                                                                  ACCEPTED
                                                              01-14-00783-CV
                                                   FIRST COURT OF APPEALS
                                                           HOUSTON, TEXAS
                                                         5/11/2015 1:37:15 PM
                                                        CHRISTOPHER PRINE
                                                                       CLERK

   APPEAL NO. 01-14-00783-CV

                In the                       FILED IN
                                      1st COURT OF APPEALS
          Court of Appeals                HOUSTON, TEXAS
                For the               5/11/2015 1:37:15 PM
        First District of Texas       CHRISTOPHER A. PRINE
                                              Clerk
       ----------------------------

          On Appeal From:
         st
     151 Judicial District Court
        Harris County, Texas
       Cause No. 2013-75695
       ----------------------------

               State of Texas
                 Appellant

                     v.

              David B. Wilson
                 Appellee

       ---------------------------

       APPELLEE’S BRIEF




                     /s/ Keith Gross
                     Keith A. Gross
                     State Bar No. 24027357
                     250 Park Ave
                     League City, Texas 77573
                     832-932-5970
                     832-932-5688 FAX
                     ATTORNEY FOR APPELLEE

ORAL ARGUMENT NOT REQUESTED
           STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 39.7, Appellant does not request oral argument

                                PARTIES


APPELLEE:                     David Buren Wilson

COUNSEL AT TRIAL:
                              Keith A. Gross
                              SBN 24027357
                              250 Park Ave
                              League City, Texas 77573
                              832-932-5970
                              832-932-5688 FAX
                              Attorney for Appellant

APPELLANT:                    State of Texas

COUNSEL AT TRIAL:             Douglas Ray
                              16599300
                              1019 Congress, 15th Floor
                              Houston, Texas 77002

COUNSEL ON APPEAL:            Barbara Smith Armstrong
                              24055112
                              1019 Congress, 15th Floor
                              Houston, Texas 77002


PRESIDING JUDGE:              Mike Englehart: 151st District Court




                                    2
                                     TABLE OF CONTENTS

Table of Authorities .               .           .           .           .               .               .               .               .               .               .               .               . . . 4

Statement of Case .              .           .           .           .           .               .               .               .               .               .               .               .         . . 7

Issues Presented . . . . . . .                                                       .               .               .               .               .               .               .               .     . . 9

Statement of Facts       .           .           .           .           .               .               .               .               .               .               .               .               . . . 7

Summary of Argument .                        .           .           .           .               .               .               .               .               .               .               .        . . 14

Argument .    .      .       .           .           .           .           .               .               .               .               .               .               .               .           . .   15

1.    Response to Issue No. 1:

The State erroneously placed the burden of proof on Wilson………….…..15

2.    Response to Issue No. 2:

The trial court did not abuse its discretion by submitting a
jury charge that limited the State’s residency challenge
to November 5, 2013……………………………………………………….16

3.    Response to Issue No. 3 and 4

Appellant’s Legal and Factual Sufficiency Argument Fails…………...….19

4.    Response to Issue No. 5.

Appellant failed to preserve error…………………………………………..30

Prayer ……………………………………………………..……………….33

Certificate of Service . ……………………………………………………..33




                                                                             3
                     TABLE OF AUTHORITIES

City of Keller v. Wilson, 168 S.W. 3d 802, 822 (Tex. 2005)……………....27

City of Santa Fe v. Young, 1995 WL 529189
(Tex.App-Houston [14 Dist.] 1995). ………………………………...……23

City of Wichita Falls v. State of Texas, 526 S.W. 2d 618,
622 (Tex. Civ.App.—1975)………………………………………..……....15

Cramer v. Graham, 264 S.W.2d 135, 138
(Tex.Civ.App.—San Antonio 1954)…………………….……………...….25

Cruz v. Andrews Restoration, Inc. 364 S.W. 3d 817, 829 (Tex. 2012)…….18

Cunningham v. Pardale Bank, 660 S.W.2d 810, 813 (Tex. 1983). …...….17

Dow Chem. Co. v. Francis, 46 S.W. 3d 237, 241 (Tex. 2001)…………19,26

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d
757, 761 (Tex. 2003). ………………………………………………….….26

Hall v. Lone State Gas Co., 954 S.W.2d 174, 177
(Tex.App.—Austin 1997, pet denied)………………………………….…..30

In re Harvey B. Dawson, 2002 WL 34231215
(Tex.App.—Corpus Christi, 2002(not cited for publican) ……………..….21

In re Kelly, 421 S.W. 3d, 913, 918 (Tex.App.—Tyler, 2014) ………...….24

In re Lai, 333 S.W. 3d 645, 648 (Tex.App.—Dallas, 2009) …………...….21

Jordan v. Overstreet, 352 S.W. 2d, 296, 300
(Tex.App.—Beaumont 1961). ……………………………………...……..24

