Lupe Rivera v. Leticia "Letty" Lopez ( 2014 )

ACCEPTED
13-14-00581-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/29/2014 10:41:14 PM
DORIAN RAMIREZ
CLERK
NO. 13-14-00581-CV
FILED IN
13th COURT OF APPEALS
IN C A
CORPUS CHRISTI/EDINBURG, TEXAS
THE OURT OF PPEALS
12/29/2014 10:41:14 PM
FOR THE T J
HIRTEENTH UDICIAL DORIAN D
ISTRICTE. RAMIREZ
C C
ORPUS HRISTI EXAS,T Clerk
GUADALUPE “LUPE” RIVERA,
APPELLANT/CROSS-APPELLEE
V.
LETICIA “LETTY” LOPEZ,
APPELLEE/CROSS-APPELLANT
ON APPEAL FROM THE 370TH JUDICIAL DISTRICT COURT
OF HIDALGO COUNTY, TEXAS; NO. C-6914-13-G
BRIEF OF CROSS-APPELLANT LETICIA LOPEZ
Jerad Najvar
NAJVAR LAW FIRM
Texas Bar No. 24068079
4151 Southwest Freeway, Suite 625
Houston, Texas 77027
Phone: (281) 404-4696
Fax: (281) 582-4138
Email: jerad@najvarlaw.com
Counsel for Appellee/Cross-Appellant
December 29, 2014
IDENTITY OF PARTIES AND COUNSEL
Appellant/Cross-Appellee:
Guadalupe “Lupe” Rivera, Sr.
Counsel for Appellant/Cross-Appellee:
Gilberto Hinojosa
GILBERTO HINOJOSA & ASSOCIATES, PC
622 E. St. Charles Street
Brownsville, Texas 78520
Appellee/Cross-Appellant:
Leticia “Letty” Lopez
Counsel for Appellee/Cross-Appellant:
Jerad Najvar
NAJVAR LAW FIRM
4151 Southwest Freeway, Suite 625
Houston, Texas 77027
i.
TABLE OF CONTENTS
Identity of Parties and Counsel ...................................................................................i
Index of Authorities ..................................................................................................iv
Statement of the Case.............................................................................................. vii
Issues Presented for Review .................................................................................. viii
Statement of Facts ...................................................................................................... 1
Summary of the Argument....................................................................................... 17
Argument.................................................................................................................. 19
I. Standard of Review of Election Contests ........................................................ 19
A. Scope of Election Contest Inquiry............................................................ 19
B. Standard of Review on Appeal ................................................................. 21
II. The Trial Court Abused Its Discretion by Failing to Invalidate Additional
Votes, Because Lopez Proved as a Matter of Law That Additional Votes
Were Cast by Persons Not Residing in District 5............................................ 22
A. Legal sufficiency review of issues upon which Lopez had the burden of
proof at trial .............................................................................................. 22
B. Residency under the Election Code.......................................................... 23
C. Lopez proved as a matter of law that Lupe Jr. and Illiana Guerrero were
not eligible to vote because they do not reside in District 5, and that they
cast votes for Rivera in the election ......................................................... 27
1. Undisputed facts establish that Lupe Rivera, Jr. and Illiana Guerrero
have bodily presence in a residence outside District 5 ..................... 28
2. Undisputed facts establish that Lupe Jr. and Illiana Guerrero have a
present intention to reside at 700 E. Eighth, not 716 N. Padre ........ 32
3. Lupe Jr. and Illiana Guerrero cast their votes for Rivera ................. 38
D. Lopez proved as a matter of law that an additional nine ballots were
illegally cast by voters who resided outside District 5 ............................. 40
ii.
1. 316 West Los Torritos ...................................................................... 40
2. 1518 East Sixth ................................................................................. 45
E. Lopez proved as a matter of law that Esteban Martinez cast an illegal
ballot for Rivera ........................................................................................ 48
III. The Trial Court Abused its Discretion by Deducting Certain Illegal Votes
From Lopez’s Final Vote Count Because There is Insufficient Evidence to
Support That Those Votes Were Cast for Lopez............................................. 50
A. Factual sufficiency review of issues upon which Lopez did not have the
burden of proof at trial .............................................................................. 50
B. The confidential nature of the electoral process requires heightened
review of suspicious and biased voter testimony ..................................... 51
C. The record shows that basing any finding on the testimony of Tomasa
Cavazos is clear error ............................................................................... 52
D. The record shows that basing any finding on the testimony of Jose Jr. and
Jose Sr. is clear error ................................................................................ 55
IV. The Trial Court Abused its Discretion by Subtracting Four Undervotes,
Rather Than One, From the Total of Illegal but Undetermined Votes Cast in
the Election ...................................................................................................... 56
Prayer ....................................................................................................................... 59
Certificate of Compliance ........................................................................................ 60
Certificate of Service ............................................................................................... 61
APPENDIX:
Final Judgment of the Trial Court............................................................................. A
Findings of Fact and Conclusions of Law of the Trial Court ................................... B
Tex. Elec. Code § 1.015 ............................................................................................ C
Tex. Elec. Code § 11.001 .......................................................................................... D
iii.
INDEX OF AUTHORITIES
Cases
Alvarez v. Espinoza,
844 S.W.2d 238 (Tex. App.–San Antonio 1992, writ
dism’d w.o.j.) ................................................................................. 23-25,31,32
Anderson Mill Mun. Util. Dist. v. Robbins,
No. 03-04-00369-CV, 2005 WL 2170355 (Tex. App.–Austin Sept. 8, 2005,
no pet.) ........................................................................................................... 22
Birnberg v. Sparks,
410 S.W.2d 789 (Tex. App.–Corpus Christi 1966, writ ref’d n.r.e) ............. 34
Burnside Air Conditioning and Heating, Inc. v. T.S. Young Corp.,
113 S.W.3d 889 (Tex. App.–Dallas 2003, no pet.) ....................................... 28
Croucher v. Croucher,
660 S.W.2d 55 (Tex. 1983) ........................................................................... 50
Flack v. First Nat’l Bank of Dalhart,
226 S.W.2d 628 (Tex. 1950) ......................................................................... 49
Gonzalez v. Villarreal,
251 S.W.3d 763 (Tex. App.–Corpus Christi 2008, pet. dism’d) ............passim
Graham v. Villarreal,
242 S.W.2d 258 (Tex. App.–San Antonio 1951, no writ)............................. 39
Green v. Reyes,
836 S.W.2d 203 (Tex. App.–Houston [14th Dist.] 1992, no writ) ................ 21
Guerra v. Garza,
865 S.W.2d 573 (Tex. App.–Corpus Christi 1993, writ dism’d w.o.j.) ........ 21
In re C.H.,
89 S.W.3d 17 (Tex. 2002) ............................................................................. 51
iv.
In re Graham,
251 S.W.3d 844 (Tex. App.–Austin 2008, no pet.) ..................................24,33
In re J.F.C.,
96 S.W.3d 256 (Tex. 2002) ........................................................................... 51
In re King’s Estate,
244 S.W.2d 660 (Tex. 1951) ......................................................................... 51
Kiehne v. Jones,
247 S.W.3d 259 (Tex. App.–El Paso 2007, pet. denied)............................... 32
McDuffee v. Miller,
327 S.W.3d 808 (Tex. App.–Beaumont 2010, no pet.) .......................27,41,47
Medrano v. Gleisner,
769 S.W.2d 687 (Tex. App.–Corpus Christi 1989, no writ) ......................... 51
Mills v. Bartlett,
377 S.W.2d 636 (Tex. 1964) ...............................................................24,25,32
Office of the Atty. Gen. of Tex. v. Burton,
369 S.W.3d 173 (Tex. 2012) ......................................................................... 22
Owens Corning v. Carter,
997 S.W.2d 650 (Tex. 1999) ......................................................................... 24
Powell v. Stover,
165 S.W.3d 322 (Tex. 2005) ......................................................................... 29
Reese v. Ducan,
80 S.W.3d 650 (Tex. App.–Dallas 2002, pet. denied) ........................19,21,50
Slusher v. Streater,
896 S.W.2d 239 (Tex. App.–Houston [1st Dist.] 1995, no writ) .................. 23
Snyder v. Pitts,
241 S.W.2d 136 (Tex. 1951) ......................................................................... 28
v.
State v. Fischer,
769 S.W.2d 619 (Tex. App.–Corpus Christi 1989, no writ) ...............25,26,29
Tovar v. Bd. of Trs. Of Somerset Indep. Sch. Dist.,
994 S.W.2d 756 (Tex. App.–Corpus Christi 1999, pet. denied) ....32,33,37,47
Vlandis v. Klein,
414 U.S. 441 (1973)....................................................................................... 35
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ......................................................................... 28
Woods v. Legg,
363 S.W.3d 710 (Tex. App.–Houston [1st Dist.] 2011, no pet.) .........27,35,37
Statutes and Rules
TEX. ELEC. CODE ANN. § 1.015 (West Suppl. 2013) ...........................................23,24
TEX. ELEC. CODE ANN. § 11.001 (West Suppl. 2013) .............................................. 23
TEX. ELEC. CODE ANN. § 221.003 (West Suppl. 2013) ........................................... 19,
TEX. ELEC. CODE ANN. § 221.009 (West Suppl. 2013) ................................................
TEX. ELEC. CODE ANN. § 221.011 (West Suppl. 2013) ............................................ 20
TEX. ELEC. CODE ANN. § 221.012 (West Suppl. 2013) ............................................ 20
TEX. R. CIV. P. 299 .......................................................................................................
vi.
STATEMENT OF THE CASE
This an election contest arising out of the November 5, 2013 election for the
District 5 seat on the City Commission of Weslaco, Hidalgo County, Texas (C.R.
at 46-47). The case was tried to the bench from March 24-27, 2014 (C.R. at 240).
The trial court signed a final judgment on July 25, 2014, voiding the contested
election and ordering the City of Weslaco to conduct a new election (C.R. at 240-
41). Rivera’s Motion for New Trial was denied on September 25, 2014 (C.R. at
250). The trial court issued Findings of Fact and Conclusions of Law on October
27, 2014 (Suppl. at 22-32). Both sides have appealed the judgment, each asking
this Court to reverse the trial court’s decision and declare the winner of the
contested election (C.R. at 251, 264).
vii.
ISSUES PRESENTED FOR REVIEW
1. The trial court erred by failing to deduct the votes of Illiana Guerrero,
Guadalupe Rivera, Jr., and Esteban Martinez from Guadalupe Rivera’s final
vote count, because Lopez proved as a matter of law that Illiana Guerrero and
Lupe Rivera, Jr. reside outside District 5 and cast ballots for Rivera, and proved
as a matter of law that Esteban Martinez voted for Rivera in the District 5 race.
2. The trial court erred by deducting the votes of Tomasa Cavazos, Jose Luis
Martinez, Sr., and Jose Luis Martinez, Jr. from Leticia Lopez’s final vote count,
because there is insufficient evidence to support the finding that they voted for
Leticia Lopez.
3. The trial court erred by failing to conclude that the votes of Delma Cadena,
Alexia Dinah Chavez, Alyssa Domitria Chavez, Delma Ann Chavez, Diana
Pena, Valerie Jadine Pena, Illiana Yvonne Rivera, Raul Rivera, Sr., and Raul
Rivera, Jr. were illegal, because the evidence shows as a matter of law they do
not reside in District 5.
4. The trial court erred by deducting four undervotes, rather than one, from the
total number of illegal but undetermined votes cast in the election, because
Lopez proved as a matter of law that only one undervote could possibly have
been among the undetermined illegal votes.
viii.
STATEMENT OF FACTS
On November 5, 2013, the City of Weslaco, Hidalgo County, Texas held a
general election for, inter alia, the District 5 seat on the Weslaco City Commission
(hereinafter “the contested election”) (VI R.R. at 5). The candidates in the
contested election were the incumbent, Appellant/Cross-Appellee Guadalupe
“Lupe” Rivera, Sr. (hereinafter “Rivera”), and the challenger, Appellee/Cross-
Appellant Leticia “Letty” Lopez (hereinafter “Lopez”) (VI R.R. at 33-34). The
final canvass of the contested election showed that Rivera received 487 votes and
Lopez received 471 votes, creating a sixteen (16) vote margin of victory for Rivera
(VI R.R. at 6).
