Minerva M. Peña v. Marisa F. Leal ( 2023 )

NUMBER 13-22-00204-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MINERVA M. PEÑA, Appellant,
v.
MARISA F. LEAL, Appellee.
On appeal from the 107th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Tijerina, and Peña
Memorandum Opinion by Justice Tijerina
Appellant Minerva M. Peña appeals the trial court’s judgment in favor of appellee
Marisa F. Leal declaring the 2020 general election for the Board of Trustees, Place 6, of
the Brownsville Independent School District (“BISD”) void and ordering a new election.
By two issues that we analyze as one, Peña contends that the trial court used the wrong
formula in determining that twenty-four illegally cast votes “were equal to or greater than
the number of votes necessary to materially affect the outcome of the election.” We affirm.
I. PERTINENT FACTS
On November 3, 2020, a general election was held to select the Board of Trustee
for Place 6 of BISD. Three parties ran for the position, including Peña and Leal.
Eventually, Peña was declared the winner of the election. She won by eight votes. Leal
sued pursuant to Title 14, Chapter 232 of the Texas Election Code contesting the result
of the election. A bench trial was held. The trial court ruled in favor of Leal, declared the
election void, and ordered a new election. In its order, the trial court stated, “The Court
further finds that the twenty-four (24) illegal votes cast in this election is equal to or greater
than the number of votes necessary to change the outcome of the election.”
The trial court entered findings of fact and conclusions of law. As pertinent here,
the trial court found that several of the votes were illegal as follows: (1) sixteen mail-in
voters used the same single address that was clearly not the residence of all sixteen mail-
in voters; (2) three mail-in ballots had improper signatures on the envelope of the mail-in
ballots; and (3) five voters received unlawful assistance when they voted.
Peña filed a motion for new trial claiming that “the minimum number of votes
needed to change the outcome of the election was over 100 votes.” Peña argued that the
trial court’s “error comes from [its] failure to analyze the distribution of the votes that are
deducted from each of the three (3) party’s vote count.” The trial court denied Peña’s
motion for new trial. This appeal followed.
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II. STANDARD OF REVIEW AND APPLICABLE LAW
We review an election contest for abuse of discretion. McCurry v. Lewis, 259
S.W.3d 369, 372 (Tex. App.—Amarillo 2008, no pet.). “A trial court abuses its discretion
when it acts ‘without reference to any guiding rules and principles.’” Id. (citing and quoting
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).
Accordingly, if the trial court acted within its discretion, we may not reverse the judgment
simply because we might have reached a different result. Id.Section 221.003 sets out the scope of inquiry in an election dispute as follows:
(a) The tribunal hearing an election contest shall attempt to ascertain
whether the outcome of the contested election, 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.
(c) This section does not limit a provision of this code or another statute
expanding the scope of inquiry in an election contest.
TEX. ELEC. CODE ANN. § 221.003.
An election contestant has the burden of proving by clear and convincing evidence
that voting irregularities materially affected the election results. Tiller v. Martinez, 974
S.W.2d 769, 772 (Tex. App.—San Antonio 1998, pet. dism’d w.o.j.); Guerra v. Garza, 865
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S.W.2d 573, 576 (Tex. App.—Corpus Christi–Edinburg 1993, writ dism’d w.o.j.). The
contestant must either show that (1) “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.” Guerra, 865 S.W.2d at 576.
Once a contestant meets the burden of proof and the trial court can ascertain the
true outcome of the election, it shall declare the outcome. Tiller, 974 S.W.2d at 772.
“However, if the trial court cannot ascertain the true outcome of the election, it must
declare the election void.” Id. (citing TEX. ELEC. CODE ANN. § 221.012).
III. PEÑA’S ARGUMENT
Peña does not dispute the trial court’s finding that there were twenty-four illegal
votes cast in the election. Instead, Peña “disputes that 24 illegally cast votes is sufficient
evidence to conclude that said votes materially affected the outcome of the election.”
