Lupe Rivera v. Leticia \"Letty\" Lopez ( 2015 )

ACCEPTED
13-14-00581-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
1/5/2015 8:52:04 PM
DORIAN RAMIREZ
CLERK
NO. 13-14-00581-CV
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALSCORPUS
FOR THECHRISTI/EDINBURG, TEXAS
1/5/2015 8:52:04 PM
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
DORIAN E. RAMIREZ
AT CORPUS CHRISTI - EDINBURG, TEXAS Clerk
__________________________________________________________________
GUADALUPE RIVERA
APPELLANT
VS.
LETICIA LOPEZ
APPELLEE
______________________________________________________________________________
NO. C-6914-13-G
ON APPEAL FROM THE 370TH DISTRICT COURT, HIDALGO COUNTY, TEXAS,
THE HONORABLE MENTON MURRAY, JR., JUDGE PRESIDING
_____________________________________________________________________________________
CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S BRIEF
_____________________________________________________________________________________
Gilberto Hinojosa
LAW OFFICE OF GILBERTO
HINOJOSA & ASSOCIATES, P.C.
622 E. St. Charles St.
Brownsville, Texas 78520
Tel. (956)544-4218
Fax (956) 544-1335
Attorney for Appellant
CERTIFICATE OF PARTIES AND COUNSEL
The names of the parties and their respective attorneys in these proceedings are as
follows:
Appellant: Lupe Rivera
Attorneys for Appellant : Gilberto Hinojosa
LAW OFFICE OF GILBERTO
HINOJOSA & ASSOCIATES,
P.C.
622 E. St. Charles St.
Brownsville, Texas 78520
Tel. (956)544-4218
Fax (956) 544-1335
Attorney for Appellant
Appellee: Leticia Lopez
Attorneys for Appellee: Jerad Wayne Najvar
NAJVAR LAW FIRM
4151 Southwest Freeway,
Suite 625
Houston, TX 77027
Tel. (281) 404-4696
Cell: (281) 684-1227
ii
TABLE OF CONTENTS
Certificate of Parties and Counsel ........................................................................ii
Table of Contents ...................................................................................................iii
Index of Authorities ..............................................................................................iv
Statutes....................................................................................................................iv
I. Statement of Facts ..........................................................................................1
II. Summary of the Argument.............................................................................2
III. Arguments and Authorities ............................................................................5
A. Cross Appellee’s Response To Cross - Appellant’s Issue No. 1a and 3.....5
B. Cross - Appellee’s Response to Cross - Appellant’s Issue No. 1b............28
C. Cross - Appellee’s Response to Cross - Appellant’s Issue No.2 ..............31
D. Cross - Appellee’s Reply to Cross - Appellant’s Issue No 4.....................33
IV. Conclusion....................................................................................................35
iii
INDEX OF AUTHORITIES
CASES
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983)...........................................29
Fields v. E. E. Cotton, 383 S.W.2d 84 (Civ.App.-Houston - 1964, no writ)..........6,7
Flores v. Fourth Court of Appeals,777 SW 2d. 38, 41-41, (Texas 1989).........26,31
Gonzalez v. Villarreal, 251 S.W.3d 763, 775-76 (Tex.App.-Corpus Christi 2008,
pet. dism’d)....................................................................................10,13,17,27,29,31
In Re Peacock, 2014 WL 316708 (Tex.App.-Tyler 2014)...................................6,22
Johnson v. Ventling, 2013 WL 6730043 (Tex. App. Corpus Christi 2013).......26,31
Miller v. Hill, 698 S.W.2d 372, 375 (Tex.App.-Houston [14th Dist.]
1985...............................................................................................................13,18,24
Mills v. Bartlett, 377 S.W.3d 636, 637 (Tex. 1964).....................................,6,7,11,20
Royalty v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-Houston 1967, writ ref’d.
n.r.e.)...................................................................7,10,11,12,13,15,16,17,21,24,27,29
Simmons v. Jones, 838 S.W.2d 298, 301 (Tex.App.-El Paso)...............................6,7
Solis v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-San Antonio 1954, pet.
ref’d).............................................................7,10,11,12,13,15,16,17,21,24,27,29, 31
STATUTES
Texas Elections Code Section 1.015.................................................................10,11
Texas Elections Code Section 11.005...............................................................14,20
OPINIONS
Texas Attorney General Opinion, No GA-1041, February 4, 2004...................15
iv
NO. 13-14-00581-CV
IN THE COURT OF APPEALS FOR THE
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
AT CORPUS CHRISTI - EDINBURG, TEXAS
__________________________________________________________________
GUADALUPE RIVERA
APPELLANT
VS.
LETICIA LOPEZ
APPELLEE
______________________________________________________________________________
NO. C-6914-13-G
ON APPEAL FROM THE 370TH DISTRICT COURT, HIDALGO
COUNTY, TEXAS, THE HONORABLE MENTON MURRAY, JR., JUDGE
PRESIDING
___________________________________________________________________________________
CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S BRIEF
_____________________________________________________________________________________
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
NOW COME, GUADALUPE RIVERA, Cross-Appellee in the above
styled and numbered cause, and presents this his Response to Cross-Appellant’s
Brief:
I.
STATEMENT OF FACTS
Cross-Appellee’s Statement of Facts is set out in Appellant’s Brief. On
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numerous occasions throughout it’s brief, Cross-Appellant misrepresents to this
Court the findings of fact made by the trial court on the court’s rulings challenged
by Cross-Appellant in the cross-appeal. The trial court made specific Findings of
Fact and Conclusions of Law in support of its rulings in this case. Court’s
Findings of Fact and Conclusions of Law, Supp CR 24-32. Cross-Appellant filed
additional proposed findings of fact and conclusions of law which the trial court
declined to enter. Contestant’s Request for Additional and Amended Findings of
Fact and Conclusions of Law, Supp CR 33-38; and Trial Judge Email, Supp CR
39. Therefore, only those specific findings of fact and conclusions of law entered
by the trial court is what must guide this Court in determining no evidence and
sufficiency of the evidence points of error made by Cross-Appellant. Cross-
Appellee will address each of those misrepresentations of the trial court’s finds
made by Cross-Appellant at each response to each Issue brought Cross-Appellant.
