|
| |
Duncan wins again.
 |
Court
of Appeals, 5th District rules against T-Reese and finds there was evidence of mail-in
ballot vote fraud in May, 2001 District 4 council election.
Justice! |
 |
District 4 must vote
again. Question -- Do they run under the same district lines
as in 5/2001 or under the new District 4 lines? Question -- Will
Commissioner Price help Duncan this time? Question -- Will T-Reese use
mail-in ballot harvesting again?
| Congratulations
to Citizen Duncan for defending the election process. We all won
with him. Without honest elections, you cannot have Democracy! |
 |
The Court of
Appeals opinion is on line @ www.courtstuff.com/cgi-bin/as_web.exe?c05topin.ask+D+2769.
Below is the text.
File: 011846F - From documents transmitted: 06/10/2002
AFFIRMED; Opinion issued June 10, 2002
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-01-01846-CV
............................
MAXINE THORNTON REESE, Appellant
V.
LARRY DUNCAN, Appellee
.............................................................
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 01-04584-C
.............................................................
OPINION
Before Justices Lagarde, FitzGerald, and Richter
Opinion By Justice Lagarde
In this accelerated appeal in an election contest, Maxine Thornton Reese
(“Thornton Reese”), the contestee, raises eight issues in her challenge to
the trial court's November 20, 2001 final judgment. She contends the trial court
abused its discretion by declaring void the May 5, 2001 election for the Dallas
City Council, Place 4, and ordering a new election. For reasons that follow, we
resolve all issues against Thornton Reese, affirm the trial court's judgment,
and direct the Clerk of the Court to issue mandate instanter.
Background
A general election for Member of Council, Place 4, of the City Council of
Dallas, Texas, was held on May 5, 2001. The candidates were incumbent Thornton
Reese and contestant Larry Duncan, the immediate past incumbent. See Footnote 1
The official canvass of the election showed that of the 3,908 ballots cast,
1,928 votes were cast for Thornton Reese, 1,912 votes were cast for Duncan, and
sixty-eight ballots were either overvotes or undervotes.
See Footnote 2
In other words, Thornton Reese won by sixteen votes. See Footnote 3
On June 4, 2001, Duncan filed an election contest in which he alleged various
voting irregularities. Duncan asked the trial court to determine the true
outcome of the election or, alternatively, if the true outcome could not be
determined to declare the election void.
On October 26, 2001, Thornton Reese filed a dual no-evidence and traditional
motion for summary judgment, which, after a hearing, the trial court denied.
After Duncan rested his case in chief, Thornton Reese orally moved for a
directed verdict, which the trial court also denied. At the conclusion of the
trial, the court found there was insufficient evidence to ascertain the true
outcome of the election.
Consequently, the trial court declared the election void and ordered a
new election.
On December 14, 2001, the trial court entered findings of fact and conclusions
of law in support of its verdict. See Footnote 4
Evidentiary issues
In her sixth issue, Thornton Reese contends the trial court abused its
discretion in declaring the election void because it relied on improperly
admitted evidence. We first address those evidentiary issues.
To preserve a complaint for appellate review, the record must show the complaint
was presented to the trial court by a timely request, motion, or objection,
stating the specific grounds with sufficient specificity, and was adversely
ruled upon by the trial court. Tex. R.
App. P. 33.1(a); see McIntyre v. Wilson, 50 S.W.3d 674, 688 (Tex. App.-Dallas
2001, pet. denied); Ortiz v. Ford Motor Credit Co., 859 S.W. 2d 73, 77 (Tex.
App.-Corpus Christi 1993, writ denied).
Thornton Reese complains of the testimony of two witnesses: Duncan and
Linda James.
Duncan
Thornton Reese argues that because Duncan was not a statistical expert, the
trial court erred when it relied on Duncan's statistical testimony in making its
findings of fact and conclusions of law. Duncan counters that Thornton Reese did
not preserve error regarding her complaint that he was not an expert. The
record shows that Thornton Reese generally objected to Duncan's testimony by
stating, “He's not competent to testify as an expert.” The trial court
sustained Thornton Reese's objection and instructed Duncan that he could not
testify as an expert about statistical data. Because Thornton Reese obtained a
favorable, not adverse, ruling on her objection to Duncan testifying as an
expert, she has not preserved error for appellate review.
Linda James
When James was called as a witness, Thornton Reese generally objected that James
was not identified as a person with knowledge of relevant facts. Although the
trial court did not expressly overrule Thornton Reese's objection, it implicitly
did so by allowing James to testify about certain factual matters. The trial
court sustained Thornton Reese's objections to James's expert opinion testimony
or testimony about characteristics of the signatures that were not obvious to
the trial court. The trial court repeatedly sua sponte admonished James about
not providing expert opinion testimony and instructed her on the limitations on
her testimony. The trial court overruled Thornton Reese's objections regarding
James's testimony about the characteristics of the letters in the signatures
that the trial court could also observe.
On appeal, Thornton Reese contends the trial court erred when it relied on Linda
James's expert opinion testimony regarding the genuineness of the signatures.
