                                                                                             ACCEPTED
                                                                                        13-14-00581-CV
                                                                          THIRTEENTH COURT OF APPEALS
                                                                                CORPUS CHRISTI, TEXAS
                                                                                    1/5/2015 8:52:04 PM
                                                                                      DORIAN RAMIREZ
                                                                                                 CLERK

                               NO. 13-14-00581-CV

                                                   FILED IN
                                           13th COURT OF APPEALS
                 IN THE COURT OF APPEALSCORPUS
                                         FOR THECHRISTI/EDINBURG, TEXAS
                                            1/5/2015 8:52:04 PM
              THIRTEENTH JUDICIAL DISTRICT OF   TEXAS
                                             DORIAN E. RAMIREZ
               AT CORPUS CHRISTI - EDINBURG, TEXAS  Clerk
__________________________________________________________________
                      GUADALUPE RIVERA
                           APPELLANT

                                     VS.
                                LETICIA LOPEZ
                                  APPELLEE
______________________________________________________________________________

                                  NO. C-6914-13-G

  ON APPEAL FROM THE 370TH DISTRICT COURT, HIDALGO COUNTY, TEXAS,
        THE HONORABLE MENTON MURRAY, JR., JUDGE PRESIDING
_____________________________________________________________________________________

  CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S BRIEF
_____________________________________________________________________________________




                                                    Gilberto Hinojosa
                                                    LAW OFFICE OF GILBERTO
                                                    HINOJOSA & ASSOCIATES, P.C.
                                                    622 E. St. Charles St.
                                                    Brownsville, Texas 78520
                                                    Tel. (956)544-4218
                                                    Fax (956) 544-1335
                                                    Attorney for Appellant
                CERTIFICATE OF PARTIES AND COUNSEL


The names of the parties and their respective attorneys in these proceedings are as
follows:



Appellant:                                          Lupe Rivera



Attorneys for Appellant :                           Gilberto Hinojosa
                                                    LAW OFFICE OF GILBERTO
                                                    HINOJOSA & ASSOCIATES,
                                                    P.C.
                                                    622 E. St. Charles St.
                                                    Brownsville, Texas 78520
                                                    Tel. (956)544-4218
                                                    Fax (956) 544-1335
                                                    Attorney for Appellant


Appellee:                                           Leticia Lopez


Attorneys for Appellee:                             Jerad Wayne Najvar
                                                    NAJVAR LAW FIRM
                                                    4151 Southwest Freeway,
                                                    Suite 625
                                                    Houston, TX 77027
                                                    Tel. (281) 404-4696
                                                    Cell: (281) 684-1227




                                         ii
                                           TABLE OF CONTENTS


Certificate of Parties and Counsel ........................................................................ii

Table of Contents ...................................................................................................iii

Index of Authorities ..............................................................................................iv

Statutes....................................................................................................................iv

I.     Statement of Facts ..........................................................................................1
II. Summary of the Argument.............................................................................2
III. Arguments and Authorities ............................................................................5


A.       Cross Appellee’s Response To Cross - Appellant’s Issue No. 1a and 3.....5
B.       Cross - Appellee’s Response to Cross - Appellant’s Issue No. 1b............28
C.       Cross - Appellee’s Response to Cross - Appellant’s Issue No.2 ..............31
D.       Cross - Appellee’s Reply to Cross - Appellant’s Issue No 4.....................33



IV.      Conclusion....................................................................................................35




                                                              iii
                                       INDEX OF AUTHORITIES

CASES

Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983)...........................................29

Fields v. E. E. Cotton, 383 S.W.2d 84 (Civ.App.-Houston - 1964, no writ)..........6,7

Flores v. Fourth Court of Appeals,777 SW 2d. 38, 41-41, (Texas 1989).........26,31

Gonzalez v. Villarreal, 251 S.W.3d 763, 775-76 (Tex.App.-Corpus Christi 2008,
pet. dism’d)....................................................................................10,13,17,27,29,31

In Re Peacock, 2014 WL 316708 (Tex.App.-Tyler 2014)...................................6,22

Johnson v. Ventling, 2013 WL 6730043 (Tex. App. Corpus Christi 2013).......26,31

Miller v. Hill, 698 S.W.2d 372, 375 (Tex.App.-Houston [14th Dist.]
1985...............................................................................................................13,18,24

Mills v. Bartlett, 377 S.W.3d 636, 637 (Tex. 1964).....................................,6,7,11,20

Royalty v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-Houston 1967, writ ref’d.
n.r.e.)...................................................................7,10,11,12,13,15,16,17,21,24,27,29

Simmons v. Jones, 838 S.W.2d 298, 301 (Tex.App.-El Paso)...............................6,7

Solis v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-San Antonio 1954, pet.
ref’d).............................................................7,10,11,12,13,15,16,17,21,24,27,29, 31

STATUTES

Texas Elections Code Section 1.015.................................................................10,11

Texas Elections Code Section 11.005...............................................................14,20

OPINIONS

Texas Attorney General Opinion, No GA-1041, February 4, 2004...................15

                                                            iv
                               NO. 13-14-00581-CV


                   IN THE COURT OF APPEALS FOR THE
           THIRTEENTH JUDICIAL DISTRICT OF TEXAS
             AT CORPUS CHRISTI - EDINBURG, TEXAS
__________________________________________________________________
                      GUADALUPE RIVERA
                           APPELLANT

                                     VS.
                                LETICIA LOPEZ
                                  APPELLEE
______________________________________________________________________________

                                NO. C-6914-13-G
    ON APPEAL FROM THE 370TH DISTRICT COURT, HIDALGO
 COUNTY, TEXAS, THE HONORABLE MENTON MURRAY, JR., JUDGE
                       PRESIDING
 ___________________________________________________________________________________

  CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S BRIEF
_____________________________________________________________________________________

TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

         NOW COME, GUADALUPE RIVERA, Cross-Appellee in the above

styled and numbered cause, and presents this his Response to Cross-Appellant’s

Brief:

                                         I.

                            STATEMENT OF FACTS

     Cross-Appellee’s Statement of Facts is set out in Appellant’s Brief. On

                                         1
numerous occasions throughout it’s brief, Cross-Appellant misrepresents to this

Court the findings of fact made by the trial court on the court’s rulings challenged

by Cross-Appellant in the cross-appeal. The trial court made specific Findings of

Fact and Conclusions of Law in support of its rulings in this case. Court’s

Findings of Fact and Conclusions of Law, Supp CR 24-32. Cross-Appellant filed

additional proposed findings of fact and conclusions of law which the trial court

declined to enter. Contestant’s Request for Additional and Amended Findings of

Fact and Conclusions of Law, Supp CR 33-38; and Trial Judge Email, Supp CR

39. Therefore, only those specific findings of fact and conclusions of law entered

by the trial court is what must guide this Court in determining no evidence and

sufficiency of the evidence points of error made by Cross-Appellant. Cross-

Appellee will address each of those misrepresentations of the trial court’s finds

made by Cross-Appellant at each response to each Issue brought Cross-Appellant.

