert that contestants, through members of their political faction who held public office, secured absentee votes through threats, intimidation and other unlawful means. The trial court refused to hear this evidence, apparently under the impression that the stipulations under which the case was tried took these issues out of the case. We must overrule this point because contestees have not properly perfected a bill of exception by showing the testimony sought to be admitted. In order to show reversible error, the bill of exception must show the testimony the contestees would have offered. Rules 434 and 372, T.R.C.P.; Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155; Wheat v. Citizens National Bank, Tex.Civ.App., 310 S.W.2d 735, writ ref., n. r. e.
Contestees also assert thal all absentee ballots should be discarded because the county clerk received ballots after the time permitted by law. Subd. 7 of Art. 5.05, Texas Election Code, controls this election and provides that the county clerk will not receive absentee ballots after 8 a. m. of the second day prior to such election. On the first trial, the county clerk testified that he received ballots up until 1 p. m. on election day, and delivered them to the presiding election judge as valid ballots. This testimony, even though attempted to be explained at the second trial, casts a cloud on all of the absentee votes and placed the burden on contestants to show that such ballots were received in the office of the county clerk on or before 8 a. m. on the second day before the election. Guerra v. Ramirez, supra. This burden was met by the trial court's examination of the postmark on the carrier envelope of each ballot and rejection of those which were not postmarked in time to arrive as required by law for valid ballots. Those which were not timely postmarked were not counted by the trial court and are not included in the 107 ballots in question.
Contestants did not introduce any evidence that any of the voters of the 107 ballots rejected by the election judge had paid a poll tax. There was evidence that 23 of those persons were over-age, or just twenty-one years of age, and that they were exempt from payment of poll tax. Contestees assert that as to the remaining 84 persons, the contestants failed in their burden of showing that the rejected ballots were cast by legally qualified voters in every respect. Contestants introduced in evidence a properly authenticated poll list prepared by the county tax collector under Art. 5.22 of the Texas Election Code, whereby the tax collector is required to prepare and furnish to the election board a certified list of the citizens in each precinct who have paid their poll tax. This was prima facie evidence that the persons named therein had paid their poll tax and, in the complete absence of evidence to the contrary, established this qualification of the persons named thereon. McCrary on Elections, Sec. 466; Vol. 29 C.J.S. Elections Secs. 47 and 276. See also, Major v. Loy, Tex.Civ.App., 155 S.W.2d 617, no writ history.
Contestants concede that the ballots of Trinidad S. Montes and Eduardo Garcia, Jr., were erroneously counted by the trial court, as neither of their names is on the poll list and the evidence does not show that they are exempt from payment of poll tax. They each cast a vote for each of contestants, and therefore we deduct two votes from each contestant's total.
Contestants produced a number of witnesses whose ballots had been rejected and who testified to their personal qualifications to vote. The qualifications of the remainder of the rejected voters were sought to be established by relatives and acquaintances of the voters. This type of evidence is proper if the witness is qualified to give the necessary information. Solis v. Martinez, supra. The voters who testified to their personal qualifications also were able to testify that they had voted absentee in this election, either at the courthouse or by mail. Contestees assert that as to 54 persons there is no evidence that the person about whom the testimony as to qualifications was given was the same person who voted. Contestants contend that this evidence is supplied by the evidence that a ballot was cast by a person of the same or similar name. Some of these ballots were cast at the office of the county clerk and the remainder by mail. In either event there is no testimony to show that the rejected ballot was cast by the same person whose qualifications were described. In solis v. Martinez, Tex.Civ.App., 264 S.W.2d 956, writ dismissed, this Court passed on a related question. There the election officers had permitted the challenged voter to cast a ballot and contestants introduced evidence to show that persons of the same or similar names lived outside the district. We there held that the burden of proof in an election contest rests upon the contestant. To destroy a vote which the election official permitted, it was there held that the non-resident with the same or similar name must be identified as the one who voted. The fact that the...
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...the contestant need not show the qualifications of the rejected voters at the election contest trial. Guerra v. Ramirez, 364 S.W.2d 720, 725 (Tex.Civ.App.--San Antonio 1963, writ dism'd) (mutilated ballot). Here the board rejected the three votes because its members thought the voters did n......
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