See Footnote 5
Thornton Reese further contends the trial court reversibly erred in allowing
James to testify as an expert, although she was not qualified under the rules as
an expert, her opinions were without foundation, and her testimony was of no
ostensible value or assistance to the trial court. Duncan responds that although
the trial court precluded James from presenting expert testimony, it properly
allowed James to testify as a fact witness in which she pointed out different
characteristics of the signatures.
Although Thornton Reese complained in the trial court about James testifying as
a fact witness, on appeal she complains only about James's testimony as an
expert witness, and makes no complaint about her being allowed to testify as a
fact witness. Consequently, Thornton Reese has presented nothing for review on
her complaint about James's testimony as a fact witness. Further, because
Thornton Reese did not obtain an adverse ruling on her objection to James's
testimony as an expert witness she has not preserved error for appellate review
on that issue. We, therefore, resolve the sixth issue against Thornton Reese.
Standard of Review
In an appeal from a judgment in an election contest, the standard of review is
whether the trial court abused it discretion. See Tiller v. Martinez, 974 S.W.2d
769, 772 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.). In a nonjury case in
which both findings of fact and a statement of facts have been filed, we must
review the sufficiency of the evidence under the same standards used for jury
tried cases. See Slusher v. Streater, 896 S.W.2d 239, 243 (Tex. App.-Houston
[1st Dist.] 1995, no writ).
When reviewing a no-evidence or legal insufficiency point of error, we consider
only the evidence and inferences tending to support the dispositive findings and
disregard all evidence and inferences to the contrary. See Slusher, 896 S.W.2d
at 243; see also Casino Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex. App.-Dallas
2001, pet. denied). If there is more than a scintilla of evidence supporting the
dispositive findings, we must uphold the findings. See Casino Magic, 43 S.W.3d
at 19.
When reviewing factually insufficient points of error, we consider all the
evidence, including evidence contrary to the finding. See Casino Magic, 43
S.W.3d at 19; Slusher, 896 S.W.2d at 243. We set aside the verdict only if
the evidence is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. See Casino Magic, 43 S.W.3d at 19; Slusher, 896
S.W.2d at 243.
In reviewing the trial court's conclusions of law, the standard of review is de
novo. See Richardson Indep. Sch. Dist. v. GE Capital Corp., 58 S.W.3d 290, 293
(Tex. App.-Dallas 2001, no pet.)
Election Contest
An election contestant has the burden of proving by clear and convincing
evidence that voting irregularities materially affected the outcome of the
election. See Tiller, 974 S.W.2d at 772. In reviewing factual findings based on
a clear and convincing standard, the question
is whether sufficient evidence was presented to produce in the mind of the fact
finder a firm belief or conviction as to the truth of the allegations sought to
be established. See Casino Magic, 43 S.W.2d at 19.
In a multi-race election the contestant must first show that (1) illegal votes
were counted or (2) an election official prevented eligible voters from voting,
failed to count legal votes, or engaged in other fraud, illegal conduct or
mistake. See Tex. Elec. Code Ann. § 221.003 (Vernon 1986); 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); see also Tiller, 974 S.W.2d at 772. The
contestant must next show the illegal votes were cast in the race being
contested. Miller, 698 S.W.2d at 375; Medrano v. Gleinser, 769 S.W.2d 687, 688
(Tex. App.-Corpus Christi 1989, no writ).
Finally, the contestant must show either a “different result would have been
reached by counting or not counting certain specified votes or irregularities
were such as to render it impossible to determine the will of the majority of
the voters participating.” Goodman v. Wise, 620 S.W.2d 857, 859 (Tex. Civ.
App.-Corpus Christi 1981, writ ref'd n.r.e.). After the contestant has
proved that illegal votes were cast in the contested race, if the trial court
can ascertain the true outcome, it must declare the outcome. Tex. Elec. Code
Ann. § 221.012(a) (Vernon 1986); Tiller, 974 S.W.2d at 772; Medrano, 769 S.W.2d
at 688.
In order to determine the true outcome, the trial court may compel the voter to
reveal for whom he or she voted. Tex. Elec. Code Ann. § 221.009 (a) (Vernon
Supp. 2002); Medrano, 769 S.W.2d at 688.
Then, the trial court shall subtract the vote from the official total for the
candidate for whom the voter cast his or her vote. Tex. Elec. Code Ann. §
221.001(a) (Vernon 1986) Medrano, 769 S.W.2d at 688.
However, if the number of illegal votes is equal to or exceeds the number of
votes necessary to change the outcome the trial court may void the election
without attempting to determine how the voters voted. Tex. Elec. Code Ann. §
221.009 (b) (Vernon Supp. 2002); Medrano, 769 S.W.2d at 688. The trial court
must consider those votes in making its judgment. Tex. Elec. Code Ann. §
221.001(a) (Vernon 1986); Medrano, 769 S.W.2d at 688. If the trial court cannot
ascertain the true outcome of the election, it must declare the election void.
Tex. Elec. Code Ann. § 221.012(b) (Vernon 1986); Tiller, 974 S.W.2d at 772;
Medrano, 769 S.W.2d at 688.
