Thompson v. Willis

Decision Date04 August 1994
Docket NumberNo. 09-94-177,09-94-177
PartiesJohn P. THOMPSON, Appellant, v. Robert C. "Bob" WILLIS, Appellee. CV.
CourtTexas Court of Appeals

Kent M. Adams, Adams, Coffey & Duesler, Beaumont, for appellant.

Robert E. DeLong, Jr., Smither, Martin, Henderson, Morgan, DeLong & Blazek, Huntsville, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BURGESS, Justice.

This is an expedited appeal of an election contest. TEX.ELEC.CODE ANN. § 231.009 (Vernon 1986). Robert C. "Bob" Willis and John P. Thompson sought to be the nominee of the Democratic Party for the office of County Judge of Polk County in the March 1994 primary. After the original vote and a recount, Thompson was the winner by ninety votes. Willis filed suit in the District Court contesting the election. TEX.ELEC.CODE ANN. § 221.002 (Vernon 1986). Willis, in his First Amended Petition, alleged certain irregularities in the conduct of the election. First he noted the early votes and mail-in ballots were opened March 7, 1994, and should not have been opened until election day, March 8. 1 He also alleged all members of the Early Voting Board, 2 made markings on ballots "for the ostensible purpose of facilitating their processing by the electronic counting devices of Polk County" instead of making duplicate ballots and one member "took the opportunity to make marks on a large number of early votes or mail-in votes beside the name of Contestant, John P. Thompson, thereby making it appear that votes were cast for him when in fact the voter had cast no such vote for anyone in the County Judge race." 3 He further alleged that because of the marking and alteration of ballots the true results cannot be known or determined and the outcome announced was not the true outcome because fraud, illegal conduct or mistake caused an erroneous result. It was not alleged that Thompson had personally committed any fraudulent acts or illegal conduct.

A visiting judge heard the contest. TEX.ELEC. CODE ANN. § 231.004, § 231.005 (Vernon 1986). Five witnesses testified: the interim County Clerk, the members of the Early Voting Board and a Texas Ranger. It was uncontroverted the County Clerk had instructed members of the early voting board to utilize special graphite pencils to "overmark" ballots. Voters were instructed to mark their ballots with a graphite pencil by completely darkening a printed oval next to a candidate's name. When members of the early voting board saw ballots that were marked, i.e. indicated the choice of a candidate, but were not sufficiently marked 4, they were instructed to "fill in" the oval. Each member of the board was given approximately one-third of the early voting and mail-in ballots to review. Although the members were in close proximity, they independently reviewed their portion of the ballots and over-marked the ballots without consulting other members of the board. The number of over-marked ballots was a disputed fact issue. The interim county clerk testified she could not determine the number. One member of the board testified she marked one hundred to one hundred fifty ballots. Another member testified he marked eight to twelve ballots. The third member testified she marked approximately ten ballots. The Texas Ranger testified he reviewed the ballots and made a note of twelve ballots that looked unusual. He also testified there was no "fool-proof" way to segregate out the ballots that had been over-marked by the early voting board.

Thompson urges seven points of error. We shall address them as grouped by Thompson. Points one, two and four concern the evidentiary basis for the court's ruling. The first point alleges no evidence, the second point alleges insufficient evidence and the fourth point attacks the credibility of a witness. The third point alleges the trial court erred in ruling it was impossible to ascertain the true outcome of the election. The fifth point alleges the trial court erred in ruling the election is void and ordering a new election.

The trial judge's findings of fact, in pertinent part, state:

7. There were 2,091 early and absentee votes subjected to the review and marking procedure out of a total of 6,710 votes cast.... Several hundred original ballots appear to have been marked upon during the process. About eighty percent of the total ballots have a neat darkened oval in the space to mark the voter's choice for County Judge and it is not possible to now tell when nor by whom this group of ballots were actually marked.

8. The particular ballots marked upon by the Early Voting Ballot Board cannot be segregated or identified at this time. More than 120 ballots had markings added or small darkened circles placed beside the candidate's name (either Thompson or Willis) by the members of the Early Voting Ballot Board after original markings had been placed upon them by the voters....