On November 19, 2013, Lopez filed an election contest against Rivera,
alleging the result of the contested election as shown by the final canvass was not
the true outcome because illegal votes were counted (C.R. at 23-28). Specifically,
Lopez alleged that numerous ballots were cast by voters who did not reside within
District 5 (C.R. at 46-48) and that numerous ballots cast by mail failed to comply
with the mandatory requirements of the Texas Election Code (C.R. at 49-52).
Lopez also originally alleged that sixteen (16) mail ballots were improperly
rejected by the Hidalgo County Early Voting Ballot Board (C.R. at 48-49), but she
abandoned that claim at trial (IV R.R. at 243).
1
I. Non-resident Voters
Lopez contested twenty-three (23) ballots cast in the election by voters she
alleged did not reside within District 5. Each of these voters was registered to vote
using one of five addresses, all of which have a direct familial or social connection
to Rivera. In some cases, multiple voter registration applications were completed
for the same address, on the same day, in the same handwriting. To assist the
Court’s understanding of the facts, the contested (non-resident) voters from the
five homes at issue are diagramed on the following page. The votes at each
address are discussed separately below.
2
Votes Challenged Based on Residency of Voter
*Votes already declared illegal by the trial court are struck through
716 N. Padre
Rivera’s Home
Jose Heriberto Sandoval (Lupe Rivera Jr.’s friend)
Lupe Rivera, Jr. (Rivera’s son and campaign manager)
Laura Rivera (Rivera’s daughter)
717 N. Padre
316 W. Los Torritos
Home of Rivera’s close friend
Home of Rivera’s sister
Margarito Martinez
Hortencia Cuellar
Cassandra Alaniz (Felipa’s daughter) Noe Cavazos (Margarito’s son-in-law)
Felipa Cuellar (Hortencia’s daughter) Tomasa Cavazos (Margarito’s daughter)
Illiana Guerrero (Lupe Jr.’s wife)
Illiana Rivera (Irma’s daughter)
Irma Rivera (Raul’s wife)
Raul Rivera (Rivera’s brother)
Jacqueline Garcia (Guerrero’s sister)
608 N. Tio
Ricardo Garcia (Jacqueline’s
Home of Margarito’s daughter
husband)
Mary Lou Garcia
Raul Rivera, Jr. (Irma’s son)
Jose Luis Martinez (Margarito’s
brother)
Jose Luis Martinez, Jr. (Margarito’s
nephew)
1518 E. 8th
Home of Eusebio Cadena
Delma Cadena (Eusebio’s daughter)
Osmel Cadena (Delma’s husband)
Alexia Chavez (Delma’s daughter)
Alyssa Chavez (Delma’s daughter)
Delma Chavez (Delma’s daughter)
Diana Pena (Eusebio’s daughter)
Valerie Jadine Pena (Diana’s daughter)
3
A. 316 West Los Torritos Street
Nine contested ballots were cast by voters registered at 316 West Los
Torritos Street (C.R. at 47). This two-bedroom, one-bathroom single-family
residence is the home of Rivera’s sister, Hortencia Cuellar (VI R.R. at 14). Ms.
Cuellar testified by deposition. She stated that she sleeps in one of the bedrooms
and that the other bedroom “is used for whenever [she] ha[s] any grandchildren to
go to sleep there” (III R.R. at 92). She specifically identified only three
grandchildren who ever stay at her house: Cassandra Alaniz, Corina Alaniz, and
Jesse Alaniz (all of whom are the children of Ms. Cuellar’s daughter, Felipa
Cuellar) (III R.R. at 93). Ms. Cuellar confirmed that no one other than these three
grandchildren and their mother regularly stays in her home (III R.R. at 94).
The trial court found by clear and convincing evidence that five of the nine
contested voters do not reside at 316 West Los Torritos (Suppl. C.R. at 26, 28-29)
and invalidated those votes (Id. at 29-30).1 The court did not find by clear and
convincing evidence that Raul Rivera, Sr., Raul Rivera, Jr., or Illiana Yvonne
Rivera are not residents of 316 West Lost Torritos and therefore allowed those
1
For three of those invalidated votes—those of Cassandra Alaniz, Felipa Cuellar, and Irma
Rivera—the court found it could not determine for whom the votes were cast. (Suppl. at 28). The
court thus added these three votes to the list of “undetermined illegal votes.” If the number of
undetermined illegal votes is greater than the margin of victory in the election, then a court
trying an election contest cannot determine the true outcome and must void the election. See
discussion, infra at 56-59.
4
votes to stand (Id. at 30). The court found that Illiana Guerrero does not reside at
316 West Los Torritos but did not invalidate her vote (Id. at 27).
i. Illiana Guerrero
Illiana Guerrero cast a vote in the contested election claiming 316 West Los
Torritos as her residence (III R.R. at 267). Ms. Guerrero is married to Guadalupe
Rivera, Jr. (hereinafter “Lupe Jr.”) (VI R.R. at 20), who is Appellant Rivera’s son
and was his campaign manager in the contested election (IV R.R. at 196). Ms.
Guerrero is also the sister of contested voter Jacqueline Garcia, who is married to
contested voter Ricardo Garcia (VI R.R. at 16). Voter registration applications—
all bearing a signature date of September 18, 2013—were submitted for Ms.
Guerrero, her sister, and her brother-in-law claiming residence at 316 West Los
Torritos (Contestant’s Ex. 40 at LL2086, LL2089, LL2093). The handwriting on
each of these documents is strikingly similar. Ms. Guerrero testified that she
completed her own application and that the handwriting on her application is her
own (III R.R. at 250). The Garcias testified that they did not fill out the
applications and that the handwriting is not their own (II R.R. at 210, 228-29). Ms.
Guerrero voted in-person (III R.R. at 267), but applications for mail ballots were
submitted in the Garcias’ names (Contestant’s Exs. 7A, 39 at LL1076). Votes
were then cast in the election using those mail ballots (Contestant’s Exs. 7B, 39 at
5
LL1077). The Garcias, however, did not complete those applications or cast those
votes.
Both Jacqueline Garcia and her husband Ricardo testified in open court that
neither had registered to vote, applied for a mail ballot, or cast a vote in the
contested election (II R.R. at 208, 233). In fact, they could not have legally voted
in the election because they live in Mercedes, Texas (VI R.R. at 16). The trial
court credited their testimony, finding that the votes cast in the Garcias’ names
were illegal and that those votes had been cast for Rivera (Suppl. C.R. at 26; VI
R.R. at 16-17). The court made no specific written finding regarding who cast
those illegal votes, but found at the oral rendering of judgment that it was “clear
that several frauds were committed when someone, my guess would be Illiana
Guerrero Rivera, Lupe’s wife and Jacqueline’s sister filed a [change] of residency
form and someone in the old Rivera homestead applied for ballot by mail and
voted by mail” (VI R.R. at 16). The court intended its oral announcements to be a
part of its findings of fact (Suppl. C.R. at 39).
Illiana Guerrero testified by deposition. She stated that she does not, in fact,
reside at 316 West Los Torritos and that she only mistakenly registered to vote
there (III R.R. at 251). While she testified that she and her husband Lupe Jr. reside
6
in a house located at 700 E. Eighth Street in Weslaco (III R.R. at 246-47),2 she
stated that she had intended to register at 716 N. Padre—the residence of Appellant
Rivera—because she wanted to use the same address that her husband uses “on all
his legal documents” (III R.R. at 251). She has never spent the night at that
address (III R.R. at 251-52)—confirmed by Rivera’s own testimony (IV R.R. at
201-02)—and she has no plans to move there unless she and her husband “needed
to, and times got tough” (III R.R. at 252).
The trial court found that Illiana Guerrero does not reside at 316 West Los
Torritos, but the court did not find that there was clear and convincing evidence
that she resided outside of District 5 (Suppl. C.R. at 27). While the court found
that Ms. Guerrero had no residential connection to 716 North Padre beyond her
husband’s claim to residence there, the court concluded that Ms. Guerrero’s claim
to residence “depends on the validity of her husband’s claim residing at that
address” (VI R.R. at 20). As the court did not invalidate Ms. Guerrero’s vote, it
made no finding regarding for whom she cast that vote (Suppl. C.R. at 39).
ii. Other voters at 316 West Los Torritos Street
Raul Rivera, Sr., his wife Irma Rivera (III R.R. at 98), and their children
Illiana Yvonne Rivera and Raul Rivera, Jr. (III R.R. at 97) cast votes in the election
claiming 316 West Los Torritos as their residence. (VI R.R. 29-31). However, the
2
Hidalgo County election official Brenda Renteria testified that 700 E. Eighth Street lies within
District 2 of the Weslaco City Commission (III R.R. at 127).
7
homeowner—Hortencia Cuellar—testified that none of them ever spend the night
at her house, and specifically stated that Irma, Raul, Sr., and Illiana Yvonne live
together in a rental home elsewhere. (III R.R. at 98).3 Appellant Rivera testified
that the entire family (save for one child, who is married) resides on “Missouri
Street.” The trial court found by clear and convincing evidence that Irma Rivera
resided at “South Missouri” street, not 316 West Los Torritos, and invalidated her
vote (Suppl C.R. at 30). Despite their marriage, relying on voter registration
history, the trial court did not find that Raul Rivera, Sr. resides outside District 5
with his wife (Id. at 29). Likewise, despite the testimony of Ms. Cuellar and
appellant, relying exclusively on voter registration records (or the lack thereof), the
trial court did not find that Illiana Yvonne and Raul Jr. reside outside District 5
with their parents. (Id. at 30-31). Notably, the court did find that Raul Jr.’s
application to register at 316 “was filled out by the same person who filed the same
date as his mother Irma” (whose vote was invalidated). (Id. at 31).
DPS records show an address for Raul and Irma Rivera at 105 ½ South
Missouri, Weslaco, Texas (Contestant’s Ex. 41).4
3
Ms. Cuellar was responding to counsel’s question at her deposition, in which counsel only
referenced these three and did not ask about Raul Rivera, Jr.
4
Hidalgo County election official Brenda Renteria testified that 105 ½ S. Missouri lies within
District 3 of the Weslaco City Commission. (III R.R. at 127).
8
Barb. 716 North Padre Avenue
Three contested votes were cast by voters registered at 716 North Padre
Avenue (C.R. at 47-48). This is the home of Rivera himself. (VI R.R. at 14).
The trial court found by clear and convincing evidence that one of the three
contested voters—Jose Heriberto Sandoval—did not reside at 716 North Padre
Avenue and deducted that vote from Rivera’s final vote count (Suppl. at 26-27; VI
R.R. at 18). The trial court did not find that Lupe Jr. or Laura Rivera do not reside
there, and thus the court allowed those votes to stand (Suppl. at 27, 29).
i. Lupe Jr.
Lupe Jr. cast a vote in the contested election claiming his parents’ address at
716 North Padre Avenue as his residence (Contestant’s Ex. 19 at LL178). Lupe Jr.
is the thirty-three (33) year old (see id. (date of birth on combination form)) son of
Appellant Rivera and was his campaign manager for the contested election (IV
R.R. at 196). Lupe Jr. is also married to Illiana Guerrero. Lopez attempted to
subpoena Lupe Jr. for both a deposition and trial (III R.R. at 77-78) (testimony of
process server), but was unable to locate him, forcing her to rely on testimony
obtained from his father and wife to establish his residency.
Lupe Jr.’s father, Appellant Rivera, testified at trial. He stated that his son
rents his own house at 700 East 8th Street5 with Illiana Guerrero (IV R.R. at 200-
5
This address lies within District 2 of the Weslaco City Commission. See supra, note 2.
9
01). He stated that while his son “has always considered my home his home,” he
only stays there “off and on” (IV R.R. at 200).