                                          II.

                       SUMMARY OF THE ARGUMENT

      The trial court did not commit error in overruling Cross-Appellant’s

residency challenge to Illiana Guerrero, and Guadalupe Rivera, Jr.in that Cross-

Appellant failed to prove by clear and convincing evidence that said voters did not

reside in District 5 of the Weslaco City Commission. There was more than

sufficient evidence offered at trial to show that both Illiana Guerrero, and her

husband, Guadalupe Rivera, Jr., had a present intention to reside at Mr. Rivera’s


                                          2
childhood home and the trial court was within its discretion in finding that Cross-

Appellant failed to meet her burden to show the negative of these voters’

intentions.


      With respect to voter, Esteban Martinez, the trial court did not commit error

in failing to find by clear and convincing evidence that Martinez voted for Rivera

in the District 5 race in that the trial court was within its discretion to chose to not

believe that part of the testimony of Mr. Martinez. Given that Martinez was called

twice to testify in this case by Cross-Appellant and that much of his testimony was

incredible, the trial court’s findings were not error as a matter of law.


       The trial court did not commit error in deducting the votes of Tomasa

Cavazos, Jose Luis Martinez, Sr., and Jose Luis Martinez, Jr. from Leticia Lopez’s

final vote count, because there is clear and convincing evidence to support the

finding that they did not reside in District 5 of the Weslaco City Commission and

voted for Leticia Lopez. The Martinez’ were subpoenaed and called by Cross-

Appellant and the reasons given by the Martinez’ for voting for Cross-Appellant

were legitimate and reasonable under the circumstances, i.e. that Cross-Appellant

had come to the family’s assistance at the time of the death of their close relative.

The same with Mrs. Cavazos. She likewise testified that Cross-Appellant had

helped her during her time of need, i.e. the tragic death of her daughter.



                                            3
      The trial court did not commit error in overruling Cross-Appellant’s

residency challenge to Delma Cadena, Alexia Dinah Chavez, Alyssa Domitria

Chavez, Delma Ann Chavez, Diana Pena, Valerie Jadine Pena, Illiana Yvonne

Rivera, Raul Rivera, Sr., and Raul Rivera, Jr. in that Cross-Appellant failed to

prove by clear and convincing evidence that said voters did not reside in District 5

of the Weslaco City Commission. None of these voters were subpoenaed or called

to testify at trial by Cross-Appellant. Only Delma Cadena testified and she was

called by Cross-Appellee. The testimony of Ms. Cadena, as well as Hortencia

Cuellar, was that the place of registration was their family home and their

residence and it had been for many years. Cross-Appellant’s evidence to the

contrary was minimal and not enough to meet their clear and convincing burden of

proof required to overcome the presumption that the residence of the voters was at

the location where they were registered.


      Finally, the trial court did not commit error in deducting four undervotes,

rather than one from the total number of illegal but undetermined votes cast in the

election because Cross-Appellant failed to prove by clear and convincing evidence

that said undetermined voters were not among the undercounted undetermined

voters. The trial court was asked to make a finding that only one or two votes

should be deducted from the total number of undetermined votes based upon the

alleged undercount and it declined to do so. Given the scant evidence that the


                                           4
Cross-Appellant offered on this issue, the trial court was well within its discretion

to find that it would only deduct four votes from the undetermined votes as a result

of the undercount.


                                         III.

                      ARGUMENTS AND AUTHORITIES

 A. CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S ISSUE
NO. 1a and 3.

The trial court did not commit error in overruling Cross-Appellant’s residency
challenge to Illiana Guerrero, and Guadalupe Rivera, Jr. in that Cross-Appellant
failed to prove by clear and convincing evidence that said voters did not reside in
District 5 of the Weslaco City Commission.

The trial court did not commit error in overruling Cross-Appellant’s residency
challenge to Delma Cadena, Alexia Dinah Chavez, Alyssa Domitria Chavez,
Delma Ann Chavez, Diana Pena, Valerie Jadine Pena, Illiana Yvonne Rivera,
Raul Rivera, Sr., and Raul Rivera, Jr. in that Cross-Appellant failed to prove by
clear and convincing evidence that said voters did not reside in District 5 of the
Weslaco City Commission.

1. Residence under Texas Elections Law

      Section 1.015, of the Texas Elections Code defines Residence as follows:

      “(a) In this code, “residence” means domicile, that is, one’s home and fixed
      place of habitation to which one intends to return after any temporary
      absence.
      (b) Residence shall be determined in accordance with the common-law rules,
      as enunciated by the courts of this state, except as otherwise provided by this
      code.
      (c) A person does not lose the person’s residence by leaving the person’s
      home to go to another place for temporary purposes only.



                                          5
      (d) A person does not acquire a residence in a place to which the person has
      come for temporary purposes only and without the intention of making that
      place the person’s home.” Tex.Elec.Code Section 1.015

      The Texas Supreme Court established the standard by which residence will

be determined:

      “The term ‘residence’ is an elastic one and is extremely difficult to define.
      The meaning that must be given to it depends upon the circumstances
      surrounding the person involved and largely depends upon the present
      intention of the individual. Volition, intention and action are all elements
      to be considered in determining where a person resides and such
      elements are equally pertinent in denoting the permanent residence or
      domicile.
      ** *
      . . .Neither bodily presence alone nor intention will suffice to create the
      residence but when the two coincide at that moment the residence is fixed
      and determined. There is no specific length of time for the bodily
      presence to continue.

Mills v. Bartlett, 377 S.W.3d 636, 637 (Tex. 1964).

      Courts have long held that even prolonged absences from the declared

residence do not prevent a person from legally establishing that location for

residency purposes, as long as there is an intention to eventually return to the

declared residence. Fields v. E. E. Cotton, 383 S.W.2d 84 (Civ.App.-Houston -

1964, no writ); Simmons v. Jones, 838 S.W.2d 298, 301 (Tex.App.-El Paso).

Evidence such as a current declared homestead exemption in another county is not

enough to destroy residency in the county where a voter or candidate is declaring

his/her residency. In Re Peacock, 2014 WL 316708 (Tex.App.-Tyler 2014).




                                          6
Evidence such as where a person receives his mail is a factor in determining the

residence of a voter. Fields v. E. E. Cotton, supra.

