
 











OPINION


No. 04-08-00561-CV

Rick FLORES,
Appellant

v.

Martin CUELLAR,
Appellee

From the 406th Judicial District Court, Webb County
Trial Court No. 2008-CVQ-775-D4
Honorable David Peeples, Judge Presiding (1)

Opinion by:	Karen Angelini, Justice

Sitting:	Karen Angelini, Justice
		Rebecca Simmons, Justice
		Steven C. Hilbig, Justice

Delivered and Filed:	August 27, 2008

AFFIRMED
	Rick Flores, the current Webb County Sheriff, appeals from a final judgment against him
in an election contest. See Tex. Elec. Code Ann. § 232.014 (Vernon 2003). We affirm.Factual and Procedural Background
	On April 8, 2008, a primary run-off election was held to select the Democratic nominee for
the office of Webb County Sheriff. Flores, the incumbent, was opposed by appellee Martin Cuellar.
In an election night vote count conducted by county election officials, Cuellar won the election by
a margin of 37 votes. In a subsequent recount conducted by the Democratic party, Flores won the
election by a margin of 133 votes. Then, in a court-supervised recount, Cuellar won the election by
a margin of 39 votes.	
	Flores filed an election contest challenging  the results of the court-supervised recount. Flores
claimed the results reported from the electronic voting devices were unreliable and could not be
utilized in determining the winner of the election. Flores asked the trial court to find the true
outcome of the election could not be determined and to order a new election.
	The election contest was tried to the court. The evidence presented at trial showed each
electronic voting device records the votes cast in two places--on a personal electronic ballot (PEB)
and a flash card. The total votes recorded on the PEBs and the flash cards should always be the same.
In the election at issue in this case, two of the electronic voting devices had a discrepancy between
the number of votes recorded on their PEBs and their flash cards. The discrepancy, or "mismatch"
as it was termed, occurred in precincts 231 and 255. The remaining 57 precincts showed no
mismatch between their PEBs and their flash cards.
	Flores offered the testimony of Dr. Giovanni Vigna, a computer scientist. Although Dr. Vigna
had never examined the electronic voting devices used in Webb County and was uncertain as to
whether the electronic voting devices were the same as ones he had studied, Dr. Vigna concluded
the mismatch in the PEBs and the flash cards revealed an inherent unreliability in the entire
electronic vote count for this election. Dr. Vigna did not confine his opinion to the electronic voting
devices in precincts 231 and 255, but extended his opinion to all of the electronic voting devices
used in Webb County. Dr. Vigna concluded that if there were problems with the devices in two
precincts, there were problems in all of the devices, regardless of whether the discrepancy was
caused by human error, hardware error, or software error. Dr. Vigna also pointed out that because
there was no printer attached to the devices and thus no "paper trail," there was no way to verify the
number of votes each candidate received.  Dr. Vigna surmised the discrepancy between the vote
counts in the PEBs and the flash cards in the devices used in precincts 231 and 255, rendered the
vote count for each candidate unreliable. Thus, Dr. Vigna concluded that the true outcome of the
election could not be determined.
	The trial court issued findings of fact and conclusions of law. The pertinent findings are: 
5. There were no imperfections in the voting machines, or in the count of the
machine votes, that affected the outcome of the election.

6. The election-day count of the machine votes in precincts 231 and 255 was
accurate, that count is accepted by the court as the true vote. [] But even if the
machine count in precincts 231 and 255 on election day was not accurate, and the
count at the judicial recount (from the machine "flash card" records) was accurate,
that would benefit Flores by only 9 votes, which would be insufficient to affect the
outcome of the 42-vote election.

7. The court was not persuaded by Dr. Vigna's testimony that the accuracy of the
voting machines should be questioned or that the machine-vote results were tainted.

8. The court was not persuaded by Dr. Vigna's opinion that the difference between
the election-day machine count and the judicial recount in precincts 231 and 255
casts doubt on the machine vote in the other 57 districts. That argument is
respectfully rejected. 

9. The argument that all of the election-day machine vote in precincts 231 and 255
should be discarded is respectfully rejected. []







The conclusions of law are:

1. There were no irregularities in this election that affected the outcome.

2. Because the votes have been accurately counted and the 10 illegal votes subtracted
from the candidate who received the votes, the true result of the election is known
and a new election should not be ordered. 