LaLande v. State, 676 S.W. 2d 115. 116 (Tex.Crim.App. 1984)…………..23

Lile v. Smith, 291 S.W.3d 75, 79 (Tex.App.—Texarkana,
2009)…………………………………………………………………….….17



                                   4
McBeth v. Streib, (Tex.Civ.App.) 96 S.W.2d 992, 995 (1936)………...…..21

McDuffee v. Miller, 327 S.W. 3d 808. 820
(Tex.App.—Beaumont 2010). ………………………………………...…..25

Mills v. Bartlett, 377 S.W. 2d 636, 637 (Tex. 1964)…………………...…..20

Nixon v. Slagle, 885 S.W.2d 658, 661 (Tex.App.—Tyler 1994)………..…21

Osterberg v. Peca, 12 S.W. 3d 31, 55 (Tex. 2001)………………...………19

Stacy v. Stacy, 480 S.W. 2d 479, 482 (Tex.Civ.App.—Waco 1972) ……...18

State v. Chacon, 273 S.W. 3d 375 (Tex.App.—San Antonio 2008)….. …..17

State v. Johnson, 150 S.W.2d 957 (Tex. 1951) ……………………...…….15

State ex rel. Osborn v. City of Mc Allen, 127
Tex. 63, 91 S.W.2d 688 (Comm’n App. 1936)…………………………….23

Trenholm v. Ratcliff, 646, S.W. 2d 927, 933 (Tex. 1983)………………….31

WorldPeace v. Comm’n for Lawyer Discpline, 183 S.W. 3d 451,
457 (Tex.App.—Houston [14th Dist.] 2005). …………………………..…17




                       RESPONSE TO ISSUES


                                  5
1.       The trial court not abuse its discretion submitting a jury charge that

limited State’s residency challenge to November 5, 2013 where the jury

charge conformed to the State’s pleadings and where the State approved the

charge, without objection.

2.       State failed to prove Wilson’s residence as a matter of law. The

jury’s unanimous verdict was not against the great weight of the evidence.

3.       State presented no valid public policy argument.




                        STATEMENT OF FACTS


                                      6
1.         Wilson filed his sworn application for Houston Community College,

Trustee, District II on August 26, 2013. Wilson’s application identified his

permanent residential address as 5600 West 34th Street. It is undisputed that

5600 West 34th Street is within District II. The election was on November 5,

2013. 1          Defendant David Wilson won the election and now holds the

official position as Houston Community College Trustee for District II.

2.         After Wilson won the election, the State filed a Quo Warranto

proceeding and challenged Wilson’s eligibility to hold office solely based on

his residency. The State’s live pleading was titled “State of Texas First

Amended Petition of Quo Warranto.”                           The State’s petition alleged the

following:

                    On or about Tuesday, November 5th, 2013, an election
           was conducted in Harris County, Texas to elect a Trustee to
           Houston Community College System (HCC), District II.
                    The State of Texas, through the Harris County Attorney’s
           Office, will show that David B. Wilson was not at the time of
           the election in November 2013, a resident of HCC District
           II, and is therefore ineligible to serve in that office. 2




1
    These facts are undisputed: See State’s Brief, Page 2.
2
    Clerk Record: Pg. 6


                                                        7
3.         At trial, counsel for the State made an opening statement. The State’s

opening statement indicated that the only question for the jury was where

Wilson resided on Election Day. Specifically, counsel stated:

                    “There is only going to be one question and that is:
           What is the residence of Mr. Wilson as of Election Day last
           year.” 3



4.         Before jury deliberations, the court conducted a jury charge

conference.           The court carefully reviewed each page of the proposed jury

charge, in open court, and asked each party for their objections. The State

approved the charge and made no objection.4                                    The instructions and

questions to the Court’s charge read in part: [C.R. Pg.18]

           “Residence” means domicile, that is one’s home and fixed
           place of habitation to which one intends to return after any
           temporary absences. Whether one is a resident depends upon
           the circumstances surrounding the person involved.
                    Volition, intention, and action are all elements to be
           considered in determining where a person resides and such
           elements are equally pertinent in denoting one’s residence.
                    You are instructed that the 5600 W. 34th Street address is
           located within Houston Community College (HCC) District II.
           You are further instructed that the 7307 Lake Lane address is

3
    R.R. Vol. 3, Pg. 133.
4
    R.R. Vol. 4 Pg 86-91; Also See State’s Brief Pg. 3. (State did not object to the charge)


                                                       8
           not located with Houston Community College (HCC) District
           II.
           Question No. 1: [C.R. Pg. 19]
                     Do you find by preponderance of the evidence that David
           B. Wilson was not a resident of Houston Community College
           (HCC) District II as of November 5, 2013?
           Answer:
           Circle one of the following:
                     David B. Wilson was a resident of HCC District II as of
           November 5, 2013 or
                     David B. Wilson was not a resident of HCC District II as
           of November 5, 2013.