      Finally, and most importantly in this case, the contestant has the burden of

proving by clear and convincing evidence the negative of every theory on which

the vote could have been legal. Royalty v. Nicholson, 411 S.W.2d 565

(Tex.Civ.App.-Houston 1967, writ ref’d. n.r.e.); Solis v. Martinez, 264 S.W.2d 956

(Tex.Civ.App.-San Antonio 1954, pet. ref’d). In this case, that required Cross-

Appellant Lopez to offer clear convincing proof that the challenged voter did not

have the present intention of residing at the place where he/she was registered to

vote or did not have the intention of eventually returning to the residence where

he/she was registered to vote after a temporary or prolonged absence. In other

words, under the Texas law a voter can still have the “present intention” to have a

certain address as his/her residence, Mills v. Bartlett, 377 S.W.3d 636, 637 (Tex.

1964), even if there is evidence that person has been living or sleeping in another

location. Fields v. E. E. Cotton, 383 S.W.2d 84 (Civ.App.-Houston - 1964, no

writ); Simmons v. Jones, 838 S.W.2d 298, 301 (Tex.App.-El Paso 1992). Under

that circumstance, if a voter registered in a certain location temporarily resides in

another location, his/her vote is legal. To overcome that presumption, Simmons v.

Jones, 838 S.W.2d 298, 301 (Tex.App.-El Paso 1992), Cross-Appellant Lopez

needed to offer clear and convincing proof of the negative of that theory that a

person’s vote was otherwise legal, i.e. in this case, that in fact the voter had no


                                           7
intention of returning to his permanent residence after a temporary or prolonged

absence.

2. Cross-Appellant Lopez failed to meet her burden to show by clear and
convincing evidence that Illiana Annette Guerrero’s vote should be
invalidated because allegedly she was not a resident of District 5 at the time of
the election in question.

      Illiana Annette Guerrero testified that she is married to Lupe Rivera, Jr.

Deposition of Illiana Annette Guerrero, RR3 p 247, line 9-11. She stated that she

lives with him in a rented house and that they are living in the house that they rent

“just in the meantime.” Id at p 248, line 11-17. She testified that when she

registered to vote she mistakenly listed the 316 West Lost Toritos address, rather

than her true residence and address, 716 North Padre. Id at p 251, line 6-15. She

testified that “[b]ecause we don’t plan to live at 700 East 8th for a very long time,

and [Lupe Rivera, Jr. is her] husband, and [she is] going to use the address that he

uses. We can’t just have different addresses on legal documents.” Id at line 16-21.

She testified that the reason that she accidentally used the Torritos street address

was because “there’s times where my children are dropped off when we’re here at

this [Torritos] address, and their dad has to drop them off by a certain time, and

we’re hanging out there having dinner, so I’ll text him this address [ Torritos] to

have them there, and I mean, that address just stuck, and it’s the address I put on.”

Id at p253, line 17-24.




                                           8
      Illiana Annette Guerrero testified that her “residence is the residence of [her]

husband” and that residence is “716 North Padre Street, Weslaco,.” Id at p 277,

line 13-18. She further testified that “when [she] voted in this election, [she was]

voting in the precinct that [she lived] in.” Id at line 19-21. She testified that she

had been married before and that when she was married before she considered her

residence her then husband’s residence. Id at p 276, line 7-16. She considered her

home where her heart is and her heart was with her husband. Id at p 279, line 9-11.

      Section 11.005 of the Texas Elections Code provides:

      “If a voter who is erroneously registered in an election precinct in which the
      voter does not reside is permitted to vote by an election officer who does
      not know of the erroneous registration, the votes for the offices and
      measures on which the voter would have been eligible to vote in the voter’s
      precinct of residence are valid unless the voter intentionally gave false
      information to procure the erroneous registration.” Tex.Elec.Code Section
      11.005


      Illiana Annette Guerrero’s testimony that she was married to Lupe Rivera, Jr.

was not rebutted. Her testimony was that he was a resident of 716 North Padre

Street, Weslaco, Texas - the same residence as his father, Lupe Rivera, Sr. That

residence in the same Weslaco City Commission District 5 as the residence where

she was mistakenly registered, i.e. 316 West Torritos. There was no evidence that

she “intentionally gave false information to procure the erroneous registration.”

The only evidence offered at trial was that she mistakenly wrote the wrong address

on her voter registration application. Therefore, under Section 11.005 of the Texas


                                           9
Elections Code, Illiana Annette Guerrero’s ballot for the November 2013 election

for Weslaco City Commission, District 5 was valid. Appellant provided no

evidence, much less clear and convincing evidence, to overcome the presumption

that her ballot should be counted. Royalty v. Nicholson, 411 S.W.2d 565

(Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956

(Tex.Civ.App.-San Antonio 1954, pet. ref’d).

      Reviewing all the evidence “in the light most favorable to the finding” of the

trial court that Cross-Appellant had not met her burden by clear and convincing

proof that Illiana AnnetteGuerrero was not a resident of District 5 and giving

“appropriate deference to the factfinder’s conclusions” this Court “must assume

that the [trial court] resolved disputed facts in favor of its finding” and therefore

affirm the trial court’s ruling on this Issue. Gonzalez v. Villarreal, 251 S.W.3d

763, 775-76 (Tex.App.-Corpus Christi 2008, pet. dism’d); Royalty v. Nicholson,

411 S.W.2d 565 (Tex.Civ.App.-Houston 1967, writ ref’d, n.r.e.) (Contestant in an

election contest has the burden of proving by clear and convincing evidence the

negative of every theory on which the vote could have been legal.); See also,

Solis v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-San Antonio 1954, pet. ref’d.).

3. Cross-Appellant failed to meet her burden to show by clear and convincing
evidence that Guadalupe Rivera, Jr. was not a legal resident of 716 N. Padre,
Weslaco, Texas and District 5 of the Weslaco City Commission.

      Again, Cross-Appellant Lopez was required to prove by clear and

convincing evidence that in fact Guadalupe Rivera, Jr. did not have a present

                                           10
intention of residing at 716 N. Padre, Weslaco, Texas, Mills v. Bartlett, 377 S.W.3d

636, 637 (Tex. 1964), or that he had no intention of returning to that residence after

a brief or prolonged absence. Royalty v. Nicholson, 411 S.W.2d 565

(Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956

(Tex.Civ.App.-San Antonio 1954, pet. ref’d).

      At no time was Guadalupe Rivera, Jr. called to testify at the time of the trial

in this case. Master Index, Alphabetical Index of Witnesses, RR1, 10-13.