Lupe Jr.’s wife, Illiana Guerrero, testified that she and Lupe Jr. have lived at
700 E. Eighth since November 2012 (III R.R. at 248) and that Lupe Jr. has
typically spent the night there since that time (III R.R. at 249). With regards to the
716 North Padre address, Ms. Guerrero testified that Lupe Jr. “may have some
[personal items] at his parents’ home” but that his everyday items like clothes are
kept at 700 East 8th (III R.R. at 252). While Lupe Jr. never sleeps at 716 North
Padre (III R.R. at 252), his wife testified that when he leaves work night, “[h]e’ll
stop by his parents’ home and then come home” (III R.R. at 253) (emphasis
added).
Ms. Guerrero has not discussed with her husband’s parents any plans for the
couple to move into the house at 716 North Padre (III R.R. at 252). Instead, she
and Lupe Jr. plan on buying their own home and only live at 700 East 8th “just in
the meantime” (III R.R. at 248). However, during her cross-examination by
Appellant Rivera’s counsel, Ms. Guerrero followed counsel’s lead and stated that
700 East 8th is not Lupe Jr.’s residence and that he actually does reside at 716
North Padre (III R.R. at 276-77).
The trial court did not find by clear and convincing evidence that Lupe Jr. is
not a residents of District 5 (Suppl. C.R. at 27), because it “is not clear that he has
10
done anything other than consider 716 North Padre as his residence” (VI R.R. at
21) (emphasis added). As the court did not invalidate Lupe Jr.’s vote, it made no
finding regarding for whom he cast that vote (Suppl. C.R. at 39).
C. 717 North Padre Avenue
Two contested votes were cast by voters registered at 717 North Padre
Avenue (C.R. at 48). This address is directly across the street from Rivera’s
residence and is the home of Rivera’s close friend of fifty years, Margarito
Martinez (III R.R. at 18). Mr. Martinez testified in a deposition that was read into
the record at trial, discussing the two contested voters registered at his home: his
daughter Tomasa Cavazos and her husband Noe Cavazos.
The trial court found by clear and convincing evidence that neither Tomasa
Cavazos nor her husband Noe Cavazos reside in District 5 (Suppl. C.R. at 27). The
court further found that Tomasa cast a vote for Lopez but could not determine for
whom Noe cast his vote (Suppl. C.R. at 27). The court thus deducted one vote
from Lopez’s final vote count and added one vote to the list of undetermined
illegal votes (Suppl. C.R. at 30).
i. Tomasa Cavazos
Tomasa Cavazos testified at trial in Rivera’s case-in-chief, appearing
without a subpoena (V R.R. at 60). In fact, Ms. Cavazos testified that no one even
asked her to appear, that she showed up at the courthouse to volunteer her
11
testimony, and that her only conversation with Rivera’s counsel was a brief
discussion right before taking the stand (V R.R. at 59-61). Ms. Cavazos proceeded
to swear under oath that she resides at 717 North Padre (V R.R. at 37) and
emphatically stated she sleeps there every night (V R.R. at 39).
Other testimony contradicted Ms. Cavazos’s claim to residency at 717 North
Padre. Michelle Carpenter—best friend of Ms. Cavazos’s recently deceased
daughter Crystal—testified that Ms. Cavazos and her husband live in a house
located at 5617 FM 88 (II R.R. at 77).6 Likewise, Jose Luis Martinez—Ms.
Cavazos’s uncle—testified that she and her husband live at the FM 88 address (II
R.R. at 62).
The trial court did not believe that Ms. Cavazos’s sworn testimony regarding
her residency was truthful, instead crediting Michelle Carpenter’s and Jose Luis
Martinez’s testimony and finding that Ms. Cavazos and her husband do not reside
in District 5 (VI R.R. at 19; Suppl. C.R. at 27). The trial court did not, however,
discredit Ms. Cavazos’s statement that she voted for Lopez (V R.R. at 43), and the
court deducted Ms. Cavazos’s vote from Lopez’s final vote count (VI R.R. at 20;
Suppl. C.R. at 27).
6
Hidalgo County election official Brenda Renteria testified that 5617 FM 88 lies outside any of
the Weslaco City Commission districts (III R.R. at 128).
12
Dall. 608 North Tio Street
Two contested votes were cast by voters registered at 608 N. Tio Street
(C.R. at 48). This is the home of Mary Lou Garcia, daughter of appellant Rivera’s
close friend Margarito Martinez. (III R.R. at 209:16-18). Jose Luis Martinez, Sr.
and his son Jose Luis Martinez, Jr. testified that while they permanently reside in
Mercedes, they stayed temporarily (for about a “month, month and a half”) at 608
N. Tio during a domestic spat. (II R.R. at 23:20-24). They never intended to stay
there permanently, as they “live out on the ranch” in Mercedes and “got to tend to
our animals and keep on working.” (Id. at 25-26). Nonetheless, Jose Jr., testified,
he registered to vote at 608 N. Tio because “it’s worth a try” (Id. at 28:10-17). The
trial court recognized that Jose Sr. and Jose Jr. acknowledged to residing in
Mercedes at all relevant times and invalidated their votes, but credited their
testimony that they voted for Lopez, deducting two votes from Lopez (VI R.R. at
17-18).
E. 1518 East 6th Street
Seven contested votes were cast by voters registered at 1518 East 6th Street
(C.R. at 46-47). In total, twenty-three (23) people were registered to vote at this
five-bedroom (Contestant’s Ex. 40 at LL2125-79; V R.R. at 106) home of Eusebio
and Domitila Cadena (III R.R. at 110), and the challenged voters are their extended
family members. The trial court did not find that any of the contested voters
13
resided outside District 5. To avoid unnecessary repetition, factual detailed is
referenced only in the argument section, infra at 45-48.
II. Mail Ballot Voters
A. Esteban Martinez
Mr. Martinez voted by mail in the contested election (VI R.R. at 11-12). Mr.
Martinez had never voted by mail before, and he is able to read and write. (II R.R.
at 198-99). Rivera appeared at Mr. Martinez’s home and completed the actual
ballot for him. (Id. at 200). All Mr. Martinez did was sign the carrier envelope.
(Id. at 199). Mr. Martinez testified that he instructed Rivera to cast a vote for
himself, (id. at 201-02), a fact the court itself noted at trial (id. at 204).
On cross-examination, Rivera’s counsel did not challenge Mr. Martinez’s
testimony that he had voted for Rivera. (Id. at 205). Mr. Martinez was only asked
to verify that the signature on the carrier envelope containing his ballot was his
own. (Id.). At no other point during trial did Rivera present any evidence
contradicting Mr. Martinez’s testimony that Rivera completed his ballot under the
instruction to cast a vote for Rivera. The trial court found Mr. Martinez’s ballot
illegal for Rivera’s failure to disclose his signature and name and address on the
carrier envelope, but did not enter a finding that Martinez’s ballot contained a vote
for Rivera. (Suppl. C.R. at 25; VI R.R. at 11-12).
14
III. Undervote Analysis
Overall, the trial court determined that there were eleven ballots cast in the
November 2013 elections that were illegal (seven cast by mail, and four by
nonresidents), but for which the evidence did not establish whether that ballot
contained a vote for either Lopez or Rivera (Suppl. C.R. at 31). The November
2013 ballot contained multiple city elections and state constitutional amendment
propositions. Based on the canvass report, the court found that of all the ballots
cast in the November 2013 election by residents of District 5, four of those ballots
did not contain a vote for either Lopez or Rivera (referred to as ‘undervotes’)
(Suppl. C.R. at 31). To account for the possibility that any of the eleven (11)
undetermined illegal votes were also undervotes as to the District 5 race, the court
deducted four votes from the list of undetermined illegal votes, leaving an adjusted
total of seven illegal ballots that by mathematical necessity contained a vote in the
District 5 race, but undetermined as to which candidate (Suppl. C.R. at 31; VI R.R.
at 33-34).
IV. Judgment of the Trial Court
The trial court’s findings resulted in an adjusted final vote count of 468
votes for Lopez and 471 votes for Rivera, creating an adjusted margin of victory
for Rivera of three votes (Suppl. C.R. at 31). Because the adjusted total of seven
undetermined illegal votes was greater than Rivera’s three-vote adjusted margin of
15
victory, the trial court concluded that it was unable to declare a winner in the
District 5 race (Suppl. C.R. at 32). 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 (C.R. at 240-41). This appeal
(and cross-appeal) ensued.
16
SUMMARY OF THE ARGUMENT
The trial court has already eliminated thirty illegal ballots. Two were the
result of “several frauds…committed when someone, my guess would be Illiana
Guerrero Rivera, Lupe [Rivera, Jr.]’s wife…filed a [change] of residency form and
someone in the old Rivera homestead applied for ballot by mail and voted by mail”
on behalf of Jacqueline and Ricardo Garcia (VI R.R. at 16:20-25). Lopez
proved—with evidence that was uncontradicted but inappropriately marginalized
by the trial court—that at least eleven more ballots were illegally cast by persons
not residing in District 5.
The trial court invalidated five ballots cast by individuals registered at
appellant Lupe Rivera’s sister’s home (316 W. Los Torritos), including Irma
Rivera, finding that they resided outside the District. However, Lopez additionally
proved that Irma’s husband Raul Rivera, Sr., and their two children Raul Jr. and
Illiana Yvonne, reside with Irma outside the district. The evidence conclusively
establishes that these individuals not only lack bodily presence and intent for
residence at 316 W. Los Torritos, but that they have established same at Missouri
Street. Likewise, the evidence is conclusive that Illiana Guerrero and Lupe Rivera,
Jr., not only lack bodily presence and intent to reside at 716 N. Padre, but have
established the same at the apartment they have shared outside the district for a
year prior to the election. The same is true for six individuals who claimed to
17
reside—along with twenty three others—at a single family home at 1518 E. Sixth
Street. With respect to Illiana Guerrerro, the trial court also erred in basing her
residency on that of her husband, implicating de novo review as to her residency.
With respect to all residency challenges, the court appears to have accorded
conclusive weight to one single factor—the voter’s registration history. This factor
is circular and cannot trump facts establishing that the residency elements—bodily
presence and intent—are not satisfied.
The trial court also erred in crediting the testimony of illegal voters Tomasa
Cavazos, Jose Luis Martinez, Sr. and Jose Luis Martinez, Jr., to the effect that they
voted for Lopez instead of Rivera. These individuals were all part of a family
supporting Rivera, and by the time they testified, it was clear that their residency
claims could not withstand scrutiny. The self-interested testimony of such a voter
is inherently suspicious and the trial court erred in deducting their votes from
Lopez.
Lastly, the trial court erred in failing to find—based on the uncontradicted
evidence—that Esteban Martinez’s invalidated ballot contained a vote for Rivera.
18
ARGUMENT
I. Standard of Review of Election Contests
A. Scope of Election Contest Inquiry
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.” Tex. Elec. Code § 221.003(a). In an
election contest, “‘illegal vote’ means a vote that is not legally countable.” Id. at §
221.003(b).
The District 5 election between Lupe Rivera and Leticia Lopez was on the
ballot along with various constitutional amendments and a race for Weslaco
mayor. (Contestant’s Ex. 21). In such circumstances, i.e., where the contested
election was on a ballot involving other races,
The contestant must next show the illegal votes were cast in the race
being contested. Miller v. Hill, 698 S.W.2d 372, 375 (Tex. App.–
Houston [14th Dist.] 1985, writ dism’d w.o.j., 714 S.W.2d 313 (Tex.
1986) (per curiam)]; Medrano v. Gleinser, 769 S.W.2d 687, 688
(Tex.App.–Corpus Christi 1989, no writ).
Reese v. Duncan, 80 S.W.3d 650, 656 (Tex. App.–Dallas 2002, pet. denied) (some
internal citations omitted). Here, the requirement that Contestant show the illegal
19
votes were cast “in the race being contested” means she must show illegal votes
were cast in the District 5 race. “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[.]” Tex. Elec. Code
§ 221.011(a). “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. at § 221.011(b). “If the tribunal hearing an election contest can
ascertain the true outcome of the election, the tribunal shall declare the outcome,”
id., but “the tribunal shall declare the election void if it cannot ascertain the true
outcome of the election.” Id. at § 221.012(a), (b).