Early Voting Ballots by Mail
In her first issue, Thornton Reese contends the trial court abused its
discretion in voiding the twenty-one early voting ballots by mail because the
evidence is legally and factually insufficient to establish the ballots were the
result of official error, mistake or fraud, or voter or candidate abuse or
fraud. Thornton Reese argues Duncan has the burden of overcoming the presumption
that the elections department acted properly in receiving or rejecting ballots.
In her second issue, Thornton Reese contends subsection 86.006(d) of the
election code requiring notation of the date and time the carrier received the
official carrier envelope is directory, not mandatory, because there were no
findings (i) of voter fraud, (ii) of fraud or abuse by election officials, or
(iii) that a particular ballot was untimely delivered or from a prohibited
source. See Tex. Elec. Code Ann. § 86.006(d) (Vernon Supp. 2002).
Thornton Reese argues the date and hour requirements pertain to the orderly and
prompt conduct of the election process, not to the essence of casting the
ballot; thus, the provisions are directory, not mandatory.
Further, Thornton Reese
argues the votes should be counted if doing so accomplishes the substantial
purpose of the statute and the Texas Constitution. Finally, she urges that the
date and time notation is discretionary when the early voting clerk accepts the
carrier envelope in the absence of fraud or a question regarding the timeliness
and source of the ballot.
Duncan contends the trial court correctly held the twenty-one early voting
ballots by mail constituted illegal votes due to noncompliance with section
86.006(d) of the election code. See Tex. Elec. Code Ann. § 86.006(d). The
evidence showed that Virgin Couriers's delivery receipts did not contain the
date, hour, and address at which the carrier envelope was received.
Duncan argues that section 86.006(d) is mandatory because the legislature has
expressly prohibited the counting of an early voting ballot delivered by a
carrier without an individual delivery receipt indicating the date, time, and
location of pick up. Because our resolution of Thornton Reese's second issue
implicates her first issue, we address the second issue first. The Statute:
Mandatory or Directory?
The legislature has determined the specific method of returning ballots by mail
or carrier and has expressly prescribed the consequences for failing to comply
by prohibiting ballots returned in violation of this method to be counted.
Section 86.006 of the election code prescribes the requirements for returning a
marked early voting ballot by mail or common or contract carrier. See Tex. Elec.
Code Ann. § 86.006 (Vernon Supp. 2002).
First, a marked ballot must be returned to the early voting clerk in an official
carrier envelope. Id. § 86.006(a).
Second, the carrier envelope must be delivered by mail or by common or contract
carrier. Id.
Third, a carrier envelope may not be returned in an envelope or package
containing another carrier envelope, but voters who are registered to vote at
the same address may return their carrier envelopes together. Id. § 86.006(b),
(c).
Fourth, each carrier envelope delivered by carrier must be accompanied by an
individual delivery receipt that “indicates the date, hour, and address at
which the carrier envelope was received by the carrier unless the carrier does
not routinely issue a receipt.” Id. § 86.006(d).
Fifth, a carrier is prohibited from delivering a carrier envelope that
originates from the address of: (1) a political party's headquarters; (2) a
candidate in the election unless the address is the residence of the early
voter; (3) a specific-purpose or general-purpose political committee involved in
the election; or (4) an entity that requested the election be held, unless the
delivery is a forwarding to the early voting clerk. Id.
Section 86.006(e) expressly states “a ballot returned in violation of this
section may not be counted.”
The validity of the twenty-one early voting ballots depends on whether section
86.006 of the election code is directory or mandatory. If the statute is
mandatory, whether there was substantial compliance is not relevant because
“provisions deemed mandatory in nature permit no application of the
substantial compliance rule.” Kelly v. Scott, 733 S.W.2d 312, 313-14 (Tex.
App.-El Paso 1987, writ dism'd) “The general rule is that the performance of
duties placed upon election officials is directory unless made mandatory by
statute, while those placed upon the voters are mandatory.” Fuentes v. Howard,
423 S.W.2d 420, 423 (Tex. Civ. App.-El Paso 1967, writ dism'd) (emphasis added).
Our function is to interpret and apply the law as written by the legislature.
See Fuentes, 423 S.W.2d at 423. The Texas Constitution has limited
legislative action to legislation “necessary to detect and punish fraud and
preserve the purity of the ballot box,” and to protect the exercise of free
suffrage from “all undue influence . . . from power, bribery, tumult or other
improper practice.” Tex. Const. art. 6, §§ 2,4; Mitchell v. Jones, 361
S.W.2d 224, 227 (Tex. Civ. App.-Texarkana 1962, no writ). “The general rule of
interpretation is that the election laws are to be construed as directory in the
absence of fraud or a mandatory provision which requires the voiding of a ballot
for failure to comply with its provisions.” Kelly, 733 S.W.2d at 313-14
(emphasis added); see also Honts v. Shaw, 975 S.W.2d 816, 822 (Tex. App.-Austin
1998, no pet.) (“the courts have been liberal in construing and enforcing as
directory only the provisions of the election laws which are not upon their face
clearly mandatory”).