Although, Cross-Appellant makes much to do about his claim that he was not able

to serve Mr. Rivera, it is difficult to see how Cross-Appellant could have exercised

due diligence to actually accomplish service when he had at least 5 months to serve

Mr. Rivera. Mr. Rivera works full-time at the offices of Hidalgo County

Commissioner, Precinct One, which are public offices and he should have been

easy to serve.

       Other than excerpts taken out of context from the deposition of Illiana

Guerrero, the only evidence Cross-Appellant offered on Guadalupe Rivera’s

supposed non-residency was the following:

      As discussed before, Illiana Guerrero Rivera testified she lives with her

husband, Guadalupe Rivera, Jr. in a rented house and that they are living in the

house that they rent “just in the meantime.” Deposition of Illiana Annette

Guerrero, RR3 p 247, line 9-11. She testified that when she registered to vote she

mistakenly listed the 316 West Lost Toritos address, rather than her true residence


                                          11
and address, 716 North Padre. Id, p 251, line 6-15. She testified that “[b]ecause

we don’t plan to live at 700 East 8th for a very long time, and [Lupe Rivera, Jr. is

her] husband, and [she is] going to use the address that he uses. We can’t just have

different addresses on legal documents.” Id, line 16-21. Illiana Annette Guerrero

also testified that her “residence is the of [her] husband” and that residence is “716

North Padre Street, Weslaco.” Id, p 277, line 13-18.

      Cross-Appellee Guadalupe Rivera testified that his son, Guadalupe Rivera,

Jr. “has always considered my home his home.” Testimony of Lupe Rivera, RR4, p

200, line 13-17. He testified that Lupe, Jr. lives at 716 N. Padre “off and on.” Id.

Although “he rents a home ‘pero’ my house is where he have always considered

his - - his primary residence.” Id, line 21-24.

      Cross-Appellant offered no rebuttal evidence to the testimony of Illiana

Guerrero and Cross-Appellee Rivera,, other than excerpts from the testimony of

both witnesses taken out of context. Cross-Appellant failed to provide the

necessary clear and convincing evidence necessary to rebut the presumption that

Guadalupe, Rivera, Jr.’s vote or ballot was valid. Royalty v. Nicholson, 411 S.W.2d

565 (Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d

956 (Tex.Civ.App.-San Antonio 1954, pet. ref’d).

      Reviewing all the evidence “in the light most favorable to the finding” of the

trial court that Cross-Appellant had not met her burden by clear and convincing

proof that Guadalupe Rivera, Jr. was not a resident of District 5 and giving


                                          12
“appropriate deference to the factfinder’s conclusions” this Court “must assume

that the [trial court] resolved disputed facts in favor of its finding” and therefore

affirm the trial court’s ruling on this Issue. Gonzalez v. Villarreal, supra; Royalty

v. Nicholson, supra; See also, Solis v. Martinez, supra.

4. Cross-Appellant offered no evidence that Guadalupe Rivera, Jr. voted in
the election being contested.

      Additionally, Cross-Appellant failed to offer any proof that Guadalupe

Rivera, Jr. in fact voted in the election being contested. Therefore, as a matter of

law Cross-Appellant failed to meet her burden that this challenged voter voted in

the election being contested and this Court must affirm the trial court’s decision to

overrule Cross-Appellant’s challenge to Guadalupe Rivera, Jr. Miller v. Hill, 698

S.W.2d 372, 375 (Tex.App.-Houston [14th Dist.] 1985, writ dism’d w.o.j., 714

S.W.2d 313 (Tex.1986) (per curiam).

5. Cross-Appellant has failed to meet her burden to show by clear and
convincing evidence that the following voters were not legal residents of 1518
E. 6th St., Weslaco, Texas, and District 5 of the Weslaco City Commission: (a)
Delma Cadena, (b) Alexia Dinah Chavez, (c) Alyssa Domitria Chavez, (d)
Delma Ann Chavez, (e) Diana Pena, and (f) Valerie Jadine Pena.

      Cross-Appellant Lopez did not call any of these challenged voters to testify,

in in person or by deposition. Master Index, Alphabetical Index of Witnesses,

RR1, 10-13. The only person called was Delma Cadena and she was subpoenaed

and called by Cross-Appellee Rivera. The following was the evidence at trial

which the trial court based its finding that Cross-Appellant had failed to meet her


                                           13
burden by clear and convincing evidence that these challenged voters were not

residence of District 5:

      (a) Delma Cadena - She testified that the only residence that she had ever

had was the residence at 1518 E. 6th St. RR5, p 67, line 12-25. She testified that

she had always considered 1518 E. 6th her permanent residence. Id, p 81, line

9-12. She testified that she and her daughters considered 1518 E. 6th St. their

residence because that is where their “heart is.” “That’s their home. That’s our

home.” Id, p 81, line 18- p 82, line 12. She testified that she had never owned

property and that she had always rented. She testified that she had been registered

to vote at the residence at 1518 E. 6th St. Id, line 18--20. She testified that she kept

clothes there and furniture. She testifies that she sometimes sleeps there and that

she cares for her sick elderly parents there at the residence, 1518 E. 6th St. She

also testified that her daughters often sleep there on occasions because they too

consider it their home. She testified that she had never declared a residence

anywhere else - her entire life. Id, p 67, line 19-25; p 68, line 13-15.    She testified

that she had been a candidate against Lupe Rivera in the election for City

Commissioner, District 5 in the prior election. Id, p 77, line 25- p 78, line 12. She

testified that her drivers license listed her address as 1518 E. 6th St. Id, p 78, line

20-21.

      Mrs Cadena also provided testimony that the house that she currently rents is

located in the same Weslaco City Commission District 5 as the residence where she


                                           14
she is registered to vote. RR5, p 89, line 1-8; p 90, line 8-15. There was no

evidence that she “intentionally” gave false information to procure the erroneous

registration. The only evidence offered at trial was that she believes that her true

permanent residence is at 1518 E. 6th St. . Therefore, under Section 11.005 of the

Texas Elections Code, Delma Cadena’s ballot for the November 2013 election for

Weslaco City Commission, District 5 was valid. Tex.Elec.Code Section 11.005.

Cross-Appellant has provided no evidence, much less clear and convincing

evidence, to overcome the presumption that her ballot should be counted. Royalty

v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis

v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-San Antonio 1954, pet. ref’d).