5.         During closing argument, the State argued to the jury that its decision

would based on Wilson’s residency on November 5, 2013. Specifically,

counsel stated:

                     “Do you find by preponderance of the evidence that
           David B. Wilson was not a resident of Houston Community
           College District II as of November 5, 2013.” 5



6.         The jury indicated that Wilson was a resident of HCC District II by

circling the appropriate answer. 6 At trial, Wilson testified he lived at 5600



5
    Vol. 4 Pg. 94.
6
    C.R. Pg. 19


                                             9
West 34th Street in Houston and moved there in the year 2012.7 His driver’s

licensed designated his residence 5600 W. 34th Street was issued in May of

2012. 8     When asked why Wilson considered 5600 West 34th Street his

residence he stated: “I want it to be my residence. I live there. I spend the

majority of my time there. I want to live in the city of Houston. The politics

in the city of Houston affects my life and my business; so I choose to live

there so I can be active in the Houston politics.” 9                   Wilson does not dispute

he operates a business out of the building that looks like a warehouse, but he

bought the property was because it had an apartment in it as well.10

7.      Wilson testified that some of his reasons for designating District II, as

his residence were political.                 Wilson was concerned about Houston

Community College spending $45 million to support its campus in the

Middle East country of Qatar. Wilson also voiced his concern that Houston

Community College spent $8.3 million on a piece of property that appraised

for $2.7 million dollars.11 Over the prior 10 years Wilson ran in multiple

elections within Houston and Harris County, and he never designated the

Lake Lane address has his residence. 12


7
  R.R. Vol. 3 Pg. 147 Ln 21- 148
8
  R.R. Vol. 5b Exhibit No. 2; Testimony R.R. Vol. 4. Pg. 31 Ln 22- Pg. 32
9
  R.R. Vol. 4 Pg. 18- 19
10
   R.R. Vol. 4 Pg 31 Ln 2-7
11
   R.R. Vol 4 Pg. 29 through 30 Ln 9
12
   R.R. Vol. 5B: Ex.No. 48 (Voter’s Registration History)


                                                  10
8.      Wilson testified to establish his residency, he changed his voter’s

registration, his driver’s license, all of his individual and personal bank

accounts, the joint accounts, and his utilities bills to the residence.13

9.      Regarding the physical design of the building, Wilson testified there is

an apartment on the second floor.14 The second floor apartment contains a

fully furnished kitchen, bedroom, living area, closets and a bathroom. 15 The

State’s Brief did not contest Wilson’s testimony that he actually spent most

of his time at the 5600 West 34th address, but merely contested the

documentation supporting his residence.

10.     Wilson’s residence was not only established by his testimony, but also

through documentation evidencing his intent, volition and actions. Wilson

offered a copy of his sworn application to ballot (Vol. 5B Ex.1), driver’s

license, (Vol. 5B Ex.2), voter’s registration (Vol. 5B Ex.3), various photos

of his apartment (Vol. 5B Ex.33-40),              bank statements for relevant times

(Vol. 5B Ex.7), CitiBank statement (Vol. 5B Ex.8), CitiBank Checks (Vol.

5B Ex.9), Canada Drug shipping statement (Vol. 5B Ex.10), Shell charge

statement (Vol. 5B Ex.11), rapid rewards (Vol. 5B Ex.12), toll bill (Vol. 5B

Ex.13 ), quick pass bill (Vol. 5B Ex.15), Visa Rapid Rewards (Vol. 5B

Ex.17), BBVA Compass Acct Summary (Vol. 5B Ex.18), advertisements
13
   R.R. Vol 4 Pg. 30 Ln 14 – Ln 21.
14
   R.R. Vol. 4 Pg 30 Ln 22 through Pg. 31.
15
   R.R. Vol 5B: Ex. No. 33-40


                                             11
(Vol.      5B      Ex.20-25),         Magazines          subscriptions      (Vol.   5B   Ex.

24,26,29,30,31,32, and 45), phone bills (Vol. 5B Ex.57, 66), American

Express (Vol. 5B Ex.60), EZ tag statements (Vol. 5B Ex.64), electric bills

(Vol. 5B Ex.63), voter’s registration history (Vol. 5B Ex. 48) and video of

Wilson actually residing at his residence over a three-day period.

11.     The State pointed out Wilson’s wife, Connie lives at 7307 Lake Lane.

Despite the fact that David Wilson is married to Connie, the Lake Lane

property is solely in the name of Connie Wilson.16 Wilson testified that the

property solely belonged to his wife, Connie. 17

12.     Wilson also maintained a Wells Fargo account personal bank account

that listed his residence at 5600 West 34th Street. Wilson changed the

address on the account to reflect the 5600 W. 34th address in the spring of

2013. 18 Wilson’s rapid reward credit card identified Wilson’s residence as

5600 W. 34th Street. Wilson indicated he designated his residence in spring

of 2012. 19 Wilson testified he’s been getting Consumer Reports magazine at

the 5600 address since the spring of 2012. 20

13.     At the conclusion of the trial, the jury deliberated and returned a

unanimous verdict in favor of Wilson. Thereafter, the State filed a Motion

16
   R.R. Vol. 4. Pg. 32 Ln 20 – Pg. 33
17
   R.R. Vol. 4 Pg. 33. Ln 2- Ln 6; Also See RR. Vol. 5B Exhibit No. 6.
18
   R.R. Vol 4. Pg. 33 Ln 11- Pg. 34 Ln 7. and R.R. Vol. 5B Exhibit No. 7.
19
   R.R. Vol. 4. Pg. 35 Ln 21 – Pg. 36 Ln 10
20
   R.R. Vol. 4 Pg. Ln 14 – Ln 22.