II.
SUMMARY OF THE ARGUMENT
The trial court did not commit error in overruling Cross-Appellant’s
residency challenge to Illiana Guerrero, and Guadalupe Rivera, Jr.in that Cross-
Appellant failed to prove by clear and convincing evidence that said voters did not
reside in District 5 of the Weslaco City Commission. There was more than
sufficient evidence offered at trial to show that both Illiana Guerrero, and her
husband, Guadalupe Rivera, Jr., had a present intention to reside at Mr. Rivera’s
2
childhood home and the trial court was within its discretion in finding that Cross-
Appellant failed to meet her burden to show the negative of these voters’
intentions.
With respect to voter, Esteban Martinez, the trial court did not commit error
in failing to find by clear and convincing evidence that Martinez voted for Rivera
in the District 5 race in that the trial court was within its discretion to chose to not
believe that part of the testimony of Mr. Martinez. Given that Martinez was called
twice to testify in this case by Cross-Appellant and that much of his testimony was
incredible, the trial court’s findings were not error as a matter of law.
The trial court did not commit error in 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 clear and convincing evidence to support the
finding that they did not reside in District 5 of the Weslaco City Commission and
voted for Leticia Lopez. The Martinez’ were subpoenaed and called by Cross-
Appellant and the reasons given by the Martinez’ for voting for Cross-Appellant
were legitimate and reasonable under the circumstances, i.e. that Cross-Appellant
had come to the family’s assistance at the time of the death of their close relative.
The same with Mrs. Cavazos. She likewise testified that Cross-Appellant had
helped her during her time of need, i.e. the tragic death of her daughter.
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The trial court did not commit error in overruling Cross-Appellant’s
residency challenge to 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. in that Cross-Appellant failed to
prove by clear and convincing evidence that said voters did not reside in District 5
of the Weslaco City Commission. None of these voters were subpoenaed or called
to testify at trial by Cross-Appellant. Only Delma Cadena testified and she was
called by Cross-Appellee. The testimony of Ms. Cadena, as well as Hortencia
Cuellar, was that the place of registration was their family home and their
residence and it had been for many years. Cross-Appellant’s evidence to the
contrary was minimal and not enough to meet their clear and convincing burden of
proof required to overcome the presumption that the residence of the voters was at
the location where they were registered.
Finally, the trial court did not commit error in deducting four undervotes,
rather than one from the total number of illegal but undetermined votes cast in the
election because Cross-Appellant failed to prove by clear and convincing evidence
that said undetermined voters were not among the undercounted undetermined
voters. The trial court was asked to make a finding that only one or two votes
should be deducted from the total number of undetermined votes based upon the
alleged undercount and it declined to do so. Given the scant evidence that the
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Cross-Appellant offered on this issue, the trial court was well within its discretion
to find that it would only deduct four votes from the undetermined votes as a result
of the undercount.
III.
ARGUMENTS AND AUTHORITIES
A. CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S ISSUE
NO. 1a and 3.
The trial court did not commit error in overruling Cross-Appellant’s residency
challenge to Illiana Guerrero, and Guadalupe Rivera, Jr. in that Cross-Appellant
failed to prove by clear and convincing evidence that said voters did not reside in
District 5 of the Weslaco City Commission.
The trial court did not commit error in overruling Cross-Appellant’s residency
challenge to 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. in that Cross-Appellant failed to prove by
clear and convincing evidence that said voters did not reside in District 5 of the
Weslaco City Commission.
1. Residence under Texas Elections Law
Section 1.015, of the Texas Elections Code defines Residence 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.
(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.
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(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 Section 1.015
The Texas Supreme Court established the standard by which residence will
be determined:
“The term ‘residence’ is an elastic one and is extremely difficult to define.
The meaning that must be given to it depends upon the circumstances
surrounding the person involved and largely depends upon the present
intention of the individual. Volition, intention and action are all elements
to be considered in determining where a person resides and such
elements are equally pertinent in denoting the permanent residence or
domicile.
** *
. . .Neither bodily presence alone nor intention will suffice to create the
residence but when the two coincide at that moment the residence is fixed
and determined. There is no specific length of time for the bodily
presence to continue.
Mills v. Bartlett, 377 S.W.3d 636, 637 (Tex. 1964).
Courts have long held that even prolonged absences from the declared
residence do not prevent a person from legally establishing that location for
residency purposes, as long as there is an intention to eventually return to the
declared residence. Fields v. E. E. Cotton, 383 S.W.2d 84 (Civ.App.-Houston -
1964, no writ); Simmons v. Jones, 838 S.W.2d 298, 301 (Tex.App.-El Paso).
Evidence such as a current declared homestead exemption in another county is not
enough to destroy residency in the county where a voter or candidate is declaring
his/her residency. In Re Peacock, 2014 WL 316708 (Tex.App.-Tyler 2014).
6
Evidence such as where a person receives his mail is a factor in determining the
residence of a voter. Fields v. E. E. Cotton, supra.
Finally, and most importantly in this case, the contestant has the burden of
proving by clear and convincing evidence the negative of every theory on which
the vote could have been legal. Royalty v. Nicholson, 411 S.W.2d 565
(Tex.Civ.App.-Houston 1967, writ ref’d. n.r.e.); Solis v. Martinez, 264 S.W.2d 956
(Tex.Civ.App.-San Antonio 1954, pet. ref’d). In this case, that required Cross-
Appellant Lopez to offer clear convincing proof that the challenged voter did not
have the present intention of residing at the place where he/she was registered to
vote or did not have the intention of eventually returning to the residence where
he/she was registered to vote after a temporary or prolonged absence. In other
words, under the Texas law a voter can still have the “present intention” to have a
certain address as his/her residence, Mills v. Bartlett, 377 S.W.3d 636, 637 (Tex.
1964), even if there is evidence that person has been living or sleeping in another
location. Fields v. E. E. Cotton, 383 S.W.2d 84 (Civ.App.-Houston - 1964, no
writ); Simmons v. Jones, 838 S.W.2d 298, 301 (Tex.App.-El Paso 1992). Under
that circumstance, if a voter registered in a certain location temporarily resides in
another location, his/her vote is legal. To overcome that presumption, Simmons v.