(b) Alexia Dinah Chavez; (c) Alyssa Domitria Chavez; and (d) Delma Ann

   Chavez - Since Delma Cadena testified that all of her daughters reside with

   her, the same testimony provided by Delma Cadena described above supports

   Cross-Appellee’s argument that Cross-Appellant has failed to meet her burden

   by clear and convincing evidence to overcome the presumption that the votes or

   ballots of Alexia Dinah Chavez, Alyssa Domitria Chavez and Delma Ann

   Chavez votes are valid. Additionally, Delma Cadena’s testified that the reason

   that DPS records show that Alexia Dinah Chavez’ address was 910 Fasken

   Boulevard, Laredo, Texas, was because she was a student in Laredo at that

   time, but that her daughter’s permanent residence has always been with her.

   RR5, p 71, line 10- p 72, line 8. See Attorney General Opinion No. GA-0141,


                                          15
February 4, 2004 (“[O]ne student who is living in a dormitory, and is therefore

physically present for purposes of voter registration, yet who intends his residence

to remain the same as that of his parents, can permissibly register to vote in the

county of his parent’s residence.”). Again, Cross-Appellant has provided no

evidence, much less clear and convincing evidence, to overcome the presumption

that their ballots should be counted. Royalty v. Nicholson, 411 S.W.2d 565

(Tex.Civ.App.-Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956

(Tex.Civ.App.-San Antonio 1954, pet. ref’d).

      (e) Diana Pena and (f) Valerie Pena - As discussed above, Eusebio Cadena

testified that the 1518 E. 6th St. address is the home and residence of all of his

daughters. Deposition of Eusebio Cadena, RR 3, p 110, line 15- 21; p 111, line

2-6. Delma Cadena also testified that, although Diana Pena and Valerie Jadine

Pena, rent at a location on Christian Court, their residence is the 1518 E. 6th Street

address. Testimony of Delma Cadena, RR5, p 73, line 6-19. She also testified that

her and her sisters, brothers, nieces and nephews take turns taking care of their

parents. Id, p 75, line 9-13.

      The only evidence offered by Cross-Appellant was a DPS record showing an

address for Valerie Pena at 1722 Christian Ct., the testimony of a process server

who testified that he found Diana Pena at the address located at 1722 Christian Ct.

and a suggestion that Diana’s elderly and sick father should have known where

Valerie went to school. Again, there was no evidence provided by Cross-Appellant


                                          16
that showed that Diana Pena and her daughter, Valerie, had a residence any where

other than 1518 E. 6th, at least not any clear and convincing evidence that they had

a present intention of having a residence anywhere else.

      Therefore, Cross-Appellant failed to provide the necessary clear and

convincing evidence necessary to rebut the presumption that these voters votes or

ballots were valid. Royalty v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-Houston

1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-San

Antonio 1954, pet. ref’d).

      Reviewing all the evidence “in the light most favorable to the finding” of the

trial court that Appellee had not met her burden by clear and convincing proof that

Delma Cadena, Alexia Dinah Chavez, Alyssa Domitria Chavez, Delma Ann

Chavez, Diana Pena, and Valerie Jadine Pena. were not a residents of District 5 and

giving “appropriate deference to the factfinder’s conclusions” this Court “must

assume that the [trial court] resolved disputed facts in favor of its finding” and

therefore affirm the trial court’s ruling on this Issue. Gonzalez v. Villarreal, supra;

Royalty v. Nicholson, supra; See also, Solis v. Martinez, supra.

6. Cross-Appellant offered no evidence that Delma Cadena, Alexia Dinah
Chavez, Alyssa Domitria Chavez, Delma Ann Chavez, Diana Pena, and
Valerie Jadine Pena. voted in the election being contested.

      Additionally, Cross-Appellant failed to offer any proof that Delma Cadena,

Alexia Dinah Chavez, Alyssa Domitria Chavez, Delma Ann Chavez, Diana Pena,

and Valerie Jadine Pena. in fact voted in the election being contested. Therefore, as

                                          17
a matter of law Cross-Appellant failed to meet her burden that these challenged

voter voted in the election being contested and this Court must affirm the trial

court’s decision to overrule Appellee’s challenge to Guadalupe Rivera, Jr. Miller

v. Hill, 698 S.W.2d 372, 375 (Tex.App.-Houston [14th Dist.] 1985, writ dism’d

w.o.j., 714 S.W.2d 313 (Tex.1986) (per curiam).

7. Cross-Appellant has failed to meet her burden to prove by clear and
   convincing evidence that the following voters were not legal residents of 316
   West Torritos, Weslaco, Texas and District 5 of the Weslaco City
   Commission: (a) Raul Rivera, Sr. (b) Illiana Yvonne Rivera, and (c) Raul
   Rivera, Jr.

      Hortencia Cuellar, the sister of Cross-Appellee Guadalupe Rivera, was the

only witness called by Cross-Appellant Lopez to testify as to the residence or non-

residence on voters who are being challenged. Cross-Appellant Lopez, whose

burden it was to show that 316 West Torritos was not their residence as defined by

Texas law, did not call, nor subpoena, any of these voters to testify either by

deposition or at trial. Master Index, Alphabetical Index of Witnesses, RR1, 10-13.

The following is a synopsis of Hortencia Cuellar testimony:

      (1) She testified that her grandchildren, Cassandra Alaniz, Corina Alaniz

and Jesse Alaniz “always come and visit with [her] . . over the weekends, or on the

holidays or on vacations they go and stay with [her].” Deposition of Hortencia

Cuellar, RR3, p 93, line 2- These are her daughter, Felipa Alaniz’ children. She

also testified that her daughter, Felipa, visits her every day. Deposition of

Hortencia Cuellar, RR3, p 93, line 2-22. Felipa Alaniz also occasionally sleeps at

                                          18
her house - sometimes two or three days. - sometimes with her children. She

testified that Felipa is very close to her. Id, p 94, line 14-20. She also testified that

Felipa does not own a home, she rents. Id, p 94, line 5-7.

      (2) She testified that Irma Rivera, is Raul Rivera’s wife and the mother of

Illiana Yvonne Rivera. Id, p 98, line 9-12. That they live in rented house and that

they never stay very long in one single house. Id, line 13-15. Raul and his family

have rented houses “throughout his entire life.” Id, p 99, line 5-9. At one point

they stayed with her, because “they didn’t have the wherewithal to rent.” They

stayed with here for about two years. Id, p 99, line 10-14.

      (3) She testified that the house located at 316 West Torritos, Weslaco, Texas

“was the house where [her] entire family was raised.” Id, p 104, line 21-23. Her

“entire family has lived there since [she was] born.” Id, p 104, line 25-p 105, line

1. That same house “has been the residence of [her] family” for “85 or 90 years.”

Id, p 105, line 9-11. All of her brothers and sisters were born in the house,

including her brother Raul Rivera. Id, p 105, line 16-22. Also, most of her

grandchildren and nieces whose votes are being challenged by Cross-Appellant

were born in the house 316 West Torritos. Id, p 105, line 25- p 106, line6.