When interpreting a statute, we consider the entire statute rather than its
isolated provisions. See Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493
(Tex. 2001). We presume the legislature intends the “entire statute to be
effective” and “a just and reasonable result is intended.” Tex. Gov't Code
Ann. § 311.021(2),(3) (Vernon 1998); Helena, 47 S.W.3d at 493. Section 86.006
dictates that a “ballot returned in violation of this section may not be
counted.” Tex. Elec. Code Ann. § 86.006(e). The construction code act states
“may not” is synonymous with “shall not” and imposes a prohibition
unless “the context in which the
word or phrase appears necessarily requires a different construction.”
Tex. Gov't Code Ann. § 311.016(5) (Vernon 1998). The context of this statute
does not “necessarily require” a different construction; consequently, we
construe “may not” to mean “shall not.”
Thornton Reese's contention that the statute is directory depends upon the
absence of mandatory language specifying the consequences for failing to comply.
If the legislature included section 86.006 simply to promote prompt, orderly,
and proper business conduct, as Thornton Reese suggests, and not to prevent
fraud or abuse, then it would not have included language that a violation of the
statute results in a ballot not being counted. A ballot returned in violation of
section 86.006 is prohibited from being counted.
Accordingly, we conclude the statutory requirements of section 86.006 of the
election code are mandatory, not directory. See, e.g., Kelley, 733 S.W.2d at
313-14 (concluding section 102.002 of the Texas Election Code (Vernon 1986 ) was
mandatory because section 84.001(d) of the Texas Election Code (Vernon 1986),
which contained a mandatory provision, included section 102.002); Fuentes, 423
S.W.2d at 423-24 (holding former article 5.05, section 15 of the election code,
now section 86.010(c), to be mandatory because it contained mandatory language).
And because the statute is mandatory, it is irrelevant that there may have been
substantial compliance because application of the substantial compliance rule is
not permitted. See Kelly, 733 S.W. 2d at 313-14. We resolve the second issue
against Thornton Reese.
Sufficiency of the Evidence
The trial court filed findings of fact and conclusions of law. In finding
of fact number eleven, the trial court found that on May 3, 2001, twenty-one
carrier envelopes purporting to be those of specifically named voters, including
their precincts, were delivered by courier to the Dallas County Elections
Department. The trial court also found:
(1) the envelopes were delivered by Virgin Couriers, a common or contract
carrier;
(2) the individual delivery receipt that accompanied each carrier envelope did
not indicate the date, hour, and address at which the envelope was received by
the carrier;
(4) the Dallas County Elections Administrator, who was not present at the May 5
election, would have rejected the carrier envelopes for non-compliance with the
requirements of section 86.006(d) of the Texas Elections Code;
(5) the absence of any rejection notation on the envelopes infers that none of
the envelopes was rejected by the Dallas County Early Voting Ballot Board;
and
(6) in the absence of any notation to the contrary each envelope contained one
and only one ballot.
Copies of the official carrier envelopes show a stamp stating “ENT'D MAY 03
2001” and a label stating the voter's name, address, registration number,
precinct number and date of the election. In the absence of any notations to the
contrary, we assume a ballot was in the carrier envelope and the ballot was
accepted. The evidence shows the following regarding the twenty-one early
voting ballots in question that were admitted into evidence at trial:
They were picked up and delivered by Stacey Simmons, an employee of Virgin
Couriers, a common or contract carrier; Virgin Couriers routinely issues
receipts; Virgin requires the couriers to use receipts for deliveries; each
carrier envelope in question had an individual receipt; the individual receipts
were completed by someone at a house on Dunbar where Simmons picked up the
envelopes;
Charlotte Ragsdale called the Virgin Couriers' dispatcher for a pick up at 3611
Dunbar for delivery to the elections department; Ragsdale picked up a few
ballots for Tom Whatley's school board race in precinct 3517; the ballots did
not originate from a prohibited source; Ragsdale's home was not a campaign
headquarters, nor was she a candidate in the election.
Twenty of the twenty-one individual receipts did not show the date, hour, and
address at which Virgin Couriers picked up the official carrier envelope. One of
the receipts showed the date but not the hour and address of pick up. Bruce
Sherbet, the Dallas County Elections Administrator who was designated as an
elections expert at trial, testified the twenty-one ballots in question should
have been rejected because they did not comply with state law and that the
elections department employee made a mistake in accepting them. See Footnote 6
Thornton Reese contends the elections department did not make a mistake in
accepting the ballots. However, Duncan's burden was to show by clear and
convincing evidence only that illegal votes were counted or an election official
made a mistake. Because we have earlier concluded section 86.006 is mandatory,
the trial court properly concluded the twenty-one early voting ballots
constituted illegal votes because they did not comply with the mandatory
requirements of section 86.006 of the election code.
Because the evidence supports that conclusion of law and further, because the
evidence supports a finding of fact that the illegal votes were counted, it is
not necessary to address whether an election official made a mistake. Because
the evidence is legally and factually sufficient to support the trial court's
findings of fact, the trial did not abuse its discretion.
We resolve the first issue against Thornton Reese.