                                                  12
for a Judgment not Withstanding the Verdict. The State’s motion was

denied. The State Appealed.




\




                                13
                       SUMMARY OF ARGUMENT

14.   Under Texas law, one residence is established through their volition,

intent, and actions. Residency is a question of fact where controverting

evidence is presented. The State sought to prove that Wilson did not reside

in District II, by attempting to prove an alternate residence outside the

district. The jury found in favor of Wilson. The State presented no-evidence

of residency that was conclusive, as a matter of law. Because Wilson

presented controverting evidence of his residency, the jury verdict and

judgment were both legally and factually sufficient.

15.   The State, by its own accord, limited its residency challenge to a

single day, November 5, 2013. The State’s pleadings, opening statement,

jury charge, and closing arguments confirm the same. Because the State did

not seek to challenge Wilson’s residency for a six-month period prior to the

election, the Court made no error.

16.   The State’s public policy argument was not made at trial, therefore,

State failed to preserve the matter for appeal. Further, the argument merely

a re-characterized its prior argument that the evidence was insufficient to

sustain the verdict.




                                     14
                               Argument and Analysis

Response No. 1

The State Erroneously Placed the Burden of Proof on Wilson to
Establish his Residency.
-------------------------------------

17.    The State argued that Wilson maintained the burden of proof to

establish his residence, and that he failed to meet his burden. [State’s Brief,

Pg. 3, 9,11 and 16] Flowing from this argument, the State contends the trial

court erred, or abused its discretion. The State’s contention is flawed both

legally and factually. At trial, the State was the plaintiff. It was the State’s

burden to show, by preponderance of the evidence, that Wilson was not

eligible to hold public office because he resided outside the geographical

boundaries of District II. Accordingly, the State’s entire brief is flawed from

the onset, because it erroneously placed the burden of proof on Wilson.

18.    Legally, the burden of proof was on the State to establish that Wilson

resided outside the boundaries of District II. City of Wichita Falls v. State of

Texas, 526 S.W. 2d 618, 622 (Tex. Civ.App.—1975)(State had the burden of

proof in Quo Warranto proceeding) and State v. Johnson, 150 S.W.2d 957

(Tex. 1951). (Plaintiff had burden of proof in Quo Warranto proceeding.)

Generally, in civil cases a plaintiff has the burden of proof as to each

element of a cause of action. Wilson had no burden to prove he resided

                                        15
within District II. Accordingly, the State’s Brief is tainted throughout with

its flawed reasoning.




Response Issue No. 2:

The trial court did not abuse its discretion by submitting a jury charge
that limited the State’s residency challenge to November 5, 2013, where
the jury charge conformed to the State’s pleadings, and where the State
approved the charge without objection.
------------------------------------------------



19.        The State was not obligated, as a matter of law, to limit its residency

challenge to one particular day, but it did. The State’s Quo Warranto action

sought to remove Wilson from office on grounds that he did not reside

within the geographical boundaries of District II on Election Day, November

5, 2013. The State’s pleadings limited its residency challenge to November

5, 2013.21 The State’s opening statement informed the jury its decision

would be based on where Wilson resided on November 5, 2013.22 At the

jury charge conference, the State did not object to the jury charge that




21
     C.R. Pg. 7; Section IV Facts.
22
     Vol. 3: Pg. 133.


                                             16
focused on Wilson’s residency on November 5, 2013. 23 During its closing

argument, the State argued Wilson’s residence should be determined based

on the date November 5, 2013. 24                            Thus, because the State limited its

residency challenge to a single day, and did not object to the jury charge, the

trial court did not abuse its discretion, or commit error.

20.        A pleading’s purpose is to give fair notice of a party’s claims and the

relief sought. WorldPeace v. Comm’n for Lawyer Discpline, 183 S.W. 3d

451, 457 (Tex.App.—Houston [14th Dist.] 2005, pet denied. The Rules

which Texas courts operate require that the judgment of the court shall

conform to the pleadings, the nature of the case proved and the verdict. Lile

v.       Smith,       291       S.W.3d         75,      79      (Tex.App.—Texarkana,            2009);

TEX.R.CIV.P.301. A party may not be granted relief in the absence of

pleadings to support that relief. Cunningham v. Pardale Bank, 660 S.W.2d

810, 813 (Tex. 1983). The State clearly and unambiguously limited its Quo

Warranto cause of action to Wilson’s residency on November 5, 2013. The

State’s argument that the trial court erred or abused its discretion in applying

the law to one day is without merit. If the State wanted to base its Quo

Warranto action based on Wilson residency on the preceding six months, it

merely had to “plead” for it and “request” it.