The trial judge's conclusions of law, in pertinent part, state:

2. An "illegal vote" is a vote that is not legally countable. Tex.Elec.Code Ann. § 221.003 (Vernon 1986).

3. The unauthorized assistance provided to more than 120 ballots in the County Judge's race voids each of those ballots....

5. Because of the number of unascertainable illegal votes in this matter, the true outcome of the election cannot be determined at this time.

The trial judge, in the judgment, stated: "... this Court finds that clear and convincing evidence established that unsworn election officials serving on the Early Voting Ballot Board mistakenly engaged in conduct [footnote omitted] which makes it impossible to ascertain the true outcome of this election. These members of the Early Voting Ballot Board marked on the ballots previously marked by voters contrary to Section 127.126 of the Texas Election Code, thereby, in effect, rendering assistance to voters in violation of Chapter 64, Subchapter B, of the Texas Election Code...."

Although Findings of Fact in a judge-tried case are not conclusive when a complete statement of facts appears in the record, great deference must be given to the judge's determination of the witnesses' credibility and the weight to be given their testimony. See Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] ), writ ref'd n.r.e per curium, 699 S.W.2d 199 (Tex.1985). It is axiomatic that, in a non-jury case, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The court has the power to believe or disbelieve all or part of a witness' testimony. Medrano v. Gleinser, 769 S.W.2d 687, 689 (Tex.App.--Corpus Christi 1989, no writ). The trial judge is the judge of the credibility of the witnesses and of the weight to be given their testimony and it is within his province to reconcile any inconsistencies. Day v Crutchfield, 400 S.W.2d 377, 380 (Tex.Civ.App.--Texarkana 1965, writ dism'd).

The rule is no different in election contests. Wilburn v. Galloway, 179 S.W.2d 540 (Tex.Civ.App.--Beaumont, 1944, no writ), was a school consolidation case. The official canvass showed 42 in favor, 31 against. After the contestants had produced "at least more than 31 witnesses" to testify they had voted against consolidation, the court ordered the ballot box opened. The appellate opinion is unclear as to the number of ballots found to be irregular. However, the court did say: "There was sufficient evidence in this case which, if believed by the court to be true, would have justified the court in finding that, at least, some of the ballots found with the returns of the election were not the ballots actually voted by the voters. We certainly cannot say that under the evidence in this case that the court was unauthorized to reach the conclusion that it was impossible to ascertain the true results of the election...." Id. at 542.

That ballots were over-marked is certain. The question was the number of over-marked ballots. The trial court's finding of more than 120 ballots having had markings added is certainly within the evidence. Points one, two and four are overruled.

Points of error three and five bring into issue conclusions of law three and five. TEX.ELEC.CODE ANN. § 64.031 (Vernon 1986), defines eligibility for assistance; it states: "A voter is eligible to receive assistance in marking the ballot, as provided by this subchapter, if the voter cannot prepare the ballot because of: (1) a physical disability that renders the voter unable to write or see, or (2) an inability to read the language in which the ballot is written." TEX.ELEC.CODE ANN. § 64.037 (Vernon 1986) states: "If assistance is provided to a voter who is not eligible for assistance, the voter's ballot may not be counted."

Three cases speak to this issue. State ex rel. Lukovich v....

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    • U.S. District Court — Southern District of Texas
    • October 9, 2014
    ...from the election judges if they have a problem with the ballot.”).468 Eagleton, Pls.' Ex. 1095, p. 10.469 See, e.g., Thompson v. Willis, 881 S.W.2d 221, 222 (Tex.App.-Beaumont 1994, no writ) (invalidating a local election where the Early Voting Ballot Board improperly marked 120 early/abse......
  • Barrera v. Garcia
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    ... ... TEX. R. APP. P. 47.1.        2. Barrera cites Thompson v. Willis, 881 S.W.2d 221 (Tex. App.—Beaumont 1994, no writ), as an example of a case holding that the improper duplication of ballots voids the ... ...
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    ... ... If that is the case, then the true outcome of the election can not be ascertained and the election should be declared void. Thompson v. Willis, 881 S.W.2d 221, 225 (Tex.App.-Beaumont 1994, no writ) ...         The legislature may very well change the definition of "residence" to accommodate persons such as members of the Escapees,6 but it is not for this court or the trial court to do. Therefore, I respectfully dissent ... ...

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