Jones, 838 S.W.2d 298, 301 (Tex.App.-El Paso 1992), Cross-Appellant Lopez
needed to offer clear and convincing proof of the negative of that theory that a
person’s vote was otherwise legal, i.e. in this case, that in fact the voter had no
7
intention of returning to his permanent residence after a temporary or prolonged
absence.
2. Cross-Appellant Lopez failed to meet her burden to show by clear and
convincing evidence that Illiana Annette Guerrero’s vote should be
invalidated because allegedly she was not a resident of District 5 at the time of
the election in question.
Illiana Annette Guerrero testified that she is married to Lupe Rivera, Jr.
Deposition of Illiana Annette Guerrero, RR3 p 247, line 9-11. She stated that she
lives with him in a rented house and that they are living in the house that they rent
“just in the meantime.” Id at p 248, line 11-17. She testified that when she
registered to vote she mistakenly listed the 316 West Lost Toritos address, rather
than her true residence and address, 716 North Padre. Id at p 251, line 6-15. She
testified that “[b]ecause we don’t plan to live at 700 East 8th for a very long time,
and [Lupe Rivera, Jr. is her] husband, and [she is] going to use the address that he
uses. We can’t just have different addresses on legal documents.” Id at line 16-21.
She testified that the reason that she accidentally used the Torritos street address
was because “there’s times where my children are dropped off when we’re here at
this [Torritos] address, and their dad has to drop them off by a certain time, and
we’re hanging out there having dinner, so I’ll text him this address [ Torritos] to
have them there, and I mean, that address just stuck, and it’s the address I put on.”
Id at p253, line 17-24.
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Illiana Annette Guerrero testified that her “residence is the residence of [her]
husband” and that residence is “716 North Padre Street, Weslaco,.” Id at p 277,
line 13-18. She further testified that “when [she] voted in this election, [she was]
voting in the precinct that [she lived] in.” Id at line 19-21. She testified that she
had been married before and that when she was married before she considered her
residence her then husband’s residence. Id at p 276, line 7-16. She considered her
home where her heart is and her heart was with her husband. Id at p 279, line 9-11.
Section 11.005 of the Texas Elections Code provides:
“If a voter who is erroneously registered in an election precinct in which the
voter does not reside is permitted to vote by an election officer who does
not know of the erroneous registration, the votes for the offices and
measures on which the voter would have been eligible to vote in the voter’s
precinct of residence are valid unless the voter intentionally gave false
information to procure the erroneous registration.” Tex.Elec.Code Section
11.005
Illiana Annette Guerrero’s testimony that she was married to Lupe Rivera, Jr.
was not rebutted. Her testimony was that he was a resident of 716 North Padre
Street, Weslaco, Texas - the same residence as his father, Lupe Rivera, Sr. That
residence in the same Weslaco City Commission District 5 as the residence where
she was mistakenly registered, i.e. 316 West Torritos. There was no evidence that
she “intentionally gave false information to procure the erroneous registration.”
The only evidence offered at trial was that she mistakenly wrote the wrong address
on her voter registration application. Therefore, under Section 11.005 of the Texas
9
Elections Code, Illiana Annette Guerrero’s ballot for the November 2013 election
for Weslaco City Commission, District 5 was valid. Appellant provided no
evidence, much less clear and convincing evidence, to overcome the presumption
that her ballot should be counted. Royalty v. Nicholson, 411 S.W.2d 565
(Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956
(Tex.Civ.App.-San Antonio 1954, pet. ref’d).
Reviewing all the evidence “in the light most favorable to the finding” of the
trial court that Cross-Appellant had not met her burden by clear and convincing
proof that Illiana AnnetteGuerrero was not a resident of District 5 and giving
“appropriate deference to the factfinder’s conclusions” this Court “must assume
that the [trial court] resolved disputed facts in favor of its finding” and therefore
affirm the trial court’s ruling on this Issue. Gonzalez v. Villarreal, 251 S.W.3d
763, 775-76 (Tex.App.-Corpus Christi 2008, pet. dism’d); Royalty v. Nicholson,
411 S.W.2d 565 (Tex.Civ.App.-Houston 1967, writ ref’d, n.r.e.) (Contestant in an
election contest has the burden of proving by clear and convincing evidence the
negative of every theory on which the vote could have been legal.); See also,
Solis v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-San Antonio 1954, pet. ref’d.).
3. Cross-Appellant failed to meet her burden to show by clear and convincing
evidence that Guadalupe Rivera, Jr. was not a legal resident of 716 N. Padre,
Weslaco, Texas and District 5 of the Weslaco City Commission.
Again, Cross-Appellant Lopez was required to prove by clear and
convincing evidence that in fact Guadalupe Rivera, Jr. did not have a present
10
intention of residing at 716 N. Padre, Weslaco, Texas, Mills v. Bartlett, 377 S.W.3d
636, 637 (Tex. 1964), or that he had no intention of returning to that residence after
a brief or prolonged absence. Royalty v. Nicholson, 411 S.W.2d 565
(Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956
(Tex.Civ.App.-San Antonio 1954, pet. ref’d).
At no time was Guadalupe Rivera, Jr. called to testify at the time of the trial
in this case. Master Index, Alphabetical Index of Witnesses, RR1, 10-13.
Although, Cross-Appellant makes much to do about his claim that he was not able
to serve Mr. Rivera, it is difficult to see how Cross-Appellant could have exercised
due diligence to actually accomplish service when he had at least 5 months to serve
Mr. Rivera. Mr. Rivera works full-time at the offices of Hidalgo County
Commissioner, Precinct One, which are public offices and he should have been
easy to serve.
Other than excerpts taken out of context from the deposition of Illiana
Guerrero, the only evidence Cross-Appellant offered on Guadalupe Rivera’s
supposed non-residency was the following:
As discussed before, Illiana Guerrero Rivera testified she lives with her
husband, Guadalupe Rivera, Jr. in a rented house and that they are living in the
house that they rent “just in the meantime.” Deposition of Illiana Annette
Guerrero, RR3 p 247, line 9-11. She testified that when she registered to vote she
mistakenly listed the 316 West Lost Toritos address, rather than her true residence
11
and address, 716 North Padre. Id, p 251, line 6-15. She testified that “[b]ecause
we don’t plan to live at 700 East 8th for a very long time, and [Lupe Rivera, Jr. is
her] husband, and [she is] going to use the address that he uses. We can’t just have
different addresses on legal documents.” Id, line 16-21. Illiana Annette Guerrero
also testified that her “residence is the of [her] husband” and that residence is “716
North Padre Street, Weslaco.” Id, p 277, line 13-18.