Unconstitutionality of the Statute
In her third issue, Thornton Reese contends section 86.006 of the election code
is unconstitutional both facially and as applied. Specifically, she argues
section 86.006 violates
(i) the due process and equal protection clauses of the Fourteenth Amendment of
the U.S. Constitution,
(ii) the general voting rights principles set forth in the Voters Rights Act of
1965, and
(iii) the federal “substantial compliance” principles articulated in Bush v.
Palm Beach Canvassing Bd., 531 U.S. 70 (2000) and Bush v. Gore, 531 U.S. 98
(2000). See U.S. Const.
amend XIV, § 1; 42 U.S.C.A. § 1971 (1994).
Duncan contends Thornton eese's arguments were not properly preserved in
the trial court and cannot be considered on appeal. Although Thornton Reese
generally challenged the constitutionality of section 86.006 of the election
code in the trial court, she did not raise the specific constitutional claims
she now raises in this appeal. Because she did not make these specific claims in
the trial court, we do not address Thornton Reese's constitutional claims. See
Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993); McIntyre, 50 S.W.3d at 688;
see also Tex. R. App. P. 33.1(a).
Signature Discrepancies
In her fourth issue, Thornton Reese contends the trial court abused its
discretion in disqualifying eleven ballots because the evidence is legally and
factually insufficient to support the trial court's findings of fact that the
early voting ballot applications and/or carrier envelopes were not signed by the
voter. Thornton Reese appears to challenge findings of fact numbers
twenty-three, twenty-four, and twenty-five. In those findings, the trial court
found that “either the ballot application or the carrier envelope or both”
were not signed by nine specifically named voters. The trial court also found
that the ballot applications of two pairs of specifically named voters were
signed by the same person. The trial court based its findings on its own
examination of the signatures and on trial testimony.
The trial court concluded the early voting ballots by mail constituted illegal
votes and they were counted due to a mistake by an election officer.
Thornton Reese argues the signatures on the ballot applications and carrier
envelopes are not different enough to require reversal of the decision of the
signature-verification committee that accepted the
ballots. She argues Duncan must overcome the presumption that the election
officials properly discharged their duty in receiving or rejecting a
ballot.
Further, Thornton Reese argues the trial court applied an incorrect standard to
determine signature discrepancy on the ballot applications of the two pairs of
voters because it improperly compared one voter's signature with another voter's
signature. To be entitled to vote an early voting ballot by mail, the
application must be signed by the eligible voter. Tex. Elec. Code Ann. §
84.001(b) (Vernon Supp. 2002). A witness may sign for the voter if the voter
cannot sign due to a physical disability or illiteracy. Id. §1.011(d). A person
who fails to comply with section 84.001 of the election code is not entitled to
receive an early voting ballot by mail. Id. § 84.001(f). A voter is required to
sign the certificate on the carrier envelope after it is sealed. Id. §
86.005(c).
After the early voting clerk delivers the early voting ballots by mail to the
early voting ballot board, the board accepts a ballot, among other requirements,
if neither the voter's signature on the application nor the signature on the
carrier envelope is “determined to have been executed by a person other than
the voter, unless signed by a witness.” Id. §87.041(b)(2). If the board
rejects a ballot, it shall enter “rejected” on the carrier envelope. Id. §
87.041(d).
The contestant must overcome the presumption that the early voting ballot board
or signature-verification committee acted properly in rejecting or accepting
ballots. See Alvarez v. Espinoza, 844 S.W.2d 238, 244 (Tex. App.-San Antonio
1992, writ dism'd w.o.j).
The contestant must show that the board erred. See id.
In determining whether there is a signature discrepancy involving an early
voting ballot, the trial court may hear testimony from the voter or other
witnesses on the similarity of the signatures and may compare the signatures to
refute the signature verification committee's decision. See Tiller, 974 S.W.2d
at 777; Alvarez, 844 S.W.2d at 245. When the signatures clearly appear to be
different, the trial court may compare the signatures on its own and determine
the validity without hearing testimony from the voter or other witnesses
regarding the similarity of the signatures. See Tiller, 974 S.W.2d at 777;
Alvarez, 844 S.W.2d at 245.
To determine whether the trial court abused its discretion, we must review and
compare each signature on the early voting ballot applications and carrier
envelopes the trial court found to be non-genuine to ascertain whether the
signatures are similar enough
(i) to compel the conclusion that the same person signed them, or
(ii) to override the trial court's conclusion that the same person did not sign
them.
See Alvarez, 844 S.W.2d at 245; cf. Tiller, 974 S.W.2d at 777 (applying the
standard of review in a case in which the trial court found the election judge
improperly rejected the ballots). We do not determine the credibility of any
witness or substitute our judgment for that of the trial court. See Tiller, 974
S.W.2d at 777.
Applying the above law to the facts of this case, the evidence shows the trial
court had access to photocopies and photographs of the ballot application,
carrier envelope, and voter registration application for each challenged
signature.
Linda James, testifying only as a fact witness, pointed out the similarity and
dissimilarity of the letters in some but not all of the challenged pairs of
signatures.