Therefore, if Contestant shows that an illegal vote was cast, and that the vote
was cast for a particular candidate, this court “shall” subtract the vote from that
candidate’s total. Id. at § 221.011(a). However, Contestant is not required to
show the candidate for whom an illegal vote was cast, because “[t]he election
code…recognizes that [such] may be impracticable or even impossible[.]”
Gonzales v. Villareal, 251 S.W.3d 763, 782 (Tex. App.–Corpus Christi 2008, pet.
dism’d). “Rather,” the Thirteenth Court of Appeals has explained:
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. § 221.011(b) (Vernon 2003).
Although section 221.011 does not dictate exactly how those illegal
votes should be considered, section 221.009 provides the answer: ‘[i]f
the number of illegal votes is equal to or greater than the number of
20
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. § 221.009(b) (Vernon 2003). In other
words, if a 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 declare the election void without ever
inquiring as to the candidate for whom those illegal votes were cast.
Gonzalez, 251 S.W.3d at 782.
The trial court may infer that illegal ballots lacking evidence of a vote in the
contested race actually contained votes in the contested race by compensating for
the number of undervotes that could potentially be among those ballots. Reese, 80
S.W.3d at 664.7
B. Standard of Review on Appeal
The standard of review on appeal from a judgment in an election contest is
whether the trial court abused its discretion. Gonzalez, 251 S.W.3d at 774-75;
Guerra v. Garza, 865 S.W.2d 573, 576 (Tex. App.–Corpus Christi 1993, writ
dism’d w.o.j.). A trial court commits an abuse of discretion when either (1) the
court did not have sufficient information upon which to exercise its discretion or
(2) the court erred in its application of discretion such that the court’s decision is so
arbitrary and unreasonable that it rises to the level of a clear and prejudicial error
of law. See Gonzalez, 251 S.W.3d at 774-75 n.16.
7
See also Green v. Reyes, 836 S.W.2d 203 (Tex. App.–Houston [14th Dist.] 1992, no writ)
(using statistical analysis to determine that contestant had proven enough illegal votes to void
election).
21
II. The Trial Court Abused Its Discretion by Failing to Invalidate
Additional Votes, Because Lopez Proved as a Matter of Law That
Additional Votes Were Cast by Persons Not Residing In District 5.
The uncontradicted evidence presented in this case establishes as a matter of
law that, in addition to the thirty uncountable votes already invalidated, several
additional voters cast illegal votes in the contested race. The trial court’s failure to
invalidate these additional votes was error in its application of discretion that was
so arbitrary and unreasonable that it rises to the level of a clear and prejudicial
error of law.8
A. Legal sufficiency review of issues upon which Lopez had the
burden of proof at trial.
Lopez had the burden at trial to prove by clear and convincing evidence that
illegal votes affected the outcome of the contested race. In reviewing the legal
sufficiency of an adverse finding on an issue for which the appellant had the
burden of proof at trial, the record is reviewed as follows:
In a legal sufficiency review, a court should look at all the evidence in
the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction
that its finding was true. To give appropriate deference to the
factfinder's conclusions and the role of a court conducting a legal
sufficiency review, looking at the evidence in the light most favorable
to the judgment means that a reviewing court must assume that the
8
Lopez preserved error for this appeal through the multiple rounds of trial and post-judgment
briefing that presented the trial court with all of the legal contentions she makes in her appeal
(C.R. at 83-239). See Anderson Mill Mun. Util. Dist. v. Robbins, No. 03-04-00369-CV, 2005 WL
2170355 (Tex. App.–Austin Sept. 8, 2005, no pet.); see also Office of Atty. Gen. of Tex. v.
Burton, 369 S.W.3d 173 (Tex. 2012).
22
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. This does not mean that
a court must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could
skew the analysis of whether there is clear and convincing evidence.
Gonzalez, 251 S.W.3d at 775-76 (quoting In re J.F.C., 96 S.W.3d 256, 265-66
(Tex. 2002)). See Alvarez v. Espinoza, 844 S.W.2d 238, 248 (Tex. App.–San
Antonio 1992, writ dism’d w.o.j.) (reversing adverse finding against an election
contestant who proved votes were illegal as a matter of law); but see Slusher v.
Streater, 896 S.W.2d 239, 243 (Tex. App.–Houston [1st Dist.] 1995, no writ)
(reviewing an adverse finding against an election contestant as if the trial court had
made a positive finding that the voters “voted legally” instead of finding that the
contestant had not met her burden to prove the votes were illegal).
B. Residency under the Election Code
“To be eligible to vote in an election, a person ‘must…be a resident of the
territory covered by the election.’” Gonzalez, 251 S.W.3d at 776 (citing Tex. Elec.
Code § 11.001). “Residence” is defined in the Code as follows:
(a) In this code, “residence” means domicile, that is, one’s home
and fixed place of habitation to which one intends to return after
any temporary absence.
(b) Residence shall be determined in accordance with the common-
law rules, as enunciated by the courts of this state, except as otherwise
provided by this code.
23
(c) A person does not lose the person’s residence by leaving the
person’s home to go to another place for temporary purposes only.
(d) A person does not acquire a residence in a place to which the
person has come for temporary purposes only and without the
intention of making that place the person’s home.
Tex. Elec. Code § 1.015 (emphasis added).
To establish residency, both elements—bodily presence and intent—must be
met. Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964). “Neither bodily presence
alone nor intention alone will suffice to create the residence, but when the two
coincide at that moment the residence is fixed and determined.” Id. “[U]nder the
statute the election officials are to focus on the voter’s ‘home and fixed place of
habitation.’ Intention and presence are important evidentiary factors, and a
temporary move from one place to another will neither create a new residence nor
lose an old one.” Alvarez v. Espinoza, 844 S.W.2d 238, 247 (Tex. App.–San
Antonio 1992, writ dism’d w.o.j.) (emphasis added). Even where intent is
sufficient, residency is not established if the voter’s “presence in the district is, as a
matter of law, too attenuated.” Id. at 248; see also Owens Corning v. Carter, 997
S.W.2d 560, 571 (Tex. 1999) (“[A]lthough intent is necessary to establish a
permanent residence, it alone is not sufficient to establish a permanent residence.”
(emphasis in original)). “In assessing presence, the cases have considered such
conduct as where the voter sleeps and keeps clothes and furniture, and the length of
time spent in the alleged residence.” Id.; see also In re Graham, 251 S.W.3d 844,
24
850-51 (Tex. App.–Austin 2008, no pet.) (for purposes of “domicile” as related to
jurisdiction, evidence that individual “slept, gardened, entertained guests, stored
her personal possessions, and generally conducted day-to-day activities in Travis
County conclusively establishes residence in fact and intent to make the residence
her home.”).
While a person need not continue to be present for any specific length of
time to establish permanent residency, that person must take overt, willful action to
establish the location as her home and fixed place of habitation. See Mills, 377
S.W.2d at 637; Alvarez, 844 S.W.2d at 247; State v. Fischer, 769 S.W.2d 619, 624
(Tex. App.–Corpus Christi 1989, no writ).
In Alvarez v. Espinoza, the San Antonio Court of Appeals reviewed the
sufficiency of the trial court’s determination that nine voters were residents of
Precinct Three of the Frio County Commissioners Court. 844 S.W.2d at 247. In
overruling the trial court’s finding, the court of appeals held that six of these voters
were not residents as a matter of law. Id. at 248. Robert Nieto had lived with his
wife in San Marcos, Hays County for several years while she attended school
there. Id. While he stated he and his wife would “make more definite plans when
she graduates,” he still claimed that Frio County was his permanent home. Id.
Voters Rolando Segovia and his wife Monica Mendez had lived outside precinct
three for several years and moved back one month after the election. Id. They
25
voted in the election, claiming to have been residents of Rolando’s mother’s home
within the district during their absence. Id.
In holding that each of these voters were not entitled to vote in the election,
the court explained, “It cannot be seriously argued that precinct three is their
‘home and fixed place of habitation’ under § 1.015. Although they may satisfy the
intent element of the test for residence, their presence in the district is, as a matter
of law, too attenuated.” Id.
In State v. Fischer, this Court held that Steven Fischer, a candidate for
public office in Willacy County, was ineligible to run because he did not reside in
the county on or before the deadline to file for office. 769 S.W.2d at 620, 624.
Fischer had taken some action to establish his presence in the county, including:
 applying for a job at the Willacy County Attorney’s Office;
 spending four days at a hotel in Willacy County;
 looking for homes for sale in Raymondville;
 applying to teach school at Pan American University in Hidalgo County;
 telling people he was going to live and work in Willacy County; and
 discussing with the Willacy County Attorney a job available on
September 21, 1987.
This Court held that these activities alone did not establish his presence in
Willacy County. Id. “Something more is needed. [Fischer] may have intended to
reside in Willacy County at some time or another, but one’s residence cannot be
determined solely by intention.” Id. Like the candidate in Mills, Fischer’s
26
presence in Willacy County was established only when he took the overt action of
accepting the job with the county attorney on September 21, 1987. Id.
Moreover, “[w]hen a person’s statements regarding residence are
inconsistent with other evidence showing actual residence, such statements ‘are of
slight weight’ and cannot establish residence in fact.” Woods v. Legg, 363 S.W.3d
710, 715 (Tex. App.–Houston [1st Dist.] 2011, no pet.) (citing In re Graham, 251
S.W.3d at 850)); accord McDuffee v. Miller, 327 S.W.3d 808, 820 (Tex. App.–
Beaumont 2010, no pet.) (“[D]ocuments in evidence allowed the trial court to infer
that the intent of each voter casting a challenged vote was to stay at the Residence
Inn temporarily, and not to establish residence there despite each voter’s testimony
to the contrary.”).
C. Lopez proved as a matter of law that Lupe Jr. and Illiana
Guerrero were not eligible to vote because they do not reside in
District 5, and that they cast votes for Rivera in the election.
Lupe Jr.’s and his wife Illiana Guerrero’s votes were illegal because they are
not residents of District 5. Even considering all the evidence in the light most
favorable to the lower court’s finding, a “reasonable trier of fact could” not have
“formed a firm belief or conviction that its finding was true” because “undisputed
facts”9 established as a matter of law that Lupe Rivera, Jr. and Illiana Guerrero
9
See Gonzalez, 251 S.W.3d at 775-76.
27
have a “home and fixed place of habitation” outside District 5 and not at 716 North
Padre. 10
1. Undisputed facts establish that Lupe Rivera, Jr. and Illiana
Guerrero have bodily presence in a residence outside District
Five.
As a preliminary matter, it is important to note that the trial court expressly
stated that, considering Illiana’s residency on its own merits, “there would be no
doubt that she would not have a residence anywhere in District 5.” (VI R.R. at 20).
However, the trial court believed—erroneously—that ““[Illiana’s] claims to reside
at [the] North Padre address depends on the validity of her husband’s claim
residing [sic] at that address,” because “the only connection she has with the North
Padre address is that her father-in-law owns it and her husband claims it as his
residence.” Id.11 Thus, the trial court accorded conclusive weight—even as to
Illiana Guerrero—to the residency claims of Lupe Jr.
10
The trial court made some specific findings regarding the constituent elements of residency
during the oral rendering of judgment (VI R.R. at 20-21) but not in its written findings (Suppl.
C.R. at 27). A reviewing court, however, will imply all necessary findings to support the
judgment if they are supported by the record. See Gonzalez, 251 S.W.3d at 775; Burnside Air
Conditioning and Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 892-93 (Tex. App.–Dallas
2003, no pet.).
11
The trial court seems to have based much of its determination regarding Illiana Guerrero on
the proposition that a wife’s residence depends on the residence of her husband (VI R.R. at 20).
This is not the law. A line of cases did once hold that the residence of the husband depends on
the residence of the wife, but those cases were based on an election statute no longer in effect.