Cross-Appellee Guadalupe Rivera testified that his son, Guadalupe Rivera,
Jr. “has always considered my home his home.” Testimony of Lupe Rivera, RR4, p
200, line 13-17. He testified that Lupe, Jr. lives at 716 N. Padre “off and on.” Id.
Although “he rents a home ‘pero’ my house is where he have always considered
his - - his primary residence.” Id, line 21-24.
Cross-Appellant offered no rebuttal evidence to the testimony of Illiana
Guerrero and Cross-Appellee Rivera,, other than excerpts from the testimony of
both witnesses taken out of context. Cross-Appellant failed to provide the
necessary clear and convincing evidence necessary to rebut the presumption that
Guadalupe, Rivera, Jr.’s vote or ballot was valid. Royalty v. Nicholson, 411 S.W.2d
565 (Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d
956 (Tex.Civ.App.-San Antonio 1954, pet. ref’d).
Reviewing all the evidence “in the light most favorable to the finding” of the
trial court that Cross-Appellant had not met her burden by clear and convincing
proof that Guadalupe Rivera, Jr. was not a resident of District 5 and giving
12
“appropriate deference to the factfinder’s conclusions” this Court “must assume
that the [trial court] resolved disputed facts in favor of its finding” and therefore
affirm the trial court’s ruling on this Issue. Gonzalez v. Villarreal, supra; Royalty
v. Nicholson, supra; See also, Solis v. Martinez, supra.
4. Cross-Appellant offered no evidence that Guadalupe Rivera, Jr. voted in
the election being contested.
Additionally, Cross-Appellant failed to offer any proof that Guadalupe
Rivera, Jr. in fact voted in the election being contested. Therefore, as a matter of
law Cross-Appellant failed to meet her burden that this challenged voter voted in
the election being contested and this Court must affirm the trial court’s decision to
overrule Cross-Appellant’s challenge to Guadalupe Rivera, Jr. 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).
5. Cross-Appellant has failed to meet her burden to show by clear and
convincing evidence that the following voters were not legal residents of 1518
E. 6th St., Weslaco, Texas, and District 5 of the Weslaco City Commission: (a)
Delma Cadena, (b) Alexia Dinah Chavez, (c) Alyssa Domitria Chavez, (d)
Delma Ann Chavez, (e) Diana Pena, and (f) Valerie Jadine Pena.
Cross-Appellant Lopez did not call any of these challenged voters to testify,
in in person or by deposition. Master Index, Alphabetical Index of Witnesses,
RR1, 10-13. The only person called was Delma Cadena and she was subpoenaed
and called by Cross-Appellee Rivera. The following was the evidence at trial
which the trial court based its finding that Cross-Appellant had failed to meet her
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burden by clear and convincing evidence that these challenged voters were not
residence of District 5:
(a) Delma Cadena - She testified that the only residence that she had ever
had was the residence at 1518 E. 6th St. RR5, p 67, line 12-25. She testified that
she had always considered 1518 E. 6th her permanent residence. Id, p 81, line
9-12. She testified that she and her daughters considered 1518 E. 6th St. their
residence because that is where their “heart is.” “That’s their home. That’s our
home.” Id, p 81, line 18- p 82, line 12. She testified that she had never owned
property and that she had always rented. She testified that she had been registered
to vote at the residence at 1518 E. 6th St. Id, line 18--20. She testified that she kept
clothes there and furniture. She testifies that she sometimes sleeps there and that
she cares for her sick elderly parents there at the residence, 1518 E. 6th St. She
also testified that her daughters often sleep there on occasions because they too
consider it their home. She testified that she had never declared a residence
anywhere else - her entire life. Id, p 67, line 19-25; p 68, line 13-15. She testified
that she had been a candidate against Lupe Rivera in the election for City
Commissioner, District 5 in the prior election. Id, p 77, line 25- p 78, line 12. She
testified that her drivers license listed her address as 1518 E. 6th St. Id, p 78, line
20-21.
Mrs Cadena also provided testimony that the house that she currently rents is
located in the same Weslaco City Commission District 5 as the residence where she
14
she is registered to vote. RR5, p 89, line 1-8; p 90, line 8-15. There was no
evidence that she “intentionally” gave false information to procure the erroneous
registration. The only evidence offered at trial was that she believes that her true
permanent residence is at 1518 E. 6th St. . Therefore, under Section 11.005 of the
Texas Elections Code, Delma Cadena’s ballot for the November 2013 election for
Weslaco City Commission, District 5 was valid. Tex.Elec.Code Section 11.005.
Cross-Appellant has provided no evidence, much less clear and convincing
evidence, to overcome the presumption that her ballot should be counted. Royalty
v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis
v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-San Antonio 1954, pet. ref’d).
(b) Alexia Dinah Chavez; (c) Alyssa Domitria Chavez; and (d) Delma Ann
Chavez - Since Delma Cadena testified that all of her daughters reside with
her, the same testimony provided by Delma Cadena described above supports
Cross-Appellee’s argument that Cross-Appellant has failed to meet her burden
by clear and convincing evidence to overcome the presumption that the votes or
ballots of Alexia Dinah Chavez, Alyssa Domitria Chavez and Delma Ann
Chavez votes are valid. Additionally, Delma Cadena’s testified that the reason
that DPS records show that Alexia Dinah Chavez’ address was 910 Fasken
Boulevard, Laredo, Texas, was because she was a student in Laredo at that
time, but that her daughter’s permanent residence has always been with her.