Bruce Sherbet testified that a two-person signature-verification committee
compares the signatures on the carrier envelope and ballot application to
determine if they were signed by the same person. They spend ten to fifteen
seconds comparing the signatures looking for common traits. If the ballot is
accepted, each person on the signature-verification committee initials the label
affixed to the carrier envelope or “ballot courier envelope.” If they do not
agree, then the application and carrier envelope are sent to the early voting
ballot board. Then the ballot board makes the determination of whether to accept
the ballot.
Each of the eleven contested ballots shows a label and initials on the label.
The evidence shows the signature-verification committee compared the signatures
and accepted the ballots.
Thornton Reese argues that James's testimony was insufficient to support the
trial court's findings. On cross-examination, James testified she did not know
any of the voters, nor was she familiar with their medical history, the writing
surface used when the signature was made, the writing instrument used, or what
the voters were doing when they signed the forms.
Thornton Reese argues that any one of these factors could have caused
differences in the voter's signatures. Also, the voters did not testify. Because
it was within the trial court's discretion to compare signatures without the aid
of other testimony, it was not necessary that the voters testify. See Tiller,
974 S.W.2d at 777.
Further, Duncan's burden was to prove by clear and convincing evidence that the
signatures were dissimilar, not to show why the signatures might be different.
Thornton Reese could have refuted Duncan's evidence by presenting controverting
evidence showing that the signatures were genuine, but she did not.
Having reviewed and compared each pair of challenged signatures in the trial
court's finding of fact number twenty-three, we conclude none of the pairs of
signatures are similar enough to compel the conclusion that the voter signed the
ballot application or carrier envelope or both, or to override the trial court's
finding that either the ballot application or the carrier envelope or both were
not signed by the voter.
The evidence was legally and factually sufficient to support the trial court's
finding of fact. Accordingly, the trial court did not abuse its discretion.
In findings of fact numbers twenty-four and twenty-five, the trial court found
the ballot applications of the challenged voters were signed by the same person;
thus, one or both applications were not signed by the voter. The trial court
compared the signatures of one voter's ballot application against the signatures
of another voter's ballot application. The voter's carrier envelope and voter
registration application were also available to the trial court for signature
comparison.
The early voting ballot board and signature-verification committee are limited
in their scope of inquiry. See Tex. Elec. Code Ann. §§ 87.027(i), 87.041(e)
(Vernon Supp. 2002) (may compare the signature on the carrier envelope against
the signature on the ballot application; may compare these signatures with the
signature on the voter's registration application to confirm the signatures
match).
The trial court, on the other hand, has broad discretion in determining whether
illegal votes were counted. See Tex. Elec. Code Ann. § 221.003(a) (scope of
inquiry); see e.g., Tiller, 974 S.W.2d at 777 (the trial court can hear oral
testimony regarding signatures).
Having reviewed and compared each pair of challenged signatures in these
findings of fact, we conclude the signatures on the ballot applications of each
pair of voters are not different enough to compel the conclusion that different
persons signed the ballot applications, or to override the trial court's
conclusion that the ballot applications were signed by the same person. The
evidence was legally and factually sufficient to support the trial court's
findings of fact numbers twenty-four and twenty-five.
Accordingly, the trial court did not abuse its discretion. We resolve the
fourth issue against Thornton Reese.
Election Outcome
In her fifth issue, Thornton Reese contends the trial court abused its
discretion in declaring the election void because the evidence is legally and
factually insufficient to show that the thirty-two See Footnote 7 disqualified
ballots contained votes cast in the Place 4 Dallas city council election, which
candidate received the votes, and that the votes made a difference in the
election.
Thornton Reese argues the trial court could have based its decision that the
election was void on ballots that were:
(i) not cast in the Place 4 city council election,
(ii) rejected, or
(iii) counted as undervotes or overvotes.
Duncan, of course, contends the trial court properly exercised its discretion
when it declared the election void without attempting to ascertain how
particular illegal votes were cast. Duncan correctly contends the trial court is
not required to ascertain for whom a particular vote was cast if the number of
illegal votes is equal to or exceeds the margin of victory. The thirty votes See
Footnote 8 the court concluded were illegal exceeded Thornton Reese's sixteen
vote margin of victory. The trial court also considered that the undervotes and
overvotes might be included in the illegal votes.
A contestant can show for whom a particular vote was cast to determine the true
outcome of the election or the contestant can show the illegal votes exceed the
margin of victory. See Tex. Elec. Code Ann. § 221.009 (Vernon Supp. 2002);
Miller, 698 S.W.2d at 375; Goodman, 620 S.W.2d at 859. The trial court “may
declare the election void without attempting to determine how individual voters
voted” if the number of illegal votes is equal to or greater than the number
of votes necessary to change an election's outcome. Tex. Elec. Code Ann. §221.009(b).
Thus, when it is shown that the number of illegal votes is equal to or greater
than the number needed to change the outcome, the trial court is not required to
hear the voter's testimony to determine how the voter voted. See Green v. Reyes,
836 S.W.2d 203, 209 (Tex. App.-Houston [14th Dist.] 1992, no writ); Medrano, 769
S.W.2d at 690.