See generally Snyder v. Pitts, 241 S.W.2d 136, 413 (Tex. 1951). To the extent that the trial court
based its conclusions on this test, those conclusions should be reviewed de novo. See Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992) (“A trial court has no ‘discretion’ in determining what
the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or
apply the law correctly will constitute an abuse of discretion.”).
28
The only evidence Rivera offered to show his son’s presence at 716 N. Padre
was the testimony of Rivera that Lupe Jr. stays there “off and on” (IV R.R. at 200).
This does not amount to even a scintilla of evidence to support the conclusion that
he has established bodily presence at 716 N. Padre, because it does not
demonstrate willful, overt action to make that place his home and fixed place of
habitation. Any visitor can stay at a place “off and on” without establishing it as
his home. Like Fischer, Lupe Jr.’s actions are not enough; “[s]omething more is
needed” to demonstrate his presence for residency. See Fischer, 769 S.W.2d at
624.
Here, it is undisputed that Lupe Jr. and his wife Illiana Guerrero have lived
together continuously since November 2012 in a house at 700 E. Eighth Street (III
R.R. at 246-47; IV R.R. at 200-01).12 At the beginning of her testimony, in
response to the straightforward question, “[W]here do you live?,” Ms. Guerrero
responded “I reside at 700 East 8th Street in Weslaco.” (III R.R. at 246) (emphasis
added). This followed:
Q: And how long have you lived there, about, approximately?
A: About two years, year and a half.
Q: And is that an apartment or --
A: It's a home.
Q: Okay. Do you own the home?
A: No, we rent.
12
When asked where she and her husband live, Ms. Guerrero answered 700 East 8th (III R.R. at
246). The word ‘live’ strongly connotes physical presence. Powell v. Stover, 165 S.W.3d 322,
326 (Tex. 2005).
29
Q: Who is we?
A: Lupe and I, Lupe Rivera and I.
Q: Lupe Rivera, Jr.?
A: Yes.
(Id. at 246-47). Ms. Guerrero further testified:
Q: So as far as you’re concerned, you all live there together
permanently, I mean for the foreseeable future?
A: No. I mean, we plan on buying on a home. This is just in the
meantime.
Q: Okay. Have you all looked for homes, or do you know where
you’re gonna look?
A: No, not really.
…
Q: I believe in November 2012 is when you said you all moved to
the East 8th Street address?
A: Yes.
Q: And has [Lupe Rivera, Jr.] stayed there overnight for –
A: Yes.
Q: --you know, typically since then?
A: Yes.
(Id. at 248-49). As for herself, Ms. Guerrero confirmed that she has not slept a
single night at the 716 N. Padre home. (Id. at 251-52; see also IV R.R. at 201-
02).13
Q: Okay. Does Lupe Rivera, Jr. ever sleep there [at 716 N. Padre]?
A: No.
Q: And is it safe to say if he’s lived with you at 700 East 8th Street since
November 2012, does he keep all of his clothes and his personal items at
that address?
A: He may have some things at his parents’ home, I mean. I have things at
my parents’ home, so—
Q: Right, but the stuff that he, you know, uses every day, his clothes are
in his closet at 700 East 8th; is that correct?
13
Ms. Guerrero does not even visit 716 N. Padre often (III R.R. at 254).
30
A: Yes.
Q: Okay. When he comes home from work, does he come home to 700
East 8th Street?
A: He’ll stop by his parents’ home and then come home.
(Id. at 252-53 (italics added)). Appellant Rivera confirmed at trial that his son
“rents his own apartment” with Illiana at 700 E. Eighth (IV R.R. at 200:22, 201:12-
24). Illiana’s sister Jacqueline confirmed that Illiana and Lupe Jr. live together at
700 E. Eighth St. (II R.R. at 215:2-24; IV R.R. at 201:12-24).
Therefore, the evidence as to the bodily presence element of residency is
overwhelming and uncontradicted: Lupe Jr.’s and Illiana Guerrero’s “home and
fixed place of habitation” is in District 2, not District 5. Illiana herself has never
slept at 716 North Padre. Thirty-three year-old Lupe Jr. sleeps at 700 E. Eighth
with his wife, and not at 716 N. Padre with his parents. Lupe Jr.’s clothes and
other personal belongings are at his home with his wife.
Like the voters in Alvarez, their presence in District 5 is too attenuated. 844
S.W.2d at 248. Just as Robert Nieto could not claim presence in Frio County when
he lived with his wife in Hays County and had no definite plans to move, id., Lupe
Jr. and Illiana Guerrero cannot claim presence in District 5 when they live in
District 2 and have no definite plan to move. Just as Rolando Segovia could not
claim presence at his mother’s home when he in fact lived with his wife elsewhere,
id., Lupe Jr. cannot claim presence at his parents’ house when he and Illiana
Guerrero live together elsewhere. It cannot seriously be argued that District 5 is
31
their “home and fixed place of habitation.” See id. Instead, the uncontradicted
evidence proves that Illiana Guerrero and Lupe Jr. have established bodily
presence in District 2. Because they failed to meet one of the necessary elements
of residency, their votes in the contested election were illegal.
2. Undisputed facts establish that Lupe Jr. and Illiana Guerrero
have a present intention to reside at 700 E. Eighth, not 716 N.
Padre.
Residency requires a present intent to make a place one’s home and fixed
place of habitation and requires demonstrable evidence of that intent beyond mere
assertions of residence. Neither Lupe Jr. nor his wife Illiana Guerrero have
demonstrated present intent to make 716 N. Padre Avenue their home and fixed
place of habitation.
Residence is not established until a person demonstrates a present intent to
make that place her home and fixed place of habitation, and it is lost when a person
leaves a permanent home and moves to another place with no present intent to
return to the former home. See Mills, 377 S.W.2d at 637; Kiehne v. Jones, 247
S.W.3d 259, 264 (Tex. App.–El Paso 2007, pet. denied) (explaining that residence
“depends in great extent on the present intent of the individual” (emphasis added));
Tovar v. Bd. of Trs. of Somerset Indep. Sch. Dist., 994 S.W.2d 756, 762 (Tex.
App.–Corpus Christi 1999, pet. denied) (explaining loss of residence if no present
intent to return).
32
A person loses residence at a place by moving to a new location without
presently intending to return to that place. Tovar, 994 S.W.2d at 762. Tovar was a
school board trustee, but when he moved outside of his district, the board sought to
oust him for failing to maintain residence in the district he represented. Id. at 758.
Tovar admitted that he had moved to an address outside of his district, but
maintained that this address was only temporary and that he had always intended to
return to his district. Id. at 762. The substance of his testimony, however, only
demonstrated the reasons he left his district; it did not demonstrate evidence
supporting his claim of his intent to return. Id.
In holding that he had lost his residence in his district, this Court explained
that “where a county officer moves away from the territory the officer represents
and there is no evidence that the county officer intends to return to that territory,
the county officer vacates his or her office.” Id. at 763. As residence for purposes
of running for office is legally equivalent to residence for purposes of voting, this
holding applies to voters who move away and offer no evidence of their intent to
return. See Tex. Elec. Code § 1.015 (defining residence for all purposes under the
Election Code).
a. Application to Illiana Guerrero
The fact that Guerrero presently makes her home at 700 E. Eighth St. is
strongly indicative of her present intent to reside there. In re Graham, 251 S.W.3d
33
at 850-51 (holding evidence that person slept and conducted day-to-day activities
in Travis County “conclusively establishes residence in fact and intent to make the
residence her home”). There was no evidence offered to support the trial court’s
implied finding that Illiana Guerrero does not have the present intent to reside
outside District 5. The only evidence offered to contradict Ms. Guerrero’s
definitive statements regarding her intent to reside at 700 E. Eighth was a series of
responses to leading questions by Appellant Rivera’s counsel that did not actually
address her present intent to make 716 N. Padre her home and fixed place of
habitation (nor did they address any question regarding her presence there) (III
R.R. at 276-77).
Instead, counsel only led Ms. Guerrero to agree with his own legal
conclusions, such as the conclusion that her “residence is . . . the residence of [her]
husband, right?” (III R.R. at 277). Legal conclusions, however, are not evidence
unless they are sustained by facts. See Birnberg v. Sparks, 410 S.W.2d 789, 794
(Tex. App.–Corpus Christi 1966, writ ref’d n.r.e.) (holding that legal terms used in
an affidavit were “legal conclusions, and although permissible under the statute as
pleadings, they are required to be sustained by evidence of facts”). A bare
assertion of one’s residency cannot alone be factual evidence of intent, because
such a statement is implicit in the act of submitting a voter registration
34
application.14 Moreover, where “a person’s statements regarding residence are
inconsistent with other evidence showing actual residence, such statements ‘are of
slight weight’ and cannot establish residence in fact.” Woods, 363 S.W.3d at 715.
As Rivera introduced no factual evidence to support the legal conclusion that Ms.
Guerrero intends to reside at 716 N. Padre, there was no evidence supporting the
trial court’s finding that she does not have the present intent to reside outside
District 5.
The entirety of the record clearly supports, as a matter of law, that Illiana
Guerrero has the present intent to make 700 E. Eighth St. her home and fixed place
of habitation. When asked if her husband returns to that address after work each
day, she explained that he will “stop by his parents’ home and then come home”
(III R.R. at 253) (emphasis added). While she did not actually ever submit a voter
registration application at 716 N. Padre, she claimed to have intended to register
there; however, she did not intend to register there because she thinks of 716 N.
Padre has her home, but because she wanted to use the same address that her
husband uses on “legal documents” (III R.R. at 251).
14
Without more, the test outlined in Mills would be rendered meaningless, as the mere filing of a
voter registration application would create an unconstitutional irrebuttable presumption of intent
to make a place one’s home and fixed place of habitation. See Vlandis v. Kline, 414 U.S. 441,
452 (1973) (“[P]ermanent irrebuttable presumptions have long been disfavored under the Due
Process Clause of the Fifth and Fourteenth Amendments.”).
35
To the extent that Ms. Guerrero has any present intent to make any place
other than 700 E. Eighth St. her home and fixed place of habitation, it is not 716 N.
Padre. When Guerrero testified that the 700 E. Eighth residence was temporary
and that they “plan on buying a home,” Counsel for Lopez asked Guerrero if she
knew where they were going to look for a home to buy. (III R.R. at 249).
Guerrero had a perfect opportunity to state that they intended to move into 716 N.
Padre, if that was in fact the case. Instead, Guerrero stated she did “not really”
know where they hoped to buy. (Id.) Moreover, she has not discussed with her
husband’s parents the possibility of moving to 716 N. Padre (III R.R. at 252), and
would only consider doing so on the contingency that she and her husband “needed
to, and times got tough” (III R.R. at 252). The entirety of the record thus supports,
as a matter of law, the contrary proposition that Ms. Guerrero presently intends to
make 700 E. Eighth her home and fixed place of habitation.
b. Application to Lupe Rivera, Jr.
As with his common-law wife Illiana, the fact that Lupe Jr. actually makes
his home at 700 E. Eighth St. is strongly indicative of his intent to reside there. In
re Graham, 251 S.W.3d at 850-51. There was no evidence offered to support the
trial court’s implied finding that Lupe Jr. does not have the present intent to reside
outside District 5. Aside from the legal conclusions Illiana Guerrero repeated
during questioning by Rivera’s counsel, the only testimony even touching on Lupe
36
Jr.’s intent was the statement made by Rivera—an interested party whose job
depended on his answer—that his son has “always considered my home his home”
(IV R.R. at 200). As an initial matter, self-serving statements regarding residency
that are inconsistent with other evidence are “of slight weight and cannot establish
residence in fact.” Woods, 363 S.W.2d at 715. Even aside from the slight weight
to be accorded such a statement, like the trustee in Tovar, Appellant’s statement
does not demonstrate that when Lupe Jr. moved out of his parents’ house at 716 N.
Padre, he had the present intent to move back in after a temporary absence or that
such intent was present at the time of this election. 994 S.W.2d at 762. Stripped of
the self-serving and conclusory testimony of Illiana and Rivera, there was thus no
evidence to support the trial court’s finding.