RR5, p 71, line 10- p 72, line 8. See Attorney General Opinion No. GA-0141,
15
February 4, 2004 (“[O]ne student who is living in a dormitory, and is therefore
physically present for purposes of voter registration, yet who intends his residence
to remain the same as that of his parents, can permissibly register to vote in the
county of his parent’s residence.”). Again, Cross-Appellant has provided no
evidence, much less clear and convincing evidence, to overcome the presumption
that their ballots should be counted. Royalty v. Nicholson, 411 S.W.2d 565
(Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956
(Tex.Civ.App.-San Antonio 1954, pet. ref’d).
(e) Diana Pena and (f) Valerie Pena - As discussed above, Eusebio Cadena
testified that the 1518 E. 6th St. address is the home and residence of all of his
daughters. Deposition of Eusebio Cadena, RR 3, p 110, line 15- 21; p 111, line
2-6. Delma Cadena also testified that, although Diana Pena and Valerie Jadine
Pena, rent at a location on Christian Court, their residence is the 1518 E. 6th Street
address. Testimony of Delma Cadena, RR5, p 73, line 6-19. She also testified that
her and her sisters, brothers, nieces and nephews take turns taking care of their
parents. Id, p 75, line 9-13.
The only evidence offered by Cross-Appellant was a DPS record showing an
address for Valerie Pena at 1722 Christian Ct., the testimony of a process server
who testified that he found Diana Pena at the address located at 1722 Christian Ct.
and a suggestion that Diana’s elderly and sick father should have known where
Valerie went to school. Again, there was no evidence provided by Cross-Appellant
16
that showed that Diana Pena and her daughter, Valerie, had a residence any where
other than 1518 E. 6th, at least not any clear and convincing evidence that they had
a present intention of having a residence anywhere else.
Therefore, Cross-Appellant failed to provide the necessary clear and
convincing evidence necessary to rebut the presumption that these voters votes or
ballots were valid. Royalty v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-Houston
1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-San
Antonio 1954, pet. ref’d).
Reviewing all the evidence “in the light most favorable to the finding” of the
trial court that Appellee had not met her burden by clear and convincing proof that
Delma Cadena, Alexia Dinah Chavez, Alyssa Domitria Chavez, Delma Ann
Chavez, Diana Pena, and Valerie Jadine Pena. were not a residents of District 5 and
giving “appropriate deference to the factfinder’s conclusions” this Court “must
assume that the [trial court] resolved disputed facts in favor of its finding” and
therefore affirm the trial court’s ruling on this Issue. Gonzalez v. Villarreal, supra;
Royalty v. Nicholson, supra; See also, Solis v. Martinez, supra.
6. Cross-Appellant offered no evidence that Delma Cadena, Alexia Dinah
Chavez, Alyssa Domitria Chavez, Delma Ann Chavez, Diana Pena, and
Valerie Jadine Pena. voted in the election being contested.
Additionally, Cross-Appellant failed to offer any proof that Delma Cadena,
Alexia Dinah Chavez, Alyssa Domitria Chavez, Delma Ann Chavez, Diana Pena,
and Valerie Jadine Pena. in fact voted in the election being contested. Therefore, as
17
a matter of law Cross-Appellant failed to meet her burden that these challenged
voter voted in the election being contested and this Court must affirm the trial
court’s decision to overrule Appellee’s challenge to Guadalupe Rivera, Jr. 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).
7. Cross-Appellant has failed to meet her burden to prove by clear and
convincing evidence that the following voters were not legal residents of 316
West Torritos, Weslaco, Texas and District 5 of the Weslaco City
Commission: (a) Raul Rivera, Sr. (b) Illiana Yvonne Rivera, and (c) Raul
Rivera, Jr.
Hortencia Cuellar, the sister of Cross-Appellee Guadalupe Rivera, was the
only witness called by Cross-Appellant Lopez to testify as to the residence or non-
residence on voters who are being challenged. Cross-Appellant Lopez, whose
burden it was to show that 316 West Torritos was not their residence as defined by
Texas law, did not call, nor subpoena, any of these voters to testify either by
deposition or at trial. Master Index, Alphabetical Index of Witnesses, RR1, 10-13.
The following is a synopsis of Hortencia Cuellar testimony:
(1) She testified that her grandchildren, Cassandra Alaniz, Corina Alaniz
and Jesse Alaniz “always come and visit with [her] . . over the weekends, or on the
holidays or on vacations they go and stay with [her].” Deposition of Hortencia
Cuellar, RR3, p 93, line 2- These are her daughter, Felipa Alaniz’ children. She
also testified that her daughter, Felipa, visits her every day. Deposition of
Hortencia Cuellar, RR3, p 93, line 2-22. Felipa Alaniz also occasionally sleeps at
18
her house - sometimes two or three days. - sometimes with her children. She
testified that Felipa is very close to her. Id, p 94, line 14-20. She also testified that
Felipa does not own a home, she rents. Id, p 94, line 5-7.
(2) She testified that Irma Rivera, is Raul Rivera’s wife and the mother of
Illiana Yvonne Rivera. Id, p 98, line 9-12. That they live in rented house and that
they never stay very long in one single house. Id, line 13-15. Raul and his family
have rented houses “throughout his entire life.” Id, p 99, line 5-9. At one point
they stayed with her, because “they didn’t have the wherewithal to rent.” They
stayed with here for about two years. Id, p 99, line 10-14.
(3) She testified that the house located at 316 West Torritos, Weslaco, Texas
“was the house where [her] entire family was raised.” Id, p 104, line 21-23. Her
“entire family has lived there since [she was] born.” Id, p 104, line 25-p 105, line
1. That same house “has been the residence of [her] family” for “85 or 90 years.”
Id, p 105, line 9-11. All of her brothers and sisters were born in the house,
including her brother Raul Rivera. Id, p 105, line 16-22. Also, most of her
grandchildren and nieces whose votes are being challenged by Cross-Appellant
were born in the house 316 West Torritos. Id, p 105, line 25- p 106, line6.
(4) She testified that the reason that Felipa Cuellar and Cassandra Alaniz are
registered to vote at 316 West Torritos, Weslaco, Texas because it is their residence.
Id, p 106, line 7-13. Although they may rent in other places, “they’ve always
considered that to be their home and their residence.” Id, line
19
14-18. The same applies to Raul Rivera, Irma Rivera and Illiana Yvonne Rivera.