Thornton Reese argues the thirty-two ballots in question did not materially
affect the outcome because the evidence is legally and factually insufficient to
show whether any of the illegal votes were included in the seventeen early
voting ballots by mail that were rejected by the ballot board. See Footnote 9 In
addition, the two overvotes and eleven undervotes were not included in the vote
totals.
Thornton Reese contends the only way to determine whether a vote was cast in a
particular race is by requiring the voter to reveal his or her vote. Without the
voters' testimony about how they voted, Thornton Reese contends it cannot be
determined for whom they voted in the election. She asserts that
notwithstanding the fact that the elections department maintains voter history
records that show in which election the voter participated, Duncan did not
present the voter history record for all thirty- two voters.
The record reflects the following facts: the official canvassing report shows
Thornton Reese received 1,928 votes and Duncan received 1,912 votes, giving
Thornton Reese a sixteen-vote margin of victory; the thirty-two illegal votes
were from voters who voted in the Dallas city council, Place 4 race in the May
5, 2001 election; exhibit five, See Footnote 10 which included the thirty-two
illegal votes, represented voters who cast early voting ballots by mail in the
Dallas city council, Place 4 race of the May 5, 2001 election; unless otherwise
indicated, each carrier envelope contained a ballot; the voter's history record
indicates the election in which the voter participated in although it is not
“100 percent” accurate; See Footnote 11 if the voter did not cast a vote for
anyone on the ballot it would be counted as an undervote and the voter's history
record would indicate the voter participated in that election; none of the
illegal votes were rejected because there were no notations to the contrary; and
the trial court considered the undervotes in determining the number of illegal
votes.
The trial court inferentially found that none of the illegal votes was rejected
because there was no notation by the ballot board indicating rejection. Of the
330 votes cast by early voting by mail, there were two overvotes and eleven
undervotes. The trial court identified twenty-one voters whose carrier envelopes
did not comply with section 86.006(d) of the election code. The trial court
identified seven voters whose individual ballot application, carrier envelope,
or both were not signed by that particular voter.
The trial court identified two pairs of voters in which the ballot applications
were signed by the same person, thus one or both applications were signed by the
voter. There was no witness signing for the voters. The trial court did not
attempt to ascertain whether the voter signed the ballot applications or carrier
envelopes because the number of illegal votes exceeded the margin of victory.
The trial court found the carrier envelope and presence or absence of notations
a more reliable indicator of whether the voter cast an early voting ballot by
mail than the voter history records.
Finally, the trial court found the evidence was insufficient to determine the
true outcome of the election. Although the trial court did not make a
specific finding of fact regarding whether the illegal votes were cast in the
Dallas city council, Place 4 race, the omitted finding will be presumed in
support of the judgment if the evidence supports the finding. See Tex. R. Civ.
P. 299. See Footnote 12
The evidence shows that the illegal votes were cast in the Dallas city counsel,
Place 4 race of the May 5, 2001 election. Although some of the illegal votes may
have been counted as undervotes, the evidence shows the trial court considered
this possibility and compensated by finding more than twenty-seven illegal votes
(sixteen vote margin plus eleven undervotes). Because the evidence supports the
finding, we presume the trial court found the illegal votes were cast in the
Place 4 city council election.
Having reviewed the evidence supporting the trial court's findings, we conclude
there is more than a scintilla of evidence supporting the findings.
Further, based on all the evidence, we conclude the evidence is sufficient to
produce in the trial court's mind a firm belief or conviction as to the truth of
the allegations sought to be established. The trial court's findings of fact
support its conclusions of law that it could not determine the true outcome of
the election and the number of illegal votes was greater than the number of
votes necessary to change the outcome of the election.
Consequently, the trial court did not abuse its discretion by declaring the
election void and ordering a new election. We resolve the fifth issue against
Thornton Reese.
Denial of Motion for Summary Judgment
In her seventh issue, Thornton Reese contends the trial court
abused its discretion in orally denying her no-evidence motion for
summary judgment. If the trial court denies a motion for summary
judgment and the case is tried on its merits, the order denying the
summary judgment is not reviewable on appeal. See Carr v. Weiss, 984
S.W.2d 753, 760 (Tex. App.-Amarillo 1999, pet. denied); Steinberg v.
Medical Equip. Rental Services, Inc., 505 S.W.2d 692, 695 (Tex. Civ.
App.-Dallas 1974, no writ). Accordingly, we do not address this issue. Nothing being presented for review, we resolve the seventh issue against
Thornton Reese.
Denial of Motion for Directed Verdict
In her eighth issue, Thornton Reese contends the trial court
abused its discretion in denying her motion for directed verdict. The record reflects that after Duncan rested Thornton Reese made an oral
motion for directed verdict. The arguments Thornton Reese makes on
appeal were also made in her motion for directed verdict. A
complaint that the trial court erred in denying a motion for directed
verdict is “in essence a challenge to the legal sufficiency of the
evidence.” Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 187 (Tex.
App.-Dallas 1996, no writ).