The entirety of the record clearly supports, as a matter of law, the contrary
proposition the Lupe Jr. intends to make 700 E. Eighth his home and fixed place of
habitation. His wife stated that they plan on buying their own home when they are
able, but they presently intend to live at 700 E. Eighth “in the meantime” (III R.R.
at 249). They have not yet even begun to look for a home to buy (III R.R. at 249).
In the entirety of her direct testimony, Ms. Guerrero continuously refers to 700
East 8th as their home and 716 N. Padre only as her husband’s parents’ home (See
e.g., III R.R. at 253). The entirety of the record thus supports, as a matter of law,
37
the contrary proposition that Lupe Jr. presently intends to make 700 E. Eighth
Street his home and fixed place of habitation.
3. Lupe Jr. and Illiana Guerrero cast their votes for Rivera.
Because the trial court did not conclude that the votes of Lupe Jr. and Illiana
Guerrero were cast illegally, it made no finding regarding for whom those votes
were cast. Because she proved as a matter of law that Lupe Jr. and Illiana
Guerrero cast illegal votes, Lopez requested the trial court make additional
findings that they voted for Rivera (Suppl. C.R. at 34-35), but the court refused
(Suppl. C.R. at 39). A trial court’s refusal to make a requested finding is
reviewable on appeal. Tex. R. Civ. P. 299.
The record contains no evidence that would support a conclusion that Lupe
Jr. and Illiana Guerrero either cast their illegal votes for Lopez or left their ballots
blank as to the District 5 race. The entirety of the record clearly supports the
contrary proposition that Lupe Jr. and Illiana Guerrero cast their ballots for Rivera.
Lupe Jr. was Rivera’s campaign manager in the very election at issue here (IV R.R.
at 196, and was present when illegal mail ballots—which the trial court found
contained votes for Rivera—were completed (II R.R. 136 (testimony of mail ballot
voter Marlen Martinez)). Lupe Jr. was actively supporting appellant Rivera during
the litigation of this case, having visited the home of Maria Berrones in an attempt
38
to persuade her to ignore her deposition subpoena.15 No reasonable person would
not form a firm belief or conviction that Lupe Jr. cast his ballot for his father,
Rivera.
The evidence also supports the inference that Illiana Guerrero cast her ballot
for Rivera. In addition to her marriage to Rivera’s son and campaign manager, the
trial court speculated that Ms. Guerrero committed fraud by submitting voter
registration applications and casting mail ballots in the names of her sister and
brother-in-law (VI R.R. at 16). The court found that those fraudulently submitted
ballots contained votes for Rivera (VI R.R. at 17). In analyzing Ms. Guerrero’s
claim to have only mistakenly registered to vote 316 West Los Torritos, the court
stated that “[i]f the test was fraud, the Court would have an easier time in
disallowing her vote” (VI R.R. at 22).16 No reasonable person would not form a
firm belief or conviction that Illiana Guerrero cast her ballot for her father-in-law,
Rivera.
15
(IV R.R. at 58-60).
16
The trial court seems to indicate that it both believed Ms. Guerrero fraudulently submitted her
voter registration and mistakenly registered at the wrong address. However, “one who knowingly
misrepresents the location of his precinct will not thereafter, in the face of his fraud, be heard to
say that he should be permitted to select his place of voting.” Graham v. Villarreal, 242 S.W.2d
258, 260 (Tex. Civ. App.–San Antonio 1951, no writ). To the extent the trial court applied the
law incorrectly, its conclusions should be reviewed de novo. See supra, note 11.
39
D. Lopez proved as a matter of law that an additional nine ballots
were illegally cast by voters who resided outside District 5.
The trial court erred in failing to find by clear and convincing evidence that
an additional nine votes were illegally cast by nonresidents.17 Even considering all
the evidence in the light most favorable to the lower court’s finding, a “reasonable
trier of fact could” not have “formed a firm belief or conviction that its finding was
true” because “undisputed facts”18 established as a matter of law that these voters
have a “home and fixed place of habitation” outside District 5. These voters will
be discussed in groups according to the home at which they registered and voted.
1. 316 West Los Torritos
316 West Los Torritos is the home of appellant Rivera’s own sister,
Hortencia Cuellar. (III R.R. at 90). While the trial court has already invalidated
five votes cast from this home, including that of Irma Rivera, it erred in failing to
find that Irma’s own husband Raul Rivera, Sr., and their children Illiana Yvonne
Rivera and Raul Rivera, Jr. are likewise not residents of District 5.
316 W. Los Torritos has two bedrooms and one bathroom. (Id. at 92). One
bedroom is the “bedroom that [Hortencia] sleep[s] in,” and the other bedroom “is
used for whenever [she] ha[s] any grandchildren to go to sleep there.” (Id. at 92:4-
17
Those voters were: (1) Delma Cadena, (2) Alexia Dinah Chavez, (3) Alyssa Domitria Chavez,
(4) Delma Ann Chavez, (5) Diana Pena, (6) Valerie Jadine Pena, (7) Illiana Yvonne Rivera, (8)
Raul Rivera, Sr., and (9) Raul Rivera, Jr. (Suppl. C.R. at 27-29).
18
See Gonzalez, 251 S.W.3d at 775-76.
40
14). Hortencia Cuellar confirmed that nobody regularly stays in her home other
than three grandchildren and Felipa Cuellar. (Id. at 92:14-17) (Q: [J]ust to make
sure the record is clear, so besides Cassandra Alaniz, Corina Alaniz, Jesse Alaniz,
and Felipa…nobody else regularly stays in the home? A: No. They come to visit,
only).19
Hortencia further testified that Irma, Raul and their daughter Illiana Yvonne
Rivera all live in a rent house:
Q: Where do they [Irma, Raul, and Illiana Yvonne] live right
now, do you know?
A: No, I don’t know where they live, I don’t.
Q: But you know that they live in a rent house?
A: Yes, that I do know. I know that they live in a rent home.
Q: How is it that you know they live in a rent home, but you don’t
know where it is?
A: Because I speak with my brother, and he tells me that he’s renting,
but I—we talk, but I’ve never visited him, so I don’t know his
address, and that’s the truth. I don’t know where he lives.
Q: Okay. But your brother, Raul, you’re referring to Raul,
correct?
A: Yes, yes.
Q: And so he has told you that he’s renting a home?
A: All the time. He has rented houses throughout his entire life.
Q: Including right now?
A: Yes, sir.
19
While Hortencia testified unequivocally to facts establishing that she resides at 316 W. Los
Torritos alone, even if this were not the case, the mere fact that ten individuals registered to vote
at a home with only two bedrooms—only one of which is unoccupied—is inconsistent with the
notion that the home is intended as a fixed habitation for all those claiming residency. See
McDuffee, 327 S.W.3d at 823 (finding that the trial court could permissibly “consider the
number of persons staying in the rooms as inconsistent with the notion that the living
arrangements were intended as being permanent”).
41
(III R.R. at 98:16-99:9). Ms. Cuellar further testified that Raul and Irma had
stayed with her for a period of time about 15 years ago, but that since that time,
they have not ever come over to sleep.
Q: So you said no. Is that Irma and Raul, either one of them come
over to sleep?
A: No sir.
Q: And what about Illiana [Yvonne], does she ever come over and
sleep there?
A: No.
(Id. at 100:9-13).
Not only do none of these individuals ever sleep over, but nobody besides
Ms. Cuellar herself keeps any clothes or personal items at 316 West Los Torritos.
(Id. at 101:8-22). Hortencia testified initially that nobody besides Hortencia
receives mail at her home. (Id. at 108:23-25). Moreover, Ms. Cuellar testified that
nobody has spoken to her about the possibility of moving into her home, and that
she has no plans to sell her home. (Id. at 103:2-12). She was not even aware that
any other individuals were registered to vote at the home. (Id. at 102:10-13).
Thus, the testimony of the homeowner at 316 West Los Torritos establishes
that (1) none of these voters—including Irma, Raul, Sr., Raul, Jr., and Illiana
Yvonne Rivera— have a presence at the home and that (2) they live in a rented
home elsewhere. In fact, Ms. Cuellar testified directly—referring to Raul, Irma,
and Illiana Yvonne—that “I don’t know where they live, I don’t.” (Id. at 98:17).
42
Appellant Rivera himself testified that Irma and Raul Rivera reside at “Missouri
Street,” along with their children, whom Rivera identified as “Raul, Jr., Santos
Rivera, and Illiana Rivera,” except for one of the children who is married. (IV
R.R. at 212:5-213:9).20 These facts are uncontradicted, except by conclusory
responses to leading questions, as noted below. Both Irma Rivera and Illiana
Yvonne Rivera have represented to the Department of Public Safety that their
residence is 105 ½ S. Missouri, Weslaco. (Contestant’s Ex. 41).21
As a matter of law, the uncontradicted testimony of Hortencia and Appellant
Rivera, and the public records, regarding Irma, Raul Sr., Raul, Jr., and Illiana
Yvonne Rivera is dispositive in precluding any finding that any of those
individuals meet the bodily presence element of residency. Lopez has instead
adduced evidence—DPS records, and the testimony of appellant Rivera—that the
family resides at 105 ½ S. Missouri.
20
Appellant Rivera testified as follows:
Q: And where do they [Irma & Raul Rivera] live?
A: I wouldn’t know. Missouri Street, or I really don’t know their address, sir.
Q: Okay. Just for the—did you say Missouri Street?
A: Yeah.
…
Q: …[W]hat are their children’s names?
A: Raul, Jr., Santos Rivera, and Illiana Rivera.
…
Q: Do you know where these three children live?
A: Well, I would imagine with the parents, or one of them they’re married.
(IV R.R. at 212:5-213:9).
21
This address lies in District 3, not District 5. (III R.R. at 127).
43
On cross-examination, Hortencia again admitted that Cassandra, Felipa,
Illiana Yvonne Rivera, Irma and Raul Rivera rent homes elsewhere, but testified
that her house is “the family house for the Rivera family, right? A: Yes.” (III R.R.
at 108:2-5). On re-direct, Hortencia was asked what she means by “family home.”
She responded:
A: Well, what I mean is that 10 of us were born there, and, therefore,
all of us 10, all of the 10 consider this as their home because they
were born here.”
Q: Okay. But I believe you said earlier that none of these
individuals has spoken with you about moving into the home, is
that correct?
A: Yes, because right now they have their own home, even though it’s
a rented home.
Q: Okay. And you said that sometimes Cassandra and Felipa and
Illiana Yvonne, and Irma and Raul Rivera, sometimes they get
mail at your home; is that true?
A: Yes, sometimes, not all the time.
Q: Can you remember the last time you got a piece of mail for any
of those people?
A: Well, it’s been months.
(Id. at 108:12-109:1) (emphasis added). As noted above, the “family home”
reference in response to Rivera’s counsel’s lead on cross-examination is in the
form of a legal conclusion and does not contradict the factual evidence of bodily
presence adduced by Lopez.
A review of the trial court’s discussion of the alleged nonresident voters
reveals that the trial court accorded an inordinate amount of weight—even
conclusive weight, it would appear—to the particular voter’s voter registration
44
history. (VI R.R. 29-31). While this may be an appropriate factor relevant to a
voter’s residence, at least with respect to the intent element, it cannot alone
determine domicile, and it cannot trump contrary evidence of actual bodily
presence elsewhere. The trial court’s analysis led it to the unlikely conclusion that
while clear and convincing evidence established that Irma Rivera resided outside
the district, there was not clear and convincing evidence that her husband Raul
Rivera, Sr., or her two children, did not reside at 316 W. Los Torritos, even though
direct testimony from two individuals and public records evidenced their actual
Missouri Street residence.
2. 1518 East Sixth Street
This address is the home of Domitilia and Eusebio Cadena. Mr. Cadena
testified in a deposition. Despite his claim that there are five (at most) bedrooms in
the house (III R.R. at 111), twenty-three people were registered at the time of the
contested election claiming this house as their residence (See Contestant’s Ex. 40
at LL2125-79). The trial court did not find by clear and convincing that any of
these voters do not reside there (Suppl. C.R. at 27-28).
a. Diana Pena and Valerie Jadine Pena
Diana Pena is the daughter of Eusebio and Domitilia Cadena, and Valerie
Jadine Pena is Diana’s daughter (III R.R. at 114). There is no evidence in the
record to support the finding that Diana and Valerie Pena have established bodily
45
presence at 1518 E. 6th. The testimony of Eusebio Cadena—the owner of the
home at 1518 E. 6th—precludes any finding that either of them reside at his home.