Id, line 19-23. “Because Raul and Irma have never had a home anywhere else,
[she] and them have always considered the place where [she] resides as their
home.” Id, p 106, line 24- p 107, line 2. “[E]ven though they have to rent in other
places, they consider the place where [she] reside[s] 316 West Torritos as their
residence.” Id, line 3-8. at 36. In fact, she testified “that they even receive some
of their mail there.” Id, line 9-11. Sometimes all of the family members “get mail
at [her] house at one time or another.” Id, line 12, 14. Cassandra, Felipa, and
Illiana sometimes get mail at her house on 316 West Torritos. Id, line 15-20.
(5) “[N]one of these individuals, Cassandra - - neither Cassandra, neither
Felipa, neither Illiana Rivera, neither Irma, neither Raul, none of those individuals
own a home anywhere else.” “[N]ot a single one of them. The are renters, they
rent.” 316 West Torritos “where [she] live[s] in is a family house, it’s the family
house for the Rivera family.” Id, p 107, line 21-p 108, line 5.
Hortencia Cuellar testimony unequivocally establishes that the house on 316
West Torritos, Weslaco, Texas was the residence of a) Raul Rivera, b) Illiana
Yvonne Rivera, c) Raul Rivera, Jr, as well as the residence of the other challenged
voters of 316 West Torritos. Once the prima facie evidence of their residence was
established by Hortencia Cuellar, it was Cross-Appellant’s burden to prove by clear
and convincing evidence that in fact these persons did not have a present intention
of residing at 316 West Torritos, Weslaco, Texas, Mills v. Bartlett, 377 S.W.3d 636,
20
637 (Tex. 1964), or that they had no intention of returning to that residence after a
brief or prolonged absence. Royalty v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-
Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-
San Antonio 1954, pet. ref’d). Without their sworn testimony, Cross-Appellant
would have to offer evidence which proved by clear and convincing evidence, as a
matter of law, that these voters did not have a present intention of residing at 316
West Torritos or had no intention of returning to that residence after a brief or
prolonged absense. This she certainly did not do
As discussed before, not one of these individuals was called to testify at the
time of the trial in this case. Other than excerpts taken out of context from the
deposition of Hortencia Cuellar, the only evidence offered by Cross-Appellant on
each of the challenged voters listed above was the following:
(a) Raul Rivera - - Except for excerpts from Hortencia Cuellar’s deposition,
Cross-Appellant offered no evidence, clear and convincing or otherwise, to rebut
the presumption that Raul Rivera was a resident of 316 West Torritos and that his
vote was valid. There is no evidence that Raul Rivera’s had a residence other than
the residence at 316 West Torritos.
(b) Illiana Yvonne Rivera - The only evidence offered by Cross-Appellant to meet
the heavy burden that she was required to meet to throw out Illiana Yvonne
Rivera’s vote was Texas Department of Public Safety “Certified Abstract
21
Record” of a drivers license showing an address “105 1/2 Missouri, Weslaco, TX.”
Texas Department of Public Safety “Certified Abstract Record”, RR 7, Part 2, pp
15-16. The record shows that the drivers license with this address was first issued
on May 1, 2008, five and a half years prior to the date of the election. Furthermore,
and perhaps most importantly, there was no evidence offered that this Illiana
Yvonne Rivera, is the Illiana Yvonne Rivera who is registered to vote at 316 West
Torritos, Weslaco, Texas and who actually voted in the November 2013, election
for City Commissioner, District 5 election. Under Texas law, a five and half year
old drivers license application showing an address in a location other the residence
listed in the voter registration application of a voter is not clear and convincing
proof to overcome the presumption that the Illiana Yvonne Rivera in question in
fact resided at the residence that she declared as her residence when she registered
to vote and which her grandmother testified was her residence. See, In Re
Peacock, 2014 WL 316708 (Tex.App.-Tyler 2014)(A current filed homestead
exemption in another county is not enough to destroy residency in the county
where a voter or candidate is declaring her residency.).
(c) Raul Rivera, Jr. - Except for excerpts from Hortencia Cuellar’s
deposition, Cross-Appellant offered no evidence, clear and convincing or
otherwise, to rebut the presumption that Raul Rivera, Jr. was a resident of 316
West Torritos and that his vote was valid.
22
Cross-Appellant incorrectly states on page 8 of his brief that “DPS records
show an address for Raul Rivera at 105 1/2 South Missouri, Weslaco, Texas.”
Texas Department of Public Safety “Certified Abstract Record”, RR 7, Part 2, pp
9-11. In fact, Contestant’s Exhibit 41, which Cross-Appellant cites to, is a DPS
record of a drivers license of Raul Rivera, which lists his address as 316 W.
Torritos St., Weslaco, Texas. Finally, Cross-Appellant relies on the fact that the
trial court found Irma Rivera, wife of Raul Rivera, to not reside in District 5 as
evidence that Raul Rivera must also not reside in District 5. Cross-Appellee would
refer this Court to Appellant’s Brief wherein Appellant shows that the trial court
erred in finding that Irma Rivera was not a resident of District 5.
As to Raul Rivera, Jr. the although trial court mentioned during the court’s
pronouncement of his findings and rulings that the application to register was filled
out by the same person who filed out his mother’s registration application, the
court rightfully found that “there’s no evidence of his age, or if he lives with his
parents” and found that it could not find by clear and convincing evidence that
Raul Rivera, Jr did not reside at 316 W. Torritos, Weslaco, Texas. Findings of
Fact and Conclusions of Law, Supp CR 24-32.
With respect to all three of these voters, Cross-Appellant has failed to offer
clear and convincing evidence to rebut the presumption that their votes were valid
and to establish the negative that in fact they did not have a present intention of
having 316 West Torritos as their residence or that they did not intend to return to
23
their residence at 316 W. Torritos after a temporary or prolonged absence. Royalty
v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-Houston 1967); Solis v. Martinez,
264 S.W.2d 956 (Tex.Civ.App.-San Antonio 1954).
Reviewing all the evidence “in the light most favorable to the finding” of the
trial court that Cross-Appellant had not met her burden by clear and convincing
proof that Raul Rivera, Illiana Yvonne Rivera, and Raul Rivera, Jr. were not a
residents of District 5 and giving “appropriate deference to the factfinder’s
conclusions” this Court “must assume that the [trial court] resolved disputed facts
in favor of its finding” and therefore affirm the trial court’s ruling on this Issue.