When the appellate court reviews the denial
of a motion for directed verdict, it is limited to the specific grounds stated in the motion. See Cooper v. Lyon Fin. Services, Inc., 65 S.W.3d
197, 207 (Tex. App.-Houston [14th Dist.] 2001, no pet.) Because in issues one through five we have already concluded the
evidence was legally sufficient to support the trial court's findings of
fact and conclusions of law, we necessarily conclude the trial court did
not abuse its discretion in denying Thornton Reese's motion for directed
verdict. See, e.g., In re J.O.C., 47 S.W.3d 108, 116-17 (Tex. App.-Waco
2001, no pet.) (having previously found in the opinion that the record
contained legally sufficient evidence to support the ground stated in
the motion for directed verdict, the trial court did not err in denying
the motion). Accordingly, we resolve the eighth issue against Thornton
Reese.
Duncan's Request that No Motions for Rehearing be Entertained
and Mandate Issue Instanter
Duncan requests this court to order that no motion for rehearing
be entertained and to issue mandate instanter. Duncan argues that the
process needs to be expedited because the city council term expires on
June 9, 2003. Thornton Reese did not respond to Duncan's request.
Because our judgment is conclusive and timely resolution of this
case is required, no motion for rehearing will be entertained. See Tex.
Elec. Code Ann. § 232.014(e) (Vernon 1986); Tex. Elec. Code Ann. §231.009 (Vernon 1986); see also Tex. R. App. P. 49.4.
We direct the Clerk of the Court to issue mandate immediately. See Tex. R. App. P.
18.1(c); Tex. Gov't Code Ann. § 22.225(b)(2) (Vernon Supp. 2002); see,
e.g., Green, 836 S.W.2d at 214 (the appellate court issued mandate and
stated it would not entertain any motions for rehearing). We affirm the trial court's judgment.
SUE LAGARDE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
011846F.U05
-------------------
Footnote 1
The election also included a school district race and a proposition
regarding city council pay.
-------------------
Footnote 2
An overvote is a vote in which the voter voted for both candidates. An
undervote is a vote in which the voter did not vote for either
candidate.
-------------------
Footnote 3
Among the 330 ballots cast in early voting by mail, 247 votes were for
Thornton Reese, seventy votes were for Duncan, there were eleven undervotes, and two overvotes. Duncan received the majority of votes in
early voting by personal appearance and the majority of votes on
election day, but Thornton Reese received the majority of votes from
early voting ballots by mail. Place 4 was the only Dallas City Council
race on the May 5, 2001 ballot in which early voting determined the
outcome of the election. Three precincts (3518, 3528 & 3529) produced
the highest margins for Thornton Reese over Duncan in early voting by
mail. In these same precincts, early voting in the 2001 Dallas City
Council election increased by at least 20 percentage points over early
voting in the 1999 Dallas City Council election.
-------------------
Footnote 4
The original record filed in this appeal did not include the trial
court's findings of fact and conclusions of law notwithstanding Thornton
Reese's designation that they be included in the clerk's record. Following an order from this Court, the clerk's record was supplemented
with the findings of fact and conclusions of law.
-------------------
Footnote 5
James was offered as a handwriting expert but was allowed to testify at
trial only as a fact witness.
-------------------
Footnote 6
At the June 2, 2001 election Sherbert rejected similar ballots after
speaking to the Secretary of State about the problem.
-------------------
Footnote 7
There were thirty or thirty-two possible illegal votes depending on
whether the voter signed his or her ballot application and another
voter's application or did not sign either application. The trial court
found that two sets of ballot applications were signed by the same
person. Thus, either one or both applications were not signed by the
voter. Consequently, there are two or four illegal votes. Also, another
seven votes were illegal because the signatures did not match. Finally,
the trial court found that twenty-one votes were illegal because they
did not comply with section 86.006 of the election code.
-------------------
Footnote 8
Allowing for the possibility that two voters signed their ballot
applications, Duncan employs the lowest possible number of illegal
votes, which was thirty.
-------------------
Footnote 9
Thornton Reese made this factual assertion in her statement of facts.
Although Duncan generally challenged all of Thornton Reese's factual
assertions not supported by the record and specifically challenged
several of Thornton Reese's factual assertions, he did not challenge
this particular fact. We must accept as true the facts stated in an
appellant's brief unless another party contradicts them. Tex. R. App. P.
38.1(f). Because both Thornton Reese and Duncan discuss the seventeen
rejected ballots as an established fact, we will accept as true that
seventeen early voting by mail ballots were rejected.
-------------------
Footnote 10
Exhibit five contained the challenged voters' ballot applications,
carrier envelopes, voter registration applications, and courier receipts
if applicable.
-------------------
Footnote 11
The better method to determine whether the voter participated in a
particular election is to review signature rosters or look at
application for ballot by mail.
-------------------
Footnote 12
The record reflects that Thornton Reese did not request additional
findings of fact. Because she did not request additional findings of
fact, the omitted finding will be implied provided it is supported by
the evidence. See Tex. R. Civ. P. 299; Hawkins v. Comm'n for Lawyer
Discipline, 988 S.W.2d 927, 938 (Tex. App.-El Paso 1999, pet. denied),
cert. denied, 529 U.S. 1022 (2000).
-------------------
File Date[06/10/2002]
File Name[011846F]
File Locator[06/10/2002-011846F]
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