23
     R.R. Vol. 4 Pg 86-91; Also See State’s Brief Pg. 3. (State did not object to the charge)
24
     Vol. 4: Pg. 94


                                                       17
21.        Additionally, the State waived error by failing to raise the issue to the

Court. “Our procedural rules state that a complaint to a jury charge is

waived unless specifically included in an objection.” Cruz v. Andrews

Restoration, Inc. 364 S.W. 3d 817, 829 (Tex. 2012).                                The State failed to

reconcile this point of law in its brief. Because the State did not request a

charge that included a six-month residency requirement, and did not object

to the charge submitted to the jury, it waived error.25




25
     See Appellant’s Brief, Pg. 3: State Wrote: The State did not object to the charge.


                                                       18
Response No. 3:

Appellant’s Legal Sufficiency Argument Fails Because State Cannot
Establish Wilson’s Residence as a Matter of Law:
-----------------------------------------------

22.    In an absence of an objection to the jury charge, appellate courts

evaluate the sufficiency of evidence in light of the charge submitted to the

jury. Osterberg v. Peca, 12 S.W. 3d 31, 55 (Tex. 2001).           When a party

challenges the legal sufficiency of an adverse finding on which he had the

burden of proof, he must demonstrate on appeal that the evidence

conclusively established the facts in his favor as a matter of law. Dow Chem.

Co. v. Francis, 46 S.W. 3d 237, 241 (Tex. 2001). Accordingly, it was the

State’s burden to show Wilson did not reside within District II on November

5, 2013 as a matter of law. The State failed.

Residency is a Question of Fact:

23.    It is well established that one’s residency is largely a question of fact.

The Texas Election Code defines the term “residence” relative to the

common law. Texas Election Code § 1.015 provides in part:

               (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.




                                             19
             (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.



24.   Texas Election Code 1.015(b) provides that residency “shall be

determined by common-law rules except as otherwise provided by the

Election Code.” In re Kelly, 421 S.W. 3d, 913, 917 (Tex.App.—Tyler,

2014). The definition of “residency” is fact specific.    TEX.ELEC.CODE §

1.015(a).   In 1964 the Texas Supreme Court held that volition, intention

and action are the elements, or facts to be considered in determining a

person’s residence. The court wrote:

             “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.” Mills v. Bartlett, 377 S.W. 2d 636, 637
      (Tex. 1964).



25.   Historically residency is a question of fact.    “It is well settled, we

think, that the question of one’s residence in this state is distinctly one of



                                     20
intention and of fact.” McBeth v. Streib, (Tex.Civ.App.) 96 S.W.2s 992, 995

(1936) citing Savage v. Umphries, (Tex.Civ.App.) 118 S.W. 893 (1909);

Garvey v. Cain, (Tex.Civ.App.) 197 S.W. 765 (1917); Marsden v. Troy,

(Tex.Civ.App.) 189 S.W. 960 (1916);; and Hogg v. Waddell, (Tex.Civ.App.)

42 S.W.2s 488. In re Lai, 333 S.W. 3d 645, 648 (Tex.App.—Dallas, 2009)

(holding the issue of residency is a question of fact.); In re Harvey B.

Dawson, 2002 WL 34231215(Tex.App.—Corpus Christi, 2002(not cited for

publican) citing Stacy v. Stacy, 480 S.W. 2d 479, 482 (Tex.Civ.App.—Waco

1972) (holding in Texas, residency is a question of fact.). The elements of

volition, intention, and action are all questions of fact. To prove one’s

residence, as a matter of law, is a difficult burden. The State did not meet its

burden where Wilson offered controverting evidence of his residence.

26.   The Stated cited a single case where a party “Chair” declared a

candidate ineligible based on uncontroverted evidence and sworn statements

of the candidate himself.         Nixon v. Slagle, 885 S.W.2d 658, 661

(Tex.App.—Tyler 1994) In Nixon, the “Chair” relied on undisputed public

records that the candidate had established a residency in Travis County, he

had accepted employment in Travis County, and filed a sworn statement

with the “Chair” that he intended to be a resident of Travis County. The

records reviewed by the Chair were undisputed. Id. That is not the case in



                                      21
Wilson.       In Wilson, the State’s evidence was controverted. Secondly, the

documents relied on by the State did not establish Wilson’s residency, as a

matter of law, on November 5, 2013, or the prior six-month period

27.   The State relied on Wilson’s Federal Income Tax Return from the

years 2008-2012. For the year 2012, the Tax Return admitted into evidence

was one page. The tax return did not contain Mr. Wilson’s signature, much

less his sworn signature. The State failed to prove when the document was

filed. Further, the document provided a space for Wilson’s address, not his

residence.     The State then cited Wilson’s Application for Voter’s

Registration [P.E. 4] The application was dated December 21, 2012, long

before the November 5, 2013 date, or the six-month period. The failure to

timely change his voter’s application is not conclusive evidence, as a matter

of law.      Next, the State alleged the City of Houston “red tagged” the

warehouse at 5600 West 34th Street making it unlawful to inhabit as a

residence. [State’s Ex. 13] State’s exhibit [13] evidenced that the building

was “red tagged” on January 7, 2014. This date is not November 5, 2013,

nor part of the prior six-month residency period. Further, the City’s “red

tag” has no bearing on the elements of Wilson’s volition, intent, or actions.