       (4) She testified that the reason that Felipa Cuellar and Cassandra Alaniz are

registered to vote at 316 West Torritos, Weslaco, Texas because it is their residence.

Id, p 106, line 7-13. Although they may rent in other places, “they’ve always

considered that to be their home and their residence.” Id, line


                                            19
14-18. The same applies to Raul Rivera, Irma Rivera and Illiana Yvonne Rivera.

Id, line 19-23. “Because Raul and Irma have never had a home anywhere else,

[she] and them have always considered the place where [she] resides as their

home.” Id, p 106, line 24- p 107, line 2. “[E]ven though they have to rent in other

places, they consider the place where [she] reside[s] 316 West Torritos as their

residence.” Id, line 3-8. at 36. In fact, she testified “that they even receive some

of their mail there.” Id, line 9-11. Sometimes all of the family members “get mail

at [her] house at one time or another.” Id, line 12, 14. Cassandra, Felipa, and

Illiana sometimes get mail at her house on 316 West Torritos. Id, line 15-20.

      (5) “[N]one of these individuals, Cassandra - - neither Cassandra, neither

Felipa, neither Illiana Rivera, neither Irma, neither Raul, none of those individuals

own a home anywhere else.” “[N]ot a single one of them. The are renters, they

rent.” 316 West Torritos “where [she] live[s] in is a family house, it’s the family

house for the Rivera family.” Id, p 107, line 21-p 108, line 5.

      Hortencia Cuellar testimony unequivocally establishes that the house on 316

West Torritos, Weslaco, Texas was the residence of a) Raul Rivera, b) Illiana

Yvonne Rivera, c) Raul Rivera, Jr, as well as the residence of the other challenged

voters of 316 West Torritos. Once the prima facie evidence of their residence was

established by Hortencia Cuellar, it was Cross-Appellant’s burden to prove by clear

and convincing evidence that in fact these persons did not have a present intention

of residing at 316 West Torritos, Weslaco, Texas, Mills v. Bartlett, 377 S.W.3d 636,


                                          20
637 (Tex. 1964), or that they had no intention of returning to that residence after a

brief or prolonged absence. Royalty v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-

Houston 1967, writ ref’d n.r.e.); Solis v. Martinez, 264 S.W.2d 956 (Tex.Civ.App.-

San Antonio 1954, pet. ref’d). Without their sworn testimony, Cross-Appellant

would have to offer evidence which proved by clear and convincing evidence, as a

matter of law, that these voters did not have a present intention of residing at 316

West Torritos or had no intention of returning to that residence after a brief or

prolonged absense. This she certainly did not do

      As discussed before, not one of these individuals was called to testify at the

time of the trial in this case. Other than excerpts taken out of context from the

deposition of Hortencia Cuellar, the only evidence offered by Cross-Appellant on

each of the challenged voters listed above was the following:

      (a) Raul Rivera - - Except for excerpts from Hortencia Cuellar’s deposition,

Cross-Appellant offered no evidence, clear and convincing or otherwise, to rebut

the presumption that Raul Rivera was a resident of 316 West Torritos and that his

vote was valid. There is no evidence that Raul Rivera’s had a residence other than

the residence at 316 West Torritos.

(b) Illiana Yvonne Rivera - The only evidence offered by Cross-Appellant to meet

   the heavy burden that she was required to meet to throw out Illiana Yvonne

   Rivera’s vote was Texas Department of Public Safety “Certified Abstract




                                          21
Record” of a drivers license showing an address “105 1/2 Missouri, Weslaco, TX.”

Texas Department of Public Safety “Certified Abstract Record”, RR 7, Part 2, pp

15-16. The record shows that the drivers license with this address was first issued

on May 1, 2008, five and a half years prior to the date of the election. Furthermore,

and perhaps most importantly, there was no evidence offered that this Illiana

Yvonne Rivera, is the Illiana Yvonne Rivera who is registered to vote at 316 West

Torritos, Weslaco, Texas and who actually voted in the November 2013, election

for City Commissioner, District 5 election. Under Texas law, a five and half year

old drivers license application showing an address in a location other the residence

listed in the voter registration application of a voter is not clear and convincing

proof to overcome the presumption that the Illiana Yvonne Rivera in question in

fact resided at the residence that she declared as her residence when she registered

to vote and which her grandmother testified was her residence. See, In Re

Peacock, 2014 WL 316708 (Tex.App.-Tyler 2014)(A current filed homestead

exemption in another county is not enough to destroy residency in the county

where a voter or candidate is declaring her residency.).

      (c) Raul Rivera, Jr. - Except for excerpts from Hortencia Cuellar’s

deposition, Cross-Appellant offered no evidence, clear and convincing or

otherwise, to rebut the presumption that Raul Rivera, Jr. was a resident of 316

West Torritos and that his vote was valid.




                                          22
      Cross-Appellant incorrectly states on page 8 of his brief that “DPS records

show an address for Raul Rivera at 105 1/2 South Missouri, Weslaco, Texas.”

Texas Department of Public Safety “Certified Abstract Record”, RR 7, Part 2, pp

9-11. In fact, Contestant’s Exhibit 41, which Cross-Appellant cites to, is a DPS

record of a drivers license of Raul Rivera, which lists his address as 316 W.

Torritos St., Weslaco, Texas.    Finally, Cross-Appellant relies on the fact that the

trial court found Irma Rivera, wife of Raul Rivera, to not reside in District 5 as

evidence that Raul Rivera must also not reside in District 5. Cross-Appellee would

refer this Court to Appellant’s Brief wherein Appellant shows that the trial court

erred in finding that Irma Rivera was not a resident of District 5.

      As to Raul Rivera, Jr. the although trial court mentioned during the court’s

pronouncement of his findings and rulings that the application to register was filled

out by the same person who filed out his mother’s registration application, the

court rightfully found that “there’s no evidence of his age, or if he lives with his

parents” and found that it could not find by clear and convincing evidence that

Raul Rivera, Jr did not reside at 316 W. Torritos, Weslaco, Texas. Findings of

Fact and Conclusions of Law, Supp CR 24-32.