Gonzalez v. Villarreal, supra; Royalty v. Nicholson, supra; See also, Solis v.
Martinez, supra.
8. Cross-Appellant offered no evidence that Raul Rivera, Illiana Yvonne
Rivera, and Raul Rivera, Jr. voted in the election being contested.
Additionally, Cross-Appellant failed to offer any proof Raul Rivera, Illiana
Yvonne Rivera, and Raul Rivera, Jr. in fact voted in the election being contested.
Therefore, as a matter of law Cross-Appellant failed to meet her burden that these
challenged voter voted in the election being contested and this Court must affirm
the trial court’s decision to overrule Cross-Appelant’s challenge to Guadalupe
Rivera, Jr. 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). voted in the
election being contested.
24
B. CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S
ISSUE NO. 1b:
The trial court did not commit error in failing to find by clear and convincing
evidence that Martinez voted for Cross-Appellee Rivera in the District 5 race in
that the trial court was within its discretion to chose to not believe that testimony
of Mr. Martinez.
Cross-Appellant asks this Court to reverse the trial court’s decision to not
find by clear and convincing evidence that Esteban Martinez voted for Guadalupe
Rivera, Jr. After the trial court made its findings in open court and after the trial
court issued its Findings of Fact and Conclusions of Law, Cross-Appellant filed
“CONTESTANT’S REQUESTS FOR ADDITIONAL AND AMENED
FINDINGS OF FACT AND CONCLUSIONS OF LAW” requesting that the trial
court make an additional finding of fact that Esteban Martinez voted for Guadalupe
Rivera. Contestant’s Request for Additional and Amended Findings of Fact and
Conclusions of Law, Supp CR 33-38; p 33 paragraphs 1-4. The trial court
declined: “Esteban Martinez -The court has found the vote to be illegal but was
unable to determine by clear and convincing evidence that it was cast for Rivera.
This vote remains in the undetermined category.” Trial Judge Email, Supp CR 39.
Cross-Appellant argues that the testimony of Esteban Martinez as to who he
voted for was “clear, direct, positive, and contradicted by any other witnesses or
attendant circumstances” and therefore should be “taken as true as a matter of law.”
BRIEF OF CROSS-APPELLANT LETICIA LOPEZ, pg. 49. Esteban Martinez
25
testified by deposition and at trial, having been called on both occasions by Cross-
Appellant. He provided the incredible testimony that the day after he cast his mail-
in ballot, a six pack of beer appeared on his door step - although he does not know
how it got there. RR2, p 203, line 24- p 204, line 7. Furthermore, the Cross-
Appellant argued from the outset that Esteban Martinez was illegally assisted and
sought to disqualify him on that basis.
Taking Mr. Martinez’ testimony as a whole, including the testimony
regarding the strange appearance of a six pack of beer at his door step , plus
considering the fact that he had been called to testify on more than one occasion in
this case, it was well within the discretion for the trial court to chose to believe
some of his testimony but not all. See: Johnson v. Ventling, 2013 WL 6730043
(Tex. App. Corpus Christi 2013); and Flores v. Fourth Court of Appeals,777 SW
2d. 38, 41-41, (Texas 1989). Given these facts, it was well within the discretion of
the trial court to fail to find by clear and convincing evidence that Esteban
Martinez voted for Guadalupe Martinez.
Reviewing all the evidence “in the light most favorable to the finding” of the
trial court that it could not find by clear and convincing evidence that Esteban
Martinez voted for Guadalupe Rivera, this Court “must assume that the [trial court]
resolved disputed facts in favor of its finding” and therefore affirm the trial court’s
26
ruling on this Issue. Gonzalez v. Villarreal, supra; Royalty v. Nicholson, supra;
See also, Solis v. Martinez, supra.
C. CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S
ISSUE NO. 2:
The trial court did not commit error in deducting the votes of Tomasa Cavazos,
Jose Luis Martinez, Sr., and Jose Luis Martinez, Jr. from Cross-Appellant
Lopez’s final vote count, because there is clear and convincing evidence to
support the finding that they did not reside in District 5 of the Weslaco City
Commission and voted for Cross-Appellant Lopez.
Cross-Appellant, not Cross-Appellee, subpoenaed and called Jose Luis
Martinez, Sr. and Jose Luis Martinez, Jr. to testify the time of trial. Cross-
Appellant Lopez, offered evidence that both Jose Luis Martinez, Sr. and Jose
Martinez, Jr. had voted illegally in the District 5 City Commission election and that
their votes should thereby not be counted. RR2, 21-52; 53-67. Both Jose Martinez,
Sr. and Jose Martinez, Jr. testified that they voted for Cross-Appellant Lopez
because Ms. Lopez had provided financial and emotional support to their family
after the tragic death of Mr. Martinez’ niece, Crystal Cavazos. RR2, p 36, line 13-
p 37, line 18; p 60, line 20- p 61, line 13. No evidence was offered by Cross-
Appellant to rebut this testimony as to who Jose Martinez, Sr. and Jose Martinez,
Jr. actually voted for in the District 5 election. Furthermore, Cross-Appellant
Lopez offered evidence challenging residence of a Tomasa Martinez Cavazos ,
who was the mother of Crystal Cavazos. RR 5, p 34-65. She likewise testified that
27
she had voted for Appellee Lopez because of the financial and emotional support
provided to her family by Ms. Lopez. RR5, p 43, line 6-18. Again, Cross-Appellant
Lopez did not rebut Mrs. Cavazos testimony regarding who she had voted for. RR5
pp 34-35.
The trial court found that Jose Luis Martinez, Sr., Jose Luis Martinez, Jr. and
Tomasa Martinez Cavazos did not reside in District 5, found that they had voted
for Cross-Appellant Lopez and deducted from Cross-Appellant Lopez’ total the
three votes that they cast. Findings of Fact and Conclusions of Law, Supp CR
24-32.
The evidence as to who these three voters voted for was not refuted. They
gave more than credible reasons for having cast their vote for Cross-Appellant.
