SR v. Lopez

• Decision Date: 14 May 2014
• Docket Number: NUMBER 13-14-00581-CV
• Parties: GUADALUPE "LUPE" RIVERA SR., Appellant, v. LETICIA "LETTY" LOPEZ, Appellee.
• Court: Court of Appeals of Texas

GUADALUPE "LUPE" RIVERA SR., Appellant, v. LETICIA "LETTY" LOPEZ, Appellee.

NUMBER 13-14-00581-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

May 14, 2014

On appeal from the 370th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Longoria

Memorandum Opinion by Justice Perkes

This case is an election contest concerning the District 5 seat on the City Commission of Weslaco. Appellant/cross-appellee Guadalupe Rivera Sr., and appellee/cross-appellant Leticia Lopez appeal the trial court's order voiding the election and ordering a new election. Rivera brings ten issues and Lopez brings four cross-issues. We affirm.

I. BACKGROUND

The City of Weslaco, Hidalgo County, Texas held a general election for the District 5 seat on the Weslaco City Commission. The candidates in the contested election were the incumbent, Guadalupe Rivera Sr. (Rivera), and the challenger, Leticia "Letty" Lopez (Lopez). The margin was extremely close, with the final canvass of the election showing that Rivera received 487 votes and Lopez received 471 votes.

Lopez filed an election contest against Rivera, alleging that illegal votes were counted. After a bench trial, the trial court found in favor of Lopez and concluded that the results of the election as shown by the final canvass was not the true outcome because illegal votes were counted. In support of its judgment, the trial court issued the following findings of fact and conclusions of law,¹ among others:

Voters Who Cast Their Votes by Mail

A2. The Court finds by clear and convincing evidence that the following twelve voters cast their mail in ballots for Contestee Lupe Rivera and the person who delivered the mail-in ballot did not provide his/her signature, nor print his/her name and address on the carrier envelope: Marlen or Marlene Martinez, Andres Martinez, Leonor Hinojosa, Leocadia Ledesma, David Lopez, Emma Oviedo, Noe Saldana, Ruth Saldana, Antonia Zepeda, Eulalio Ibanez, Tiburcio Mata and Oralia Saldana.

A3. The Court finds by clear and convincing evidence that Maria Berrones cast her vote by mail-in ballot, did not testify for whom she voted, but did testify that she gave her ballot to Contestee Lupe Rivera, who filled out her ballot for her and mailed her ballot without signing the carrier envelope and without printing his name and address on the carrier envelope. The Court will find by clear and convincing evidence that Maria Berrones cast her vote for Lupe Rivera.

A4. The Court finds by clear and convincing evidence that the following seven voters cast their vote by mail-in ballots and the person who delivered the mail-in ballots did not provide his/her signature, did not print his/her name and address on the carrier envelope: Arnulfo Gonzalez, Esteban Martinez Sr., Jose Mendez, Maria Garza Mendez, Francisca Pina, Liboria Pina, and Pedro Zepeda. The Court could not determine by clear and convincing evidence for whom the seven voters of these mail-in ballots cast their votes.

B1. Section 86.051(b) of the Texas Elections Code provides that "[a] person other than the voter who deposits the carrier envelope in the mail or with a common or contract carrier must provide the person's signature, printed name, and residence address on the reverse side of the envelope." Violations of [s]ection 86.051(b) of the Texas Elections Code renders a ballot uncountable under Section 86.006(h) of the Texas Elections Code.

Nonresident Votes

D4. Jose Roberto Sandoval is not a resident of District 5[,] Weslaco, Hidalgo County, Texas and therefore his vote is disallowed and since this Court has found that he cast his vote for Contestee Lupe Rivera, his vote will be deducted from Contestee Lupe Rivera's total vote.

. . . .

D6. Felipa Cuellar, Cassandra Renea Alaniz, and Irma Rivera are not residents of District 5, Weslaco, Hidalgo County, Texas and therefore their votes are disallowed.

Ballots Rejected by the Hidalgo County Ballot Board

E1. Seven mail-in ballots were rejected by the Hidalgo County Ballot Board for the reason that the signatures on the application for mail ballot did not match the signature on the carrier envelope.

E2. The voters of the seven rejected mail-in ballots testified in Court that each voter signed their respective application for a mail in ballot and the carrier envelope and that each voted for Contestee Lupe Rivera, seven votes.