Residency is determined by the conduct of the one establishing a residency,

not by the conduct of a third party. Thus, under the common law, it is



                                      22
Wilson’s conduct that is scrutinized to determine his residency, not the City

of Houston.

28.   Further, the ordinance that State referred to was not offered nor

admitted into evidence. The State incorporated Houston Amendments to

2006 International Building Code into its Brief erroneously. [Pg. 17]

(Appellee Request the Ordinance be struck from the Brief)      An ordinance

must be proved by competent evidence. State ex rel. Osborn v. City of Mc

Allen, 127 Tex. 63, 91 S.W.2d 688 (Comm’n App. 1936). Ordinances must

be proved—neither the trial court nor the appellate Court may take judicial

notice of it. LaLande v. State, 676 S.W. 2d 115. 116 (Tex.Crim.App. 1984).

Thus, because the ordinance was not admitted into evidence at trial, it may

not be considered on appeal.

29.   Thirdly, Wilson’s residence is determined by state statute, Texas

Election Code § 1.015.    A city ordinance may not preempt a state statute.

City of Santa Fe v. Young, 1995 WL 529189 (Tex.App-Houston [14 Dist.]

1995).   A state law preempts a home rule city ordinance to the extent the

state law is irreconcilably inconsistent. State v. Chacon, 273 S.W. 3d 375

(Tex.App.—San Antonio 2008).

30.   The State also alleged that Wilson paid taxes on the Lake Lane

property year after year. [State’s Brief, Pg. 12]   In the State’s Motion for



                                     23
Judgment Notwithstanding the Verdict, it alleged that “Wilson” claimed a

homestead exemption on the property. However, the State failed to point

out whether it was “Connie” Wilson or “David” Wilson who paid the taxes

or who declared the homestead exemption.

31.   The Tax Code provides a family or single adult is entitled to an

exemption from taxation for the county purposes…” TAX CODE § 11.13.

Nowhere does the Tax Code prohibit Ms. Wilson from claiming a tax

exemption where she resides at the Lake Lane address. The State put on no

evidence that Wilson personally claimed the exemption, or that the

exemption must be asserted by a married couple jointly.             Therefore,

Plaintiff’s argument fails factually.      Legally, Plaintiff’s argument fails

because a homestead exemption is not conclusive on the matter.

32.   In a recent case, the court of appeals ratified the holding in Mills,

holding “whether a person resides in a particular county according to the

election code definition is a question of fact.” In re Kelly, 421 S.W. 3d, 913,

918 (Tex.App.—Tyler, 2014) citing Jordan v. Overstreet, 352 S.W. 2d,

296, 300 (Tex.App.—Beaumont 1961). The court in In re Kelly held the

one’s voting history is not conclusive evidence of one’s residency, but an

important factor. 421 S.W.3d at 917. The court also held that a homestead

exemption is equally inconclusive. The court held:



                                      24
      “A homestead designation may be relevant to resolution of a
      dispute concerning the person’s residence for purposes of the
      election code. However, no one factor is dispositive on the
      question of one’s intended residence. Therefore we cannot say
      that the document verifying Stone’s homestead exemption
      conclusively shows her ineligibility as a candidate for Judge.
      At most, Stone’s Williamson County voting history and the
      document verifying her 2014 Williamson County homestead
      exemption raise a fact issue concerning her residence for the
      relevant two-year period. These documents do not, either
      considered separately or read together conclusively establish
      that Stone is ineligible to be a candidate for Judge.”


33.   In 2010, the Beaumont Court of Appeals also held the a homestead

exemption is not conclusive on the issue stating: “a designation of a

homestead outside the voter’s district may be relevant to a trial court’s

resolution of a dispute concerning a voter’s residence.” McDuffee v. Miller,

327 S.W. 3d 808. 820 (Tex.App.—Beaumont 2010) The Beaumont court

cited Cramer v. Graham, holding maintaining a homestead on residence

outside the RUD district does not defeat a claim of residency. 264 S.W.2d

135, 138 (Tex.Civ.App.—San Antonio 1954).

34.   In conclusion, the State did not establish Wilson’s residence, as a

matter of law on any particular date, much less November 5, 2013.



