Reyes v. City of Laredo

• Decision Date: 28 August 1990
• Docket Number: No. 04-90-00411-CV,04-90-00411-CV
• Citation: 794 S.W.2d 846
• Parties: Rick REYES, Appellant, v. The CITY OF LAREDO, Bebe Zuniga, and Saul N. Ramirez, Jr., Appellees.
• Court: Texas Court of Appeals

Page 846

794 S.W.2d 846

Rick REYES, Appellant, v. The CITY OF LAREDO, Bebe Zuniga, and Saul N. Ramirez, Jr., Appellees.

No. 04-90-00411-CV.

Court of Appeals of Texas,

San Antonio.

Aug. 28, 1990.

Carlos H. Barrera, Law Offices of Carlos H. Barrera, Austin, for appellant.

Anthony C. McGettrick, City Atty., J.C. Trevino, III, Mann, Trevino, Hall & Gallego, Laredo, for appellee.

Before CADENA, C.J., and BUTTS and REEVES, JJ.

OPINION

REEVES, Justice.

This is an appeal involving an election contest to determine the second of two runoff positions in the race for Mayor of the City of Laredo. ¹ The case has previously been before this court, and we reversed the judgment and remanded the cause for a recount of all votes cast in the mayoral election, including 153 ballots in a secured ballot box. The trial court was instructed to discern, where possible, the intent of the voter on each of the 153 contested ballots or state why he was unable to do so. See Reyes v. Zuniga, 794 S.W.2d 842 (Tex.App.--San Antonio 1990 n.w.h.). On remand, the trial court was able to determine the voter intent for 152 of the ballots and duly credited each candidate with the numbers of respective votes to which he or she was entitled. On the remaining ballot, the trial court held that voter intent could not be determined because on that ballot votes were cast for two candidates, rather than one. The result of the recount in open court was that Bebe Zuniga received 2,700 votes and Rick Reyes received 2,684 votes, and Zuniga's name was ordered to be placed on the runoff ballot, with the runoff election set for August 11, 1990, and absentee balloting commencing on August 1, 1990.

Rick Reyes appeals this judgment in two points of error in which he urges that: (1) the trial court erred and abused its discretion in counting certain illegal mail-in ballots which were voted by a means of obvious fraud; and (2) the trial court erred in counting ballots on which adhesive dots had been placed, said ballots having been made duplicates, as a matter of law, and thereby rendered uncountable in a recount, also as a matter of law. The City of Laredo has requested, without opposition, that this appeal be accelerated, and we have previously granted that motion. ²

In his first point of error, appellant contends that over eighty (80) of the ballots counted by hand at the judicial recount were from among mail-in ballots, and that these ballots had "obvious erasures of votes for mayoral candidates with votes having been substituted, on all but four of these subject ballots, by votes for Bebe Zuniga." On this point, appellant concedes there was "no testimony that fraud by means of interception, erasure, and re-voting of ballots occured [sic]". Appellant asks this court to declare the "fraudulently changed ballots" void, subtract corresponding votes from the appropriate candidates, and place appellant in the runoff election with Saul N. Ramirez, Jr.

Appellant urges that section 221.011(a) of the Election Code is controlling in these circumstances. That section provides If the tribunal hearing an election contest can ascertain the candidate ... for which an illegal vote was cast, the tribunal shall subtract the vote from the official total for the candidate ..., as applicable.

TEX.ELEC.CODE ANN. § 221.011(a) (Vernon 1986). Appellant's primary argument seems to be that, of a certain lot of approximately eighty (80) ballots on which erasures had been made, all but four were cast for Bebe Zuniga, and that these "extremely lopsided numbers" must "clearly rank [sic] of fraud." Appellee responds in her brief that the eighty (80) or so ballots referred to were not the entire lot of mail-in ballots which contained erasures, but instead were only those ballots cast in favor of mayoral candidates other than appellant, to which ballots Reyes had objected. Appellee also urges that neither she nor Ramirez objected to the counting of ballots which were cast in favor of candidates other than themselves. Appellant correctly notes that this court is precluded under TEX.R.APP.P. 50 from considering certain affidavits which appellee has attached to her brief on appeal, which, if credited, would support appellee's position that the eighty (80) or so mail-in ballots were only part of a larger number of mail-in ballots containing erasures or other markings.

Appellant cites State ex rel. Lukovich v. Johnston, 235 S.W.2d 932 (Tex.Civ.App.--Galveston 1951), for the proposition that where in an election contest illegal votes can be segregated from legal votes cast, only the illegal votes should be thrown out, and the entire vote need not be impeached. He also observes that the Supreme Court of Texas, in quo warranto proceedings on behalf of Lukovich, found that a claimant to public office "must rely on the strength of his title to the office rather than on the weakness of [his opponent's] claim to it." State ex rel. Lukovich v. Johnston, 150 Tex. 174, 238 S.W.2d 957, 958 (1951). He contends, therefore, that in the absence of a clear and convincing record, it is incumbent on this court to review each of the eighty (80) or so mail-in ballots to determine if there is any basis for not counting any or all of them, based on his contention that intrinsic fraud occurred.

There is nothing in the record before us which impugns the integrity of the proceedings in the City of Laredo mayoral election. The declared results of an election will be upheld in all cases except where there is clear and convincing evidence of an erroneous result. As a general...