

Opinion issued August 11, 2011.


In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00888-CV
———————————
Tarris Woods, Appellant