E3. The Court does not find by clear and convincing evidence that the Hidalgo County Ballot Board mistakenly rejected the seven ballots.

E4. Therefore the seven mail-in ballots that were rejected by the Hidalgo County Ballot Board for the reason that the signatures on the application for mail ballot did not match the signature on the carrier envelope will not be counted.

Undervotes

F1. The Court finds by clear and convincing evidence that four voters did not cast a ballot for City Commissioner District 5, Weslaco, Hidalgo County, Texas.

F2. At least eleven undetermined votes were cast in City Commissioner District 5, Weslaco, Hidalgo County, Texas.

F3. Therefore at least seven undetermined votes remain.

. . . .

The trial court found a total of thirty illegally cast votes, with sixteen illegal votes cast for Rivera, three illegal votes cast for Lopez, and eleven illegal votes that could not be attributed to either candidate. The court then deducted the disallowed votes for each candidate and adjusted the final vote count to 471 votes for Rivera and 468 votes for Lopez. Because "illegal votes were counted in a number in excess of the margin of victory," the trial court concluded that it was unable to declare a winner in the election. The court entered a final judgment voiding the contested election and ordering the City of Weslaco to hold a new election for the District 5 seat on the Weslaco City Commission. See TEX. ELEC. CODE ANN. § 221.012 (West, Westlaw through 2013 3d C.S.). The trial court entered comprehensive findings of fact and conclusions of law detailing which votes it had excluded from each of the contested categories. This appeal and cross-appeal ensued.

II. ELECTION CONTEST LAW AND STANDARD OF REVIEW

An election contest is a special statutory proceeding that provides a remedy for elections tainted by fraud, illegality, or other irregularity. Blum v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999); see TEX. ELEC. CODE ANN. §§ 221.003-221.014. Under section 221.003 of the Texas Election Code:

(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.

TEX. ELEC. CODE ANN. § 221.003.

An election contestant has the burden of proving by clear and convincing evidence that voting irregularities were present and that they materially affected the election's results. Guerra v. Garza, 865 S.W.2d 573, 576 (Tex. App.—Corpus Christi 1993, writ dism'd w.o.j.); Wright v. Bd. of Trustees of Tatum Indep. School Dist., 520 S.W.2d 787, 790 (Tex. Civ. App.—Tyler 1975, 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 renderedimpossible a determination of the majority of the voters' true will.² Guerra, 865 S.W.2d at 576; 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 Antonio 1972, writ dism'd).

We review the trial court's judgment in an election contest for abuse of discretion. McCurry v. Lewis, 259 S.W.3d 369, 372 (Tex. App.—Amarillo 2008, no pet.). An abuse of discretion occurs when the trial court acts "without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); McCurry, 259 S.W.3d at 372. If the trial court acted within its discretion, we cannot reverse the judgment simply because we might have reached a different result. See Downer, 701 S.W.2d at 242.

Rivera challenges the trial court's order declaring the election void as an abuse of discretion. Additionally, Rivera raises several evidentiary issues as well as statutory construction and constitutional issues. We apply the appropriate standard of review to each corresponding issue; however, we determine the trial court's ultimate decision to declare the election void under an abuse of discretion standard of review.

III. MAIL-IN BALLOT DISQUALIFICATION

By his sixth issue, which we address first, Rivera complains that the trial court erred in disqualifying mail-in ballots allegedly mailed in violation of section 86.0051(b) of the Texas Elections Code. See TEX. ELEC. CODE ANN. § 86.0051(b) (West, Westlaw through2013 3d C.S.). Specifically Rivera argues: 1) the Legislature did not intend to require ballot exclusion for violations of section 86.0051; and 2) a reading of section 86.006(f) "could only lead this Court to conclude that mere failure by a person, who is dropping off a carrier envelope on behalf of a voter, to sign his name and provide an address, without more, is not enough to fall within the prohibition of Section 86.006(f) and the ballot exclusion provision in Section 86.006(h)."³

A. Standard of Review

We review a trial court's conclusions of law de novo. BMC Software Belg., N.V. v. Marchland, 83 S.W.3d 789, 794 (Tex. 2002); Reese v. Duncan, 80 S.W.3d 650, 655 (Tex. App.—Dallas 2002, no pet.) When reviewing the trial court's legal conclusions, we evaluate them independently, determining...