                                      25
Evidence that Wilson resided within District II was offered and admitted

before the trial court. Thus, because of the contradiction in evidence, the

State cannot prevail on its legal sufficiency argument.



Response No. 4:

Appellant’s Factual Sufficiency Argument Fails Because State Cannot
Demonstrate the Jury Verdict was Against the Great Weight of the
Evidence.
-----------------------------------------------

35.      When a party challenges that factual sufficiency of an adverse finding

on which he had the burden of proof, he must demonstrate that the adverse

finding is against the great weight and preponderance of the evidence. Dow

Chem. Co.46 S.W. 3d at 242. The judgment will be reversed if, in light of

the entire record, the evidence supporting the finding is so weak or the

finding is so contrary to the overwhelming weight and preponderance of the

evidence as to be clearly wrong and manifestly unjust. Id. The court must

be mindful that the fact-finder is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. Golden Eagle Archery,

Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The courts indulge every

reasonable inference to support the judgment, crediting favorable evidence if

a reasonable fact-finder could, and disregarding contrary evidence unless a


                                                  26
reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W. 3d 802,

822 (Tex. 2005).

36.     At trial, Wilson testified he lived at 5600 West 34th Street in Houston

and moved there in the year 2012. 26 His driver’s license designated his

residence at 5600 W. 34th Street and was issued in May of 2012. 27 Wilson

testified to establish his residency he changed his voter’s registration, his

driver’s license, all of his individual and personal bank accounts, the joint

accounts, and his utilities bills to the residence.28 Wilson explained that he

wanted to establish his residence at 5600 W. 34th to be active in Houston

politics.29

37.     The property at 5600 W. 34th Street had a second floor apartment

which contained a fully furnished kitchen, bedroom, living area, closets and

a bathroom. 30 Wilson testified he lived there and spent the majority of my

time there. 31 Wilson testified that he sleeps at 5600 W. 34th Street five

nights a week and spends all day there. 32 Wilson then testified about his

specific activities at the 5600 address.33



26
   R.R. Vol. 3 Pg. 147 Ln 21- 148
27
   R.R. Vol. 5b Exhibit No. 2; Testimony R.R. Vol. 4. Pg. 31 Ln 22- Pg. 32
28
   R.R. Vol 4 Pg. 30 Ln 14 – Ln 21.
29
   R.R. Vol. 4 Pg. 18- 19
30
   R.R. Vol. 4 Pg. 44- Pg. 45. and Vol. 5B: Defendant Exhibits 33-41
31
   R.R. Vol. 4 Pg. 18- 19
32
   R.R. Vol. 54 Ln 20-24
33
   R.R. Vol. 4 Pg. 55 Ln 1 –13.


                                                  27
38.     Conversely, the property at 7307 Lake Lane is solely in the name of

his wife, Connie Wilson.34                Over a 13-year period, Wilson had run in

multiple elections including two mayor elections, a commissioner election,

and Houston Community College Trustee. Over the 13-year period, Wilson

had not declared the Lake Lane address his residence on his voter’s

registration application.35 Wilson’s Voter’s Registration History evidenced

Wilson had not designated the Lake Lane his residence going back to

1994. 36 Wilson testified that he has asked his wife to move into the Houston

city limits, but she refused.37

39.     Admitted into evidence where multiple exhibits evidencing that

Wilson intended 5600 W. 34 Street to be his residence. Admitted were

multiple bank statements,38 credit card statements, 39 utility statements,40

driver’s license, 41 multiple magazine subscriptions,42 and the State’s private

investigators report that showed Wilson was occupying the 5600 address

during the investigation.43 While the State correctly pointed out that some

of the Wilson’s exhibits don’t contain dates, they do show his intent, action,

34
   R.R. Vol. 4 Pg. 32 Ln 20- Pg. 33 Ln 6
35
   R.R. Vol. 4 Pg. 19 Ln 6-22;    Pg. 24 Ln 1 –12;    Pg. 47 Ln 8-15
36
   R.R. Vol. 5B Exhibit No. 48.
37
   R.R. Vol. 4 Pg. 24 Ln 13- Pg. 25 Ln 9.
38
   R.R. Vol. 5B Exhibit No. 7,8, and 9.
39
   R.R. Vol. 5B Exhibit 11, 60 and 61.
40
   R.R. Vol. 5B Exhibit 58 and 63.
41
   R.R. Vol 5B Exhibit No. 2
42
   R.R. Vol. 5B Exhibits 24-32.
43
   R.R. Vol. 5B Exhibit No. 71


                                                     28
and volition that the 5600 W. 34th Street be considered his permanent

residence. Furthermore, it was not Wilson’s obligation to prove 5600 W.

34th is his residence, it was the State’s burden to show the contrary.

40.   The documents admitted by the State do not show Wilson’s residence

on November 5, 2013, nor the preceding six-moth period.         Any inference

derived from the State’s exhibits must be inferred in favor of the jury

verdict.   Likewise, the exhibits admitted by Wilson must be inferred in

favor of the jury verdict. Factually, the State failed to place Wilson in the

Lake Lane house at any relevant time, or duration. The State offered no

evidence to contradict Wilson’s testimony that he spent five nights a week at

the 5600 W. 34th Street address.