Peña takes issue with how the trial court calculated the number of illegal votes because
according to her, it did not “analyze the distribution of the votes that are deducted from
each of the three (3) party’s vote count.”
In her brief, Peña sets out the formula she claims the trial court should have
followed in analyzing the effect of the nineteen mail-in ballots voided by the trial court.
Peña argues that because the trial court did not apply the proposed formula, the trial
court’s calculation is fundamentally wrong. Under Peña’s proposed formula, “the votes
thrown out by the [trial court] would equal 0.095 (9.5%) of a vote (not even enough to
round up to 1 vote).” As to the five assisted votes that the trial court voided, Peña argues
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that using her purposed formula, the five votes “would equal 0.025 (2.5%) of a vote (not
even enough to round up to 1 vote).” Therefore, according to Peña, “the 5 ‘illegal
assistance’ votes thrown out also failed to materially affect the outcome of the election.”
Peña’s theory relies on the assumption that a percentage of these individual votes should
have been attributable to each of the three candidates.
IV. DISCUSSION
In some cases, it may be possible for the trial court to “determine (1) that illegal
votes were cast, (2) the number of illegal votes cast, and (3) the candidate for whom those
votes were cast.” Gonzalez v. Villarreal, 251 S.W.3d 763, 782 (Tex. App.—Corpus
Christi–Edinburg 2008, pet. dism’d). Additionally, the trial court may bring in the person
who casts an illegal vote and “may require” that person to disclose the name of the
candidate for whom he voted. Id. In such cases, the trial court is directed to “‘subtract the
vote from the official total for the candidate or side of the measure, as applicable.’” Id.However, a trial court is not required to determine “for whom an illegal vote was
cast,” and instead, “the code provides that ‘if the tribunal finds that illegal votes were cast
but cannot ascertain how the voters voted, the tribunal shall consider those votes in
making its judgment.’” Id.Although [§] 221.011 does not dictate exactly how those illegal votes should
be considered, § 221.009 provides the answer: “[i]f the number of illegal
votes is equal to or greater than the number of votes necessary to change
the outcome of an election, the tribunal may declare the election void
without attempting to determine how individual voters voted.”
Id. Thus, when the trial court “determines that illegal votes were cast and that the number
of illegal votes equals or is greater than the margin of victory, the trial court can then
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declare the election void without ever inquiring as to the candidate for whom those illegal
votes were cast.” Id.; see also Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex. App.—
San Antonio 1992, writ dism’d w.o.j.) (recognizing that the election code permits the trial
court to determine whether the number of illegal votes exceeds the margin without
attempting to determine which candidate received any of the illegal ballots that were
cast”); Kelley v. Scott, 733 S.W.2d 312, 314 (Tex. App.—El Paso 1987, writ dism’d)
(setting out that the election code “provides that if the number of illegal votes is equal to
or greater than the number of votes necessary to change the outcome of an election, the
tribunal may declare the election void without attempting to determine how the individual
voters involved voted”).
The margin of victory in this case was eight votes, and the irregularities in the
election process accounted for twenty-four, which exceeds the margin of victory.
Accordingly, to find that the outcome of the election was materially affected, it was not
necessary for the trial court to determine how the individual voters voted, and the trial
court was not required to follow Peña’s proposed formula, which depends on a finding
that a percentage of the twenty-four illegal votes went to a certain candidate. See
Gonzalez, 251 S.W.3d at 782; Alvarez, 844 S.W.2d at 242; Kelley, 733 S.W.2d at 314(finding that because the winner of the election won by one vote, that one vote could have
changed the outcome of the election regardless of the candidate for whom the illegal voter
casts her vote). Therefore, the trial court did not abuse its discretion when it declared the
election void. See Gonzalez, 251 S.W.3d at 782; Alvarez, 844 S.W.2d at 242; Kelley, 733
S.W.2d at 314. We overrule Peña’s sole issue.
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V. CONCLUSION
We affirm the judgment.
JAIME TIJERINA
Justice
Delivered and filed on the
27th day of April, 2023.
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