Cross-Appellant challenged these voters and Cross-Appellant does not dispute that
she was able to prove by clear and convincing evidence that these voters were not
residents of District 5. Upon their disqualification, the trial court had the discretion
to determine who they voted for in deciding how their improper votes effected the
final outcome of the election being challenged. In considering all of the evidence,
(which in this instance there was only evidence offered by these three individuals
as to their vote for Appellee), this court is free to conclude that the evidence
support’s the trial court’s finding that these three individuals voted for Cross-
28
Appellant and that their votes should be deducted from Cross-Appellant.
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).
All that Cross-Appellant can argue is that their testimony is incredible and
can’t be believed. In fact they can be believed and the trial court could, within its
discretion, find that they did vote for Cross-Appellant Lopez. Reviewing all the
evidence “in the light most favorable to the finding” of the trial court that Jose Luis
Martinez, Jr., Jose Luis Martinez, Sr. and Tomas Cavazos had voted for Cross-
Appellant Lopez and giving “appropriate deference to the factfinder’s conclusions”
this Court “must assume that the [trial court] resolved disputed facts in favor of its
finding” and therefore affirm the trial court’s ruling on this Issue. Gonzalez v.
Villarreal, supra; Royalty v. Nicholson, supra; See also, Solis v. Martinez,
supra.
D. CROSS-APPELLEE’S REPLY TO CROSS-APPELLANT’S ISSUE NO
4
The trial court did not commit error in deducting four undervotes, rather than
one or two from the total number of illegal but undetermined votes cast in the
election because Cross-Appellant failed to prove by clear and convincing
evidence that said undetermined voters were not among the undercounted
undetermined voters.
Finally, Cross-Appellant in a confusing analysis of the undercount attempts
to convince this Court that the trial court erred by deducting 4 votes from the total
undetermined votes based upon the undercount in the election, i.e. based upon the
29
total number of District 4 voters not voting in the District 4 City Commission race.
Instead, it argues that the trial court should have subtracted two votes. Appellant
relies solely on a “canvas report” which it alleges proves by clear and convincing
evidence that the undercount should be four. No one was called to testify as to the
accuracy of the “canvas report”, how to interpret it and whether it accurately
reflected the undercount in each category of voters. Master Index, Alphabetical
Index of Witnesses, RR1, 10-13. Appellant asks this Court to take a leap of faith,
by clear and convincing evidence, and throw out an additional 2 votes. This is in
addition to the fact that there is no determination as to whose vote is actually being
disqualified for purposes of residency, recognizing that even if a voter who was not
a resident of District 5 could not vote in the District 5 City Commission election,
his vote was entirely legal in the election for mayor and the vote for the proposed
Constitutional Amendments. It should not be so easy to disenfranchise a voter -
our Constitution does not permit this.
Cross-Appellant sought to convince the trial court to take this “leap of faith”
when it filed proposed requests 27-29 in “CONTESTANT’S REQUEST FOR
ADDITIONAL AND AMENDED FINDINGS OF FACT AND CONCLUSIONS
OF LAW” on November 6, 2014. Contestant’s Request for Additional and
Amended Findings of Fact and Conclusions of Law, Supp CR 33-38. The trial
court’s response: “The court made no such findings in its decision.” Trial Judge
30
Email, Supp CR 39. Quite clearly, the court found, within its discretion, that the
Cross-Appellant had not proved by clear and convincing evidence an applicable
undercount less that four votes and thereby denied Cross-Appellant’s proposed
requests.
The trial court was within its discretion to believe or disbelieve any evidence
offered at trial, particularly when the burden upon the party seeking to prove a
matter in contention is by “clear and convincing evidence.” See: Johnson v.
Ventling, 2013 WL 6730043 (Tex. App. Corpus Christi 2013); and Flores v.
Fourth Court of Appeals,777 SW 2d. 38, 41-41, (Texas 1989). Here the trial
court, within its discretion, found by clear and convincing evidence that “that four
(4) voters did not cast a ballot for City Commissioner District 5, Weslaco, Hidalgo
County, Texas.” Reviewing all the evidence “in the light most favorable to the
finding” of the trial court that “that four (4) voters did not cast a ballot for City
Commissioner District 5, Weslaco, Hidalgo County, Texas” and giving
“appropriate deference to the factfinder’s conclusions” this Court “must assume
that the [trial court] resolved disputed facts in favor of its finding” and therefore
affirm the trial court’s ruling on this Issue. Gonzalez v. Villarreal, supra; Royalty
v. Nicholson, supra; See also, Solis v. Martinez, supra.
CONCLUSION
31
As the above arguments and evidence establish, the trial did not err in 1)
failing to find that Cross-Appellant failed to prove by clear and convincing
evidence that the voters challenged on the basis of residency were not residents, as
defined under the Texas Elections Code, of the residence where they were
registered, 2) failing to find by clear and convincing evidence that Esteban
Martinez voted for Guadalupe Rivera, 3) finding that Jose Luis Martinez, Sr., Jose
Martinez, Jr. and Tomasa Cavazos voted for Cross-Appellant Lopez, and 4) finding
by clear and convincing evidence that “that four (4) voters did not cast a ballot for
City Commissioner District 5, Weslaco, Hidalgo County, Texas”. As to these
rulings this Court should affirm the trial court.
Respectfully submitted,
Law Offices of Gilberto Hinojosa &
Associate, PC
/s/_________________________
Gilberto Hinojosa
State Bar No. 09701100
622 E. St. Charles
Brownsville, TX 78520
(956) 544-4218 (Telephone)
(956) 544-1335 (Facsimile)
ATTORNEY FOR APPELLANT
32
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been
forwarded to all counsel of record on this 5th day of January, 2015 in accordance
with the Texas Rules of Civil Procedure.
Jerad Wayne Najvar
NAJVAR LAW FIRM
4151 Southwest Freeway, Suite 625
Houston, TX 77027
Tel. (281) 404-4696
Cell: (281) 684-1227
email: jerad@najvarlaw.com
/s/_________________________
Gilberto Hinojosa
CERTIFICATE OF COMPLIANCE
I certify that based on the word count provided by the computer program
used to prepare this response brief, this document contains 7,784 words, excluding
the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(l).
BY: /s/_____________________
Gilberto Hinojosa
33