      With respect to all three of these voters, Cross-Appellant has failed to offer

clear and convincing evidence to rebut the presumption that their votes were valid

and to establish the negative that in fact they did not have a present intention of

having 316 West Torritos as their residence or that they did not intend to return to


                                          23
their residence at 316 W. Torritos after a temporary or prolonged absence. Royalty

v. Nicholson, 411 S.W.2d 565 (Tex.Civ.App.-Houston 1967); Solis v. Martinez,

264 S.W.2d 956 (Tex.Civ.App.-San Antonio 1954).

      Reviewing all the evidence “in the light most favorable to the finding” of the

trial court that Cross-Appellant had not met her burden by clear and convincing

proof that Raul Rivera, Illiana Yvonne Rivera, and Raul Rivera, Jr. were not a

residents of District 5 and giving “appropriate deference to the factfinder’s

conclusions” this Court “must assume that the [trial court] resolved disputed facts

in favor of its finding” and therefore affirm the trial court’s ruling on this Issue.

Gonzalez v. Villarreal, supra; Royalty v. Nicholson, supra; See also, Solis v.

Martinez, supra.

8. Cross-Appellant offered no evidence that Raul Rivera, Illiana Yvonne
Rivera, and Raul Rivera, Jr. voted in the election being contested.

      Additionally, Cross-Appellant failed to offer any proof Raul Rivera, Illiana

Yvonne Rivera, and Raul Rivera, Jr. in fact voted in the election being contested.

Therefore, as a matter of law Cross-Appellant failed to meet her burden that these

challenged voter voted in the election being contested and this Court must affirm

the trial court’s decision to overrule Cross-Appelant’s challenge to Guadalupe

Rivera, Jr. Miller v. Hill, 698 S.W.2d 372, 375 (Tex.App.-Houston [14th Dist.]

1985, writ dism’d w.o.j., 714 S.W.2d 313 (Tex.1986) (per curiam). voted in the

election being contested.



                                           24
  B. CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S
ISSUE NO. 1b:

The trial court did not commit error in failing to find by clear and convincing
evidence that Martinez voted for Cross-Appellee Rivera in the District 5 race in
that the trial court was within its discretion to chose to not believe that testimony
of Mr. Martinez.

      Cross-Appellant asks this Court to reverse the trial court’s decision to not

find by clear and convincing evidence that Esteban Martinez voted for Guadalupe

Rivera, Jr. After the trial court made its findings in open court and after the trial

court issued its Findings of Fact and Conclusions of Law, Cross-Appellant filed

“CONTESTANT’S REQUESTS FOR ADDITIONAL AND AMENED

FINDINGS OF FACT AND CONCLUSIONS OF LAW” requesting that the trial

court make an additional finding of fact that Esteban Martinez voted for Guadalupe

Rivera. Contestant’s Request for Additional and Amended Findings of Fact and

Conclusions of Law, Supp CR 33-38; p 33 paragraphs 1-4. The trial court

declined: “Esteban Martinez -The court has found the vote to be illegal but was

unable to determine by clear and convincing evidence that it was cast for Rivera.

This vote remains in the undetermined category.” Trial Judge Email, Supp CR 39.


      Cross-Appellant argues that the testimony of Esteban Martinez as to who he

voted for was “clear, direct, positive, and contradicted by any other witnesses or

attendant circumstances” and therefore should be “taken as true as a matter of law.”

BRIEF OF CROSS-APPELLANT LETICIA LOPEZ, pg. 49. Esteban Martinez


                                           25
testified by deposition and at trial, having been called on both occasions by Cross-

Appellant. He provided the incredible testimony that the day after he cast his mail-

in ballot, a six pack of beer appeared on his door step - although he does not know

how it got there. RR2, p 203, line 24- p 204, line 7. Furthermore, the Cross-

Appellant argued from the outset that Esteban Martinez was illegally assisted and

sought to disqualify him on that basis.


      Taking Mr. Martinez’ testimony as a whole, including the testimony

regarding the strange appearance of a six pack of beer at his door step , plus

considering the fact that he had been called to testify on more than one occasion in

this case, it was well within the discretion for the trial court to chose to believe

some of his testimony but not all. See: Johnson v. Ventling, 2013 WL 6730043

(Tex. App. Corpus Christi 2013); and Flores v. Fourth Court of Appeals,777 SW

2d. 38, 41-41, (Texas 1989). Given these facts, it was well within the discretion of

the trial court to fail to find by clear and convincing evidence that Esteban

Martinez voted for Guadalupe Martinez.


      Reviewing all the evidence “in the light most favorable to the finding” of the

trial court that it could not find by clear and convincing evidence that Esteban

Martinez voted for Guadalupe Rivera, this Court “must assume that the [trial court]

resolved disputed facts in favor of its finding” and therefore affirm the trial court’s



                                           26
ruling on this Issue. Gonzalez v. Villarreal, supra; Royalty v. Nicholson, supra;

See also, Solis v. Martinez, supra.


  C. CROSS-APPELLEE’S RESPONSE TO CROSS-APPELLANT’S
ISSUE NO. 2:


The trial court did not commit error in deducting the votes of Tomasa Cavazos,
Jose Luis Martinez, Sr., and Jose Luis Martinez, Jr. from Cross-Appellant
Lopez’s final vote count, because there is clear and convincing evidence to
support the finding that they did not reside in District 5 of the Weslaco City
Commission and voted for Cross-Appellant Lopez.

      Cross-Appellant, not Cross-Appellee, subpoenaed and called Jose Luis

Martinez, Sr. and Jose Luis Martinez, Jr. to testify the time of trial. Cross-

Appellant Lopez, offered evidence that both Jose Luis Martinez, Sr. and Jose

Martinez, Jr. had voted illegally in the District 5 City Commission election and that

their votes should thereby not be counted. RR2, 21-52; 53-67. Both Jose Martinez,

Sr. and Jose Martinez, Jr. testified that they voted for Cross-Appellant Lopez

because Ms. Lopez had provided financial and emotional support to their family

after the tragic death of Mr. Martinez’ niece, Crystal Cavazos. RR2, p 36, line 13-

p 37, line 18; p 60, line 20- p 61, line 13. No evidence was offered by Cross-

Appellant to rebut this testimony as to who Jose Martinez, Sr. and Jose Martinez,

Jr. actually voted for in the District 5 election. Furthermore, Cross-Appellant

Lopez offered evidence challenging residence of a Tomasa Martinez Cavazos ,

who was the mother of Crystal Cavazos. RR 5, p 34-65. She likewise testified that


                                          27
she had voted for Appellee Lopez because of the financial and emotional support

provided to her family by Ms. Lopez. RR5, p 43, line 6-18. Again, Cross-Appellant

Lopez did not rebut Mrs. Cavazos testimony regarding who she had voted for. RR5

pp 34-35.


      The trial court found that Jose Luis Martinez, Sr., Jose Luis Martinez, Jr. and

Tomasa Martinez Cavazos did not reside in District 5, found that they had voted

for Cross-Appellant Lopez and deducted from Cross-Appellant Lopez’ total the

three votes that they cast. Findings of Fact and Conclusions of Law, Supp CR

24-32.