41.   In conclusion, Wilson made every reasonable effort to establish the

5600 W. 34th Street his residence. It was Wilson’s action, volition, and

intent that the 5600 W. 34th Street be his residence. The jury unanimously

found the same. The State did not show that the jury verdict was against the

great weight and preponderance of the evidence.          Therefore, this court

should affirm the trial court’s judgment.




                                      29
Response No. 5:

State’s public policy argument should be denied on grounds that (1) it
failed to raise the issue in the trial court; (2) it failed to cite authority to
support its arguments; (4) the State’s argument, in part violates 42 U.S.
C. § 1983; and (4) it constitutes a collateral attach on the jury’s verdict.
-----------------------------------------------



42.    The State made multiple arguments that the jury verdict              and

judgment should be reversed based on public policy arguments. The various

arguments were not raised to the trial court, supported by authority, violate

42 U.S.C. § 1983, and constitute a collateral attack on the jury’s verdict.

Accordingly, the judgment should be affirmed.

43.    The State’s public policy arguments included: 1) Basic tenets of a

democracy and the Constitution of the United States require no taxation

without representation; 2) Elected officials should meet or exceed residence

standards students must meet for school attendance and sports teams; 3)

Persons should be denied the opportunity to claim and benefit from two

equal residences; 4) Democracy depends on the ethical behavior and honesty

from its elected officials; and 5) Opportunity existed for Wilson to run for a

position from his community rather than denying HCC District II

community voice. However, the State failed to raise these arguments to the



                                             30
trial court, and therefore waived error. Tex.R.App.P 33.1(a); Hall v. Lone

State Gas Co., 954 S.W.2d 174, 177 (Tex.App.—Austin 1997, pet denied).

Further, the State failed to support its argument with citations. The failure to

support its argument(s) with citations or authority, waives the error for

review. Trenholm v. Ratcliff, 646, S.W. 2d 927, 933 (Tex. 1983).

44.   Additionally, the State’s public policy arguments constitute a

collateral attack on the jury’s verdict and the law of residency. Texas

Election Code § 1.015 is the authority used to determine Wilson’s residency.

The jury was properly instructed on the law and unanimously determined

Wilson’s residence.    Thus, the State’s argument regarding “no taxation

without representation” and that Wilson should be denied the opportunity to

benefit from two residences is flawed from          the onset. Wilson is the

representative from District II, so the people are not deprive representation.

Secondly, Wilson has only one residence, and the jury resolved the question.

The State’s argument is nothing more than an attack on the jury verdict.

Next, the State argued that Wilson’s residency should meet or exceed

residency standards for students. This is an attack on Texas Election Code

§ 1.015 that prescribes the law of residency. If the Statute is flawed, the

State may repeal it, or amend it. Requesting the court of appeals to ignore




                                      31
the law in the name of public policy is an impermissible collateral attack on

the jury verdict and the law.

45.   Lastly, the State argued that Wilson, a Caucasian                 denies

representation to the African-American residents who live there is a racist

argument, and contravenes the Equal Protection Clause of the United State’s

Constitution.   The State’s argument implied that because District II is

predominantly African-American, it should be represented by another

African –American, as opposed to a Caucasian like Wilson. The State went

further to write, “Wilson’s evidence lacks proof of any interaction with the

members of the African-American community.” [ Pg. 19]. This argument is

a clear violation of the equal protection clause.

46.   In conclusion, the State’s brief is fundamentally flawed throughout.

The State erroneously attempted to persuade this Court that the burden was

on Wilson to establish his residency, as opposed to acknowledging that the

burden rested with the State. Next, the State simply disregarded its position

at trial and complained that the judge erred in failing to submit a jury charge

that requested the jury determine Wilson’s residence over a six-month

period. Thereafter, the State sought to include an ordinance on appeal that

was not admitted into evidence at trial. Finally, the State concluded its brief

by forwarding numerous arguments that were not presented to the trial



                                       32
court, including that District II should be represented by an African-

American, as opposed to Caucasian. Setting aside that State’s erroneously

arguments, the trial court’s judgment should be affirmed because the trial

court committed no reversible error, that State did not prove, as a matter of

law its contentions, and the verdict was not against the great weight of the

evidence so as to cause an injustice.

                                   Prayer

      Wilson prays that this Court affirm the trial court’s judgment.



                            Certificate of Service

      I certify that opposing counsel was electronically served the foregoing

brief on May 11, 2015 via Email at Barbara.Armstrong@coa.hctx.net.

                                        /s/ Keith Gross



Certificate of Compliance

      As required by TRAP 9.4, I certify that the number of words in this

documents is 5172 relying on the word count Microsoft Word used to

prepare this document.

                                        /s/ Keith Gross




                                        33
34