3. Martin Cuellar won the election for sheriff in the Democratic Primary Run-off
election by 42 votes.

Election Contest
	The purpose of an election contest is to determine whether the outcome of an election is
correct. Tex.  Elec. Code  Ann. § 221.003(a) (Vernon 2003); Rodriguez v. Cuellar, 143 S.W.3d
251, 260 (Tex. App.--San Antonio 2004, pet. dism'd). To overturn an election, the contestant must
prove by clear and convincing evidence that voting irregularities materially affected the election
results. Tiller v. Martinez, 974 S.W.2d 769, 772 (Tex. App.--San Antonio 1998, pet. dism'd  w.o.j.);
see also Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex. App.--San Antonio 1992, writ dism'd 
w.o.j.). To prove the outcome was materially affected, the contestant must show that illegal votes
were counted or an election official prevented eligible voters from voting, failed to count legal votes
or engaged in other fraud, illegal conduct, or mistake. Tex.  Elec. Code  Ann. § 221.003(a)  (Vernon
2003). The outcome of an election is "materially affected" when a different and correct result would
have been reached in the absence of the irregularities. Willet v. Cole, 249 S.W.3d 585, 589 (Tex.
App.--Waco 2008, no pet.). 
	An election contestant's burden is a heavy one, and the declared results will be upheld in all
cases except when there is clear and convincing evidence of an erroneous result. Id., 249 S.W.3d at
589. The clear and convincing standard requires more proof than the preponderance of the evidence
standard in ordinary civil cases. Id. That standard is the degree of proof that will produce in the mind
of the trier of fact a "firm conviction or belief as to the truth of the allegations to be proved." Id.  
	"The standard of review in an appeal from a judgment in an election contest is a
determination whether the trial court abused its discretion." Tiller, 974 S.W.2d at 772. 
Expert Opinion Testimony
	 Uncontroverted expert testimony may be regarded as conclusive if the nature of the subject
matter requires the factfinder to be guided solely by the opinion of experts and the evidence is
otherwise credible and free from contradictions and inconsistency. Uniroyal Goodrich Tire Co. v.
Martinez, 977 S.W.2d 328, 338 (Tex. 1998); Novosad  v. Mid-Century Ins. Co., 881 S.W.2d 546,
550 (Tex. App.--San Antonio 1994, no writ), abrogated on other grounds, Brainard v. Trinity
Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006). However, an expert's testimony may be
contradicted by the testimony of other witnesses or by cross-examination of the expert witness.
Gober v. Wright, 838 S.W.2d 794, 797 (Tex. App.--Houston [1st Dist.] 1992, writ denied),
abrogated on other grounds, State Farm Fire & Cas. Co. v. Morua, 979 S.W.2d 616 (Tex. 1998).
	Dr. Vigna testified the mismatch between the PEBs and the flash cards in the devices in
precincts 231 and 255 revealed an inherent unreliablity in the entire electronic vote count which
could not be remedied because of the absence of an attached printer to verify the electronically
recorded vote. Dr. Vigna concluded that because there was a mismatch in two electronic devices,
there was necessarily a problem with all 59 devices and therefore the reliability of all of the
electronic devices was in question. Dr. Vigna suggested the mismatch was analogous to a situation
in which a person discovers his bank account is missing $23.00. Dr. Vigna submitted that such a
banking error would make him "really really untrustworthy of the banking system altogether."
Secondly, Dr. Vigna speculated the mismatch could also indicate a failure to accurately register the
electronic votes for the proper candidate. The only remedy, in Dr. Vigna's opinion, was to conduct
another run-off election. 
	Flores contends the trial court was required to accept the opinions of Dr. Vigna concerning
the unreliability of the electronic voting devices and the need for a new election. We disagree. Even
if the nature of the subject matter did require the trial court to be guided solely by the opinion of
experts, the trial court could have properly concluded Dr. Vigna's expert opinions were not
otherwise credible and free from contradictions and inconsistency.  See  Novosad, 881 S.W.2d at
550; Gober, 838 S.W.2d at 797. The trial court could, and apparently did, consider portions of Dr.
Vigna's own testimony that undercut his conclusions and opinions that the electronic voting devices
were unreliable and that the outcome of the election could not be determined. The trial court could
also, and apparently did, consider other evidence that countered Dr. Vigna's testimony.
	"[A]lthough expert opinion testimony often provides valuable evidence in a case, 'it is the
basis of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that