Mr. Cadena testified that Diana rents her own home (III R.R. at 114:17-19) (“I
don’t know what the address is, but she does live here in Weslaco.”), and he does
not know whether Valerie lives with her mother in the home or not (III R.R. at
114-15) (“Well, I don’t know because she is now going to school, or to college.
And I don’t know whether she is living with her or not.”). Mr. Cadena also does
not know where Valerie goes to school. (Id. at 115:20) (“I don’t know where she
goes.”). If the owner of the home is unsure where a person stays at night, or where
she attends college, then that person clearly does not stay at his house. Delma
Cadena testified that while Diana Pena and Valerie Jadine Pena consider 1518 E.
6th their residence, “right now” they live at 1722 Christian Court (V R.R. at 73).
The entirety of the record demonstrates that, as a matter of law, Diana and
Valerie Pena reside at 1722 Christian Court, Weslaco, which lies within District 2
(III R.R. at 127). Valerie Jadine Pena’s DPS record shows she lives at that address
(Contestant’s Ex. 41), and process server Angela Salinas testified that while
attempting to serve Valerie with a subpoena in this case, she left a note for Valerie
at that address, and Valerie called her back to arrange a time to accept service (III
R.R. at 79-81). Furthermore, even assuming that at some point in the past they had
established presence at 1518 E. 6th, there is no demonstrable evidence to support a
46
finding that when they left that address, they presently intended to return to their
former abode after a temporary absence. See Tovar, 994 S.W.2d at 762. Any such
claimed intent would be inconsistent with the notion that the home is intended as a
permanent residence in light of the facially suspicious number of individuals
registered to vote there, see McDuffee, 327 S.W.3d at 823. Moreover, Diana and
Valerie cannot claim to have future plans to move into the home, or any claim
superior to those of Diana’s nine siblings. (See III R.R. at 123-24) (Mr. Cadena
has ten children, all still living, but no plans for any to inherit the home.). The trial
court therefore abused its discretion in failing to find that Diana Pena and Valerie
Jadine Pena reside outside District 5.
b. Delma Cadena and her daughters
Delma Cadena is the daughter of Eusebio and Domitilia Cadena, and her
daughters are Alexia Dinah Chavez, Alyssa Domitria Chavez, and Delma Ann
Chavez. There is no evidence in the record to support the finding that Ms. Cadena
and her daughters have established bodily presence at 1518 E. 6th. Ms. Cadena
testified that she lives in a house she rents on Roosevelt Avenue, which is within
District 5 but not in the same precinct as 1518 E. 6th (V R.R. at 72, 108-09). Her
father confirmed this (III R.R. at 112). While she ‘sometimes’ will sleep or wash
her clothes at 1518 E. 6th, her day-to-day activities are at the Roosevelt house (V
R.R. at 74).
47
Ms. Cadena repeatedly emphasized that she and her daughters reside at
1518 E. 6th because that is “where our heart is” (V R.R. at 81, 82, 107). Even
assuming, arguendo, this suffices for intent, it does not establish presence at 1518
E. 6th. The trial court erred in failing to consider the presence element, basing its
finding on the fact that Ms. Cadena has consistently voted from that address (VI
R.R. at 24). The court itself noted that, with regards to Ms. Cadena’s daughters,
“[t]hey have actually spent most nights at the[] address of their mother on
Roosevelt, although, they've visited the 1518 East Sixth Street house regularly”
(Id. at 25).
Lopez recognizes that her burden with respect to these voters, since they
reside in District 5, is more onerous than with respect to the other nonresidents at
issue. (See C.R. at 85-86 (citing Tex. Elec. Code §§ 11.003-.005)). However, the
trial court erred in failing to find that Delma Cadena, Alexia Dinah Chavez, Alyssa
Domitria Chavez, and Delma Ann Chavez reside at their rental home on Roosevelt.
Because they reside there and did not update their voter registrations or complete a
Statement of Residency when they voted, their votes were illegal and the trial court
should have added those votes to the list of undetermined voters.
E. Lopez proved as a matter of law that Esteban Martinez cast an
illegal ballot for Rivera.
Despite Lopez’s request (Suppl. C.R. at 33-34), the trial court did not find
that Martinez’s ballot contained a vote for Rivera (id. at 39).
48
Where testimony is clear, direct, positive, and uncontradicted by any other
witnesses or attendant circumstances, it is taken as true as a matter of law. See
Flack v. First Nat’l Bank of Dalhart, 226 S.W.2d 628, 633 (Tex. 1950).
Mr. Martinez testified that Rivera himself completed Martinez’s ballot upon
Martinez’s instructions to vote for Rivera, and the trial court even noted that
Martinez “testified that he voted for Rivera.” (II R.R. at 204). This testimony was
uncontradicted, and there is no evidence in the record to support the trial court’s
finding that it could not determine for whom Esteban Martinez’s illegal vote was
cast. On cross-examination, Rivera’s counsel asked Mr. Martinez only whether the
signature on the carrier envelope containing his ballot was his own (Id. at 205).
Additionally, with the exception of Mr. Martinez, of all the mail ballot votes
the trial court found to both be illegal and contain votes for Rivera, either Rivera
himself or Lupe Jr. completed the ballots for the voter (VI R.R. at 9-10).22 In
contrast, of all the mail ballot votes the trial court found to be illegal but could not
determine for whom the votes were cast, someone other than Rivera or Lupe Jr.
completed the ballots for the voter (VI R.R. at 11-12).23 This Court should modify
22
Those voters were: Marlen Martinez (II R.R. at 131-39), Andres Martinez (II R.R. at 139-48),
Leonor Hinojosa (III R.R. at 32-40), Leocadia Ledesma (II R.R. at 148-58), David Lopez (II
R.R. at 189-96), Emma Oviedo (III R.R. at 105-14), Noe Saldana (II R.R. at 185-89), Ruth
Saldana (II R.R. at 172-85), Antonia Zepeda (III R.R. at 125-29), and Maria Berrones (IV R.R. at
47-60).
23
Those voters were: Arnulfo Gonzalez (III R.R. at 27-32), Maria Garza Mendez (III R.R. at 97-
104), Francisca Pina (III R.R. at 119-21), Liborio Pina (III R.R. at 121-22), and Pedro Zepeda
(III R.R. at 130-34).
49
the judgment, deducting the vote of Esteban Martinez from Rivera’s final vote
count.
III. The Trial Court Abused its Discretion by Deducting Certain Illegal
Votes From Lopez’s Final Vote Count, Because There is Insufficient
Evidence to Support the Finding That Those Votes Were Cast for
Lopez.
The trial court deducted the illegal votes of Tomasa Cavazos, Jose Luis
Martinez, Sr. (“Jose Sr.”), and Jose Luis Martinez, Jr. (“Jose Jr.”) from Lopez’s
final vote count. The court abused its discretion in finding that these illegal votes
were cast for Lopez because it erred in its application of discretion such that the
finding is so arbitrary and unreasonable that it rises to the level of clear and
prejudicial error of law.
A. Factual sufficiency review of issues upon which appellant did
not have the burden of proof at trial.
While Lopez had the burden to prove illegal votes were counted, she did not
have the burden at trial to prove that any illegal votes were cast for herself. Rivera
had that burden. In reviewing the factual sufficiency of an adverse finding on an
issue for which the appellant did not have the burden of proof at trial, an appellate
court considers all of the evidence, including evidence contrary to the finding, and
sets aside the finding only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. See Croucher v. Croucher, 660
S.W.2d 55, 58 (Tex. 1983); Reese v. Duncan, 80 S.W.3d 650, 655 (Tex. App.–
50
Dallas 2002, pet. denied). The court may conclude that a finding is against the
overwhelming weight of the evidence even if the record contains some evidence to
support the finding. In re King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951).
B. The confidential nature of the electoral process requires
heightened review of suspicious and biased voter testimony.
As this Court has noted, by the confidential nature of the electoral process,
only the voter knows how she actually voted, and her assertions are not readily
controverted if untrue. Medrano v. Gleinser, 769 S.W.2d 687, 689-90 (Tex. App.–
Corpus Christi 1989, no writ). While a trial court functioning as factfinder is the
sole judge of the credibility of witnesses, the clear and convincing standard of
proof in election contests requires an appellate court conducting a factual
sufficiency review to take into consideration whether the evidence is strong enough
that the factfinder could reasonably have formed a firm belief or conviction about
the truth of the matters asserted by the the party with the burden of proof. See In re
J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002);
Medrano, 769 S.W.2d at 689.
A reviewing court should therefore take into careful consideration the
likelihood that a voter who has been proven to have intentionally cast an illegal
vote will testify that she voted for the candidate who challenged her vote,
especially where that voter has a close relationship with the opposing candidate.
Such a voter should not be presumed to have lied about how she cast her vote, but
51
when she has otherwise shown blatant disregard for the truth and integrity of the
electoral process, her statements regarding how she voted cannot be the basis for a
firm belief or conviction that she voted in the way she testified.
C. The record shows that basing any finding on the testimony of
Tomasa Cavazos is clear error.
No reasonable factfinder could form a firm belief or conviction that Tomasa
Cavazos cast a vote for Lopez. Ms. Cavazos’s vote was one of the three votes
deducted from Lopez’s final vote count. Each of these three votes was cast by a
member of a single family with close ties to Rivera. At the top of this family sits
Margarito Martinez, Rivera’s close friend and across-the-street neighbor of fifty
years (VI R.R. at 14). He is the father of Ms. Cavazos (VI R.R. at 14) and Mary
Lou Garcia (III R.R. at 206). Mary Lou Garcia is the owner of the home at 608
North Tio Street, where the other two votes deducted from Lopez were cast by
Margarito’s brother and nephew, Jose Sr. and Jose Jr. (II R.R. at 25, 28). This is a
very united, close-knit family (II R.R. at 44) that, Tomasa admitted, supported
Rivera (V R.R. at 42:7-21).
Tomasa Cavazos actually lives with her husband outside the limits of all
Weslaco city commission districts (VI R.R. at 19), but she registered to vote at her
father’s residence across the street from Rivera (V R.R. at 37). Michelle
Carpenter—best friend of Ms. Cavazos’ recently-deceased daughter Crystal—
testified on the first day of trial that Ms. Cavazos lives at 5617 FM 88 (II R.R. 77),
52
which was confirmed by Ms. Cavazos’s uncle that same day (II R.R. at 62). By the
time she testified, there was overwhelming evidence that Ms. Cavazos resides
outside District 5.
Tomasa Cavazos’ entire testimony is incredible. She appeared at the
courthouse on the fourth day of trial without having been subpoenaed, claiming she
had not even been asked to testify and was there completely voluntarily (V R.R. at
60). She stated that the only time she had ever spoken with Rivera’s counsel was
right before she took the stand, to briefly ask if he was the person she was
“supposed to talk to” if she wanted to testify (V R.R. at 60-61). Rivera put her on
the stand, supposedly without knowledge of any of the substance of what she
wanted to say and without having expressed any previous desire to call her to
testify. While the record contains no evidence that Rivera is a gambling man, he
might want to consider taking it up, because he hit the jackpot with Tomasa
Cavazos.
Rivera questioned Ms. Cavazos in a way that at first glance seemed to
defend against Lopez’s attacks against her residency, and Ms. Cavazos vehemently
asserted that her true residence is in fact the house across the street from her
father’s best friend of fifty years (V R.R. at 37-39).24 However, despite the fact
24
A review of the deposition of Margarito Martinez not only provides some comic relief, but
reveals direct contradictions between his testimony and that of Tomasa Cavazos. Both claimed
repeatedly that Mr. and Mrs. Cavazos reside at 717 N. Padre, but the trial court was unpersuaded.