      The evidence as to who these three voters voted for was not refuted. They

gave more than credible reasons for having cast their vote for Cross-Appellant.

Cross-Appellant challenged these voters and Cross-Appellant does not dispute that

she was able to prove by clear and convincing evidence that these voters were not

residents of District 5. Upon their disqualification, the trial court had the discretion

to determine who they voted for in deciding how their improper votes effected the

final outcome of the election being challenged. In considering all of the evidence,

(which in this instance there was only evidence offered by these three individuals

as to their vote for Appellee), this court is free to conclude that the evidence

support’s the trial court’s finding that these three individuals voted for Cross-



                                          28
Appellant and that their votes should be deducted from Cross-Appellant.

Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).


      All that Cross-Appellant can argue is that their testimony is incredible and

can’t be believed. In fact they can be believed and the trial court could, within its

discretion, find that they did vote for Cross-Appellant Lopez. Reviewing all the

evidence “in the light most favorable to the finding” of the trial court that Jose Luis

Martinez, Jr., Jose Luis Martinez, Sr. and Tomas Cavazos had voted for Cross-

Appellant Lopez and giving “appropriate deference to the factfinder’s conclusions”

this Court “must assume that the [trial court] resolved disputed facts in favor of its

finding” and therefore affirm the trial court’s ruling on this Issue. Gonzalez v.

Villarreal, supra; Royalty v. Nicholson, supra; See also, Solis v. Martinez,

supra.


D. CROSS-APPELLEE’S REPLY TO CROSS-APPELLANT’S ISSUE NO
4

The trial court did not commit error in deducting four undervotes, rather than
one or two from the total number of illegal but undetermined votes cast in the
election because Cross-Appellant failed to prove by clear and convincing
evidence that said undetermined voters were not among the undercounted
undetermined voters.

      Finally, Cross-Appellant in a confusing analysis of the undercount attempts

to convince this Court that the trial court erred by deducting 4 votes from the total

undetermined votes based upon the undercount in the election, i.e. based upon the


                                          29
total number of District 4 voters not voting in the District 4 City Commission race.

Instead, it argues that the trial court should have subtracted two votes. Appellant

relies solely on a “canvas report” which it alleges proves by clear and convincing

evidence that the undercount should be four. No one was called to testify as to the

accuracy of the “canvas report”, how to interpret it and whether it accurately

reflected the undercount in each category of voters. Master Index, Alphabetical

Index of Witnesses, RR1, 10-13. Appellant asks this Court to take a leap of faith,

by clear and convincing evidence, and throw out an additional 2 votes. This is in

addition to the fact that there is no determination as to whose vote is actually being

disqualified for purposes of residency, recognizing that even if a voter who was not

a resident of District 5 could not vote in the District 5 City Commission election,

his vote was entirely legal in the election for mayor and the vote for the proposed

Constitutional Amendments. It should not be so easy to disenfranchise a voter -

our Constitution does not permit this.


      Cross-Appellant sought to convince the trial court to take this “leap of faith”

when it filed proposed requests 27-29 in “CONTESTANT’S REQUEST FOR

ADDITIONAL AND AMENDED FINDINGS OF FACT AND CONCLUSIONS

OF LAW” on November 6, 2014. Contestant’s Request for Additional and

Amended Findings of Fact and Conclusions of Law, Supp CR 33-38. The trial

court’s response: “The court made no such findings in its decision.” Trial Judge


                                          30
Email, Supp CR 39. Quite clearly, the court found, within its discretion, that the

Cross-Appellant had not proved by clear and convincing evidence an applicable

undercount less that four votes and thereby denied Cross-Appellant’s proposed

requests.


      The trial court was within its discretion to believe or disbelieve any evidence

offered at trial, particularly when the burden upon the party seeking to prove a

matter in contention is by “clear and convincing evidence.” See: Johnson v.

Ventling, 2013 WL 6730043 (Tex. App. Corpus Christi 2013); and Flores v.

Fourth Court of Appeals,777 SW 2d. 38, 41-41, (Texas 1989). Here the trial

court, within its discretion, found by clear and convincing evidence that “that four

(4) voters did not cast a ballot for City Commissioner District 5, Weslaco, Hidalgo

County, Texas.” Reviewing all the evidence “in the light most favorable to the

finding” of the trial court that “that four (4) voters did not cast a ballot for City

Commissioner District 5, Weslaco, Hidalgo County, Texas” and giving

“appropriate deference to the factfinder’s conclusions” this Court “must assume

that the [trial court] resolved disputed facts in favor of its finding” and therefore

affirm the trial court’s ruling on this Issue. Gonzalez v. Villarreal, supra; Royalty

v. Nicholson, supra; See also, Solis v. Martinez, supra.


                                   CONCLUSION



                                           31
      As the above arguments and evidence establish, the trial did not err in 1)

failing to find that Cross-Appellant failed to prove by clear and convincing

evidence that the voters challenged on the basis of residency were not residents, as

defined under the Texas Elections Code, of the residence where they were

registered, 2) failing to find by clear and convincing evidence that Esteban

Martinez voted for Guadalupe Rivera, 3) finding that Jose Luis Martinez, Sr., Jose

Martinez, Jr. and Tomasa Cavazos voted for Cross-Appellant Lopez, and 4) finding

by clear and convincing evidence that “that four (4) voters did not cast a ballot for

City Commissioner District 5, Weslaco, Hidalgo County, Texas”. As to these

rulings this Court should affirm the trial court.




                                        Respectfully submitted,
                                        Law Offices of Gilberto Hinojosa &
                                        Associate, PC

                                        /s/_________________________
                                        Gilberto Hinojosa
                                        State Bar No. 09701100
                                        622 E. St. Charles
                                        Brownsville, TX 78520
                                        (956) 544-4218 (Telephone)
                                        (956) 544-1335 (Facsimile)
                                        ATTORNEY FOR APPELLANT



                                          32
                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing has been
forwarded to all counsel of record on this 5th day of January, 2015 in accordance
with the Texas Rules of Civil Procedure.

Jerad Wayne Najvar
NAJVAR LAW FIRM
4151 Southwest Freeway, Suite 625
Houston, TX 77027
Tel. (281) 404-4696
Cell: (281) 684-1227
email: jerad@najvarlaw.com
                                      /s/_________________________
                                      Gilberto Hinojosa



                      CERTIFICATE OF COMPLIANCE

       I certify that based on the word count provided by the computer program
used to prepare this response brief, this document contains 7,784 words, excluding
the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(l).

                                      BY: /s/_____________________
                                      Gilberto Hinojosa




                                        33