can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a
credentialed witness.'" Coastal Transport Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d
227, 232 (Tex. 2004) (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)). "Opinion
testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make
the existence of a material fact 'more probable or less probable.'" Id. "It is peculiarly within the
province of the [factfinder] to weigh opinion evidence, taking into consideration the intelligence,
learning, and experience of the witness and the degree of attention which he gave the matter."
Coxson v. Atlanta Life Ins. Co.,179 S.W.2d 943, 945 (Tex. 1944). 
	Here, Dr. Vigna admitted he had not examined or tested any of the machines used in Webb
County. Nevertheless, he speculated it was "very very likely that the machines used in Webb County
[were] extremely similar or identical" to the ones he had previously tested. Thus, Dr. Vigna's
opinions were based in large part on the assumption the electronic voting devices were extremely
similar or identical to the ones he had previously tested. Because Dr. Vigna's testimony was based
on speculation, the trial court was not required to accept this evidence. 
	Next, Dr. Vigna admitted he did not know the cause of the mismatch between PEB and flash
card vote totals and stated there could be an "infinite" number of causes ranging from human error
to hardware to software. Dr. Vigna stated that with more investigation and time he could have
determined the most probable cause of the mismatch. In evaluating the weight to be given Dr.
Vigna's testimony, the trial court could have properly taken into account the limited degree of
attention supporting his opinions and conclusions. 
	Finally, Dr. Vigna concluded the mismatch in the electronic voting devices in precincts 231
and 255 called into question not only the results from these two devices, but rendered the remaining
57 devices unreliable. Dr. Vigna speculated the discrepancy between the PEBs and the flash cards
in the devices in precincts 231 and 255 could be indicative of vote "switching," that is, when a voter
selected a particular candidate the vote would register for the opposing candidate. These conclusions
were unsupported by any analysis or reasoning. 
	Dr. Vigna's testimony was also countered by the testimony of the Webb County Elections
Administrator, Oscar Villarreal. Villarreal testified the same electronic voting devices were used in
a subsequent election, and no problems or discrepancies occurred. Villarreal also testified the
signature rosters could be used to provide a "check[]and balance[]" on the vote count. (2) Villarreal
testified that here the total number of PEBs recorded on the devices in precincts 231 and 255, plus
the total number of paper ballots in precincts 231 and 255,  corresponded almost perfectly to the total
number of voters on the signature rosters in both precinct 231 and 255. The trial court was entitled
to rely on Villarreal's testimony.
	Ultimately, the trial court found that Cuellar won the election by a margin of 42 votes. The
trial court found the election day count derived from the PEBs in precincts 231 and 255 was accurate
and accepted that count as the true vote. The trial court also found that even if the electronic voting
device count in precincts 231 and 255 on election day was not accurate, and the count from the court-supervised recount from the flash cards was accurate, that would benefit Flores by only 9 votes,
which would be insufficient to affect the outcome of the 42-vote election.
Conclusion
	To overturn this election, Flores was required to prove by clear and convincing evidence that
voting irregularities materially affected the election results. Because Flores did not establish by clear
and convincing proof that voting irregularities materially affected the outcome of the election, the
trial court did not abuse its discretion in refusing to order a new election. See Willet, 249 S.W.3d at
589; Tiller, 974 S.W.2d at 772. The judgment of the trial court is therefore affirmed.

	 In light of the expedited nature of this appeal, this court will not entertain rehearing motions.
See Tex. Elec. Code Ann. § 232.014(e) (Vernon 2003). The Clerk is directed to issue the mandate
at the same time as our judgment affirming the trial court's judgment. Tex. R. App.  P. 18.1(c).

 							Karen Angelini, Justice





1. Sitting by assignment.
2. Signature rosters are required by the Texas Election Code. "A signature roster shall be maintained by an
election officer at the polling place." Tex. Elec. Code Ann. 63.002(a) (Vernon 2003). "A voter who is accepted for
voting must sign the roster before the voter is permitted to vote." Id. at 63.002(b). 