53
that Lopez had already presented ample testimony that Ms. Cavazos does not
actually reside there, Rivera asked her how she voted (V R.R. at 43). If it was
Rivera’s honest contention that Ms. Cavazos indeed resided at 717 North Padre,
then the question of how she voted would be unnecessary. It was not his burden to
prove how a voter voted if he contended that vote was legal. In fact, unless he
knew her answer in advance, asking her that question could have proven fatal to
his case.
Ms. Cavazos knew exactly what she was doing. She knew that her vote was
going to be thrown out. She proved her blatant disregard for the truth and the
integrity of the electoral process merely by voting as a nonresident of the district,
and then again on the stand. She put on a good show, coyly demurring when first
questioned about how she voted, then immediately switching to a confident
declaration that she voted for Lopez (V R.R. at 43). Despite the fact that she
volunteered to testify, she expressed anger that she was being forced to come to
court and say how she voted (V R.R. at 44).
The trial court determined that Ms. Cavazos’ testimony regarding her
residence was untrue, throwing out her vote (VI R.R. at 19). While this meant that
the court disbelieved every material factual contention she made other than how
she voted, the court nevertheless credited the one statement that she made to insure
against Rivera’s loss. Allowing Tomasa Cavazos first to subvert the law by voting
54
illegally and then by crediting her self-interested testimony to mitigate the effects
of that illegal vote is manifestly unjust. It was so arbitrary and unreasonable that it
rose to clear error.
D. The record shows that basing any finding on the testimony of
Jose Jr. and Jose Sr. is clear error.
Jose Jr. and his father live in Mercedes but voted in the Weslaco District 5
race anyway (VI R.R. at 17). They claimed residence at the home their cousin
Mary Lou Garcia (II R.R. at 25), who is Margarito Martinez’s daughter (III R.R. at
206). Jose Jr. readily admitted he does not reside in Weslaco but purposefully
claimed residence there (II R.R. at 29). He expressed no remorse or otherwise
indicated he knew what he did was wrong, except to express regret at having voted
for Lopez because she challenged his illegal vote (II R.R. at 29-30).
Jose Jr. volunteered his testimony that he voted for Lopez without even
being asked (II R.R. at 29). He first gave vague reasons for voting for her, such as
general statements regarding taxes and that Lopez might “do better for the city” (II
R.R. at 29), but then got more specific: Jose Jr. submitted a fraudulent voter
registration application and voted in an election in city where he does not reside in
order to reward Lopez for providing refreshments and food when his cousin died
(II R.R. at 29).
Both Jose Jr.’s and Jose Sr.’s cross-examinations by Rivera’s counsel shows
they intended their testimony to serve Rivera’s interests. Each agreed with every
55
single leading question posed to him (II R.R. at 33-36, 43-47, 59-61, 63-65), even
when those questions contradicted their direct testimony (Compare II R.R. at 37,
with II R.R. at 45-46) (Jose Jr. discussing Tomasa Cavazos’s address). This
allowed Rivera to introduce evidence that insulated himself from the actual
instances of fraud Lopez proved won him the election. Like their cousin Tomasa,
they knew they were safe from impeachment regarding how they voted.
This court should reverse the trial court’s finding that Tomasa Cavazos, Jose
Luis Martinez, Jr. and Jose Luis Martinez Sr. voted for Lopez, adding those votes
back to Lopez’s total, and place those three votes in the illegal but undetermined
category.
IV. The Trial Court Abused Its Discretion by Subtracting Four
Undervotes, Rather Than One, From the Total of Illegal but
Undetermined Votes Cast In This Contest.
To ensure that all the ballots the trial court found to be illegal actually
contained a vote in the District 5 race, the court subtracted four ballots cast by
District 5 voters from the total of eleven undetermined illegal votes.25 (Suppl. C.R.
at 31). For two of those subtractions, however, there was no evidence to support
the trial court’s finding. It was clear and prejudicial error to subtract four votes
25
See discussion, supra at note 1.
56
instead of (at most) two. This issue is properly presented on appeal. (C.R. at 188;
Suppl. C.R. at 37, 39).26
The canvass report reflects that among all the ballots cast by District 5 voters
in November 2013, there were four ballots that did not contain a vote for either
candidate in the District 5 race (that is, four “undervotes” in the contested
election). (Contestant’s Ex. 18). However, all 170 ballots cast from District 5
voters by mail contained a vote in the District 5 race. See id. (discussed at C.R.
188 n.1). That is, there were no undervotes in the ballots by mail. Consequently,
the evidence establishes that the seven illegal but undetermined ballots cast by mail
contained a vote in the District 5 race, although the evidence does not reveal for
whom that vote was cast.27 The four undervotes reflected in the canvass report all
came from ballots cast in person, either early or on Election Day.
District 5 is comprised of only three precincts: 57, 112 and 186. The
canvass report shows that the undervotes were as follows:
 Precinct 57: one (1) undervote (cast early in person)
 Precinct 112: two (2) undervotes (one was cast early in person and
one was cast on Election Day in person)
26
Lopez argued below that the court improperly subtracted the Precinct 57 undervote, pointing
out that none of the residency challenges were to Precinct 57 voters. Upon further analysis,
when one removes the seven undetermined ballots by mail, and recognizes that the remaining
four undetermined but illegal votes all originate from Precinct 112, it is clear that the canvass
report compels the conclusion urged here—that at most two undervotes should be subtracted
from the eleven undetermined illegal votes found below. It is appropriate to raise this issue on
appeal because the evidence supporting this conclusion is in the record and uncontradicted.
27
(Suppl. C.R. at 25 ¶4).
57
 Precinct 186: one (1) undervote (cast early in person)
(Contestant’s Ex. 18).
Since the evidence reveals that all ballots by mail contained votes in the
contested race, the undervotes reflected in the canvass report cannot be among the
ballots that were cast by mail; if anything, they can only be among the ballots
challenged by Lopez on the basis of residency.28 Setting aside the seven ballots by
mail (since there are no undervotes among them), there are only four other ballots
the trial court found to be illegal but with undetermined votes: those of Noe
Cavazos, Felipa Cuellar, Cassandra Alaniz, and Irma Rivera. (VI R.R. at 19, 27-
29). All of these voters were registered in Precinct 112. (Contestant’s Ex. 19
(documents Bates-labeled LL218 (combination form reflecting Noe Cavazos’s
vote); LL181 (Felipa Cuellar); LL215 (Irma Rivera); LL322 (Cassandra Alaniz)));
see also (Contestant’s Ex. 37 (spreadsheet reflecting voter information)).
Moreover, all of them voted early, not on Election Day. Id. Given the close
familial relationships and other suspicious circumstances (Felipa’s, Cassandra’s
and Irma’s applications to register at 316 W. Los Torritos were only signed Sept. 5,
28
Of the five residential addresses from which Lopez alleges nonresidents voted, four are in
Precinct 112 (316 W. Los Torritos; 716 N. Padre; 717 N. Padre; 608 N. Tio) and one is in
Precinct 186 (1518 E. 6th St.). (See, e.g., Contestant’s Ex. 19 at LL178 (Lupe Jr.); LL181
(Felipa Cuellar); LL218 (Noe Cavazos); LL491 (Jose Luis Martinez, Sr.); LL176 (Delma
Cadena)).
58
2013),29 it is almost certain that each of these voters cast a vote for Appellant
Rivera. However, setting that aside, the canvass report conclusively establishes
that of these four voters’ ballots, there could only have been one that did not
contain a vote in the contested race.
There was, therefore, no evidence to support the trial court’s finding that
three undervotes could be among the eleven undetermined illegal votes.
Consequently, there can at most be one undervote among the undetermined and
uncountable ballots at issue in this case. The trial court abused its discretion by
subtracting the three additional votes.
PRAYER
For all the foregoing reasons, the trial court erred in its final judgment.
Lopez hereby requests that this Court reverse the erroneous findings identified
above and enter and/or render judgment consistent with the foregoing arguments.
The final vote count, after adjusting for the errors of the trial court, should be 47130
votes for Leticia Lopez and 46831 votes for Guadalupe Rivera, with 22
undetermined voters, and a proper accounting for any undervotes that could
29
(Contestant’s Ex. 40) (voter registration records).
30
Adding back Tomasa Cavazos, Jose Luis Martinez, Sr., and Jose Luis Martinez, Jr. to her total.
31
Deducting Esteban Martinez (previously illegal but undetermined), Lupe Rivera, Jr., and
Illiana Guerrero.
59
potentially be among the specific ballots in the undetermined category, as outlined
above.32
CERTIFICATE OF COMPLIANCE
Based on the word count provided by the computer program used to prepare
this petition, below-signed counsel states that the number of words in the document
is 14,970.
Respectfully submitted,
_________________________
Jerad Wayne Najvar
Texas Bar No. 24068079
NAJVAR LAW FIRM
4151 Southwest Freeway, Suite 625
Houston, TX 77027
281.404.4696 phone
281.582.4138 fax
jerad@najvarlaw.com
Counsel for Appellee/Cross-Appellant
LETICIA “LETTY” LOPEZ
32
The previous total of 11, less Esteban Martinez (now deducted from Rivera’s total), plus
Tomasa Cavazos, Jose Luis Martinez Jr. & Sr., plus nine (9) additional invalid votes (Raul
Rivera Sr. & Jr., Illiana Yvonne Rivera, Delma Cadena, Alexia, Alyssa, and Delma Chavez,
Diana Pena, and Valerie Jadine Pena).
60
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this BRIEF OF CROSS-
APPELLANT has been served by eService on the following counsel of record on
December 29, 2014.
Gilberto Hinojosa
622 E. St. Charles St
Brownsville, TX 78520
Counsel for Appellant/Cross-Appellee
GUADALUPE “LUPE” RIVERA
_________________________
61
APPENDIX
A
240
241
APPENDIX
B
22
23
24
25
26
27
28
29
30
31
32
APPENDIX
C
§ 1.015. Residence, TX ELECTION § 1.015
Vernon's Texas Statutes and Codes Annotated
Election Code (Refs & Annos)
Title 1. Introductory Provisions
Chapter 1. General Provisions (Refs & Annos)
V.T.C.A., Election Code § 1.015
§ 1.015. Residence
Currentness
(a) In this code, “residence” means domicile, that is, one's home and fixed place of habitation to which one intends to return
after any temporary absence.
(b) Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except
as otherwise provided by this code.
(c) A person does not lose the person's residence by leaving the person's home to go to another place for temporary purposes only.
(d) A person does not acquire a residence in a place to which the person has come for temporary purposes only and without
the intention of making that place the person's home.
(e) A person who is an inmate in a penal institution or who is an involuntary inmate in a hospital or eleemosynary institution
does not, while an inmate, acquire residence at the place where the institution is located.
Credits
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 864, § 4, eff. Sept. 1, 1997.
Notes of Decisions (141)
V. T. C. A., Election Code § 1.015, TX ELECTION § 1.015
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1
APPENDIX
D
§ 11.001. Eligibility to Vote, TX ELECTION § 11.001
Vernon's Texas Statutes and Codes Annotated
Election Code (Refs & Annos)
Title 2. Voter Qualifications and Registration
Chapter 11. Qualifications and Requirements for Voting (Refs & Annos)
V.T.C.A., Election Code § 11.001
§ 11.001. Eligibility to Vote
Effective: September 1, 2005
Currentness
(a) Except as otherwise provided by law, to be eligible to vote in an election in this state, a person must:
(1) be a qualified voter as defined by Section 11.002 on the day the person offers to vote;
(2) be a resident of the territory covered by the election for the office or measure on which the person desires to vote; and
(3) satisfy all other requirements for voting prescribed by law for the particular election.
(b) For a person who resides on property located in more than one territory described by Subsection (a)(2), the person shall
choose in which territory the residence of the person is located.
Credits
Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986. Amended by Acts 2005, 79th Leg., ch. 1107, § 1.06, eff. Sept. 1, 2005.
Notes of Decisions (41)
V. T. C. A., Election Code § 11.001, TX ELECTION § 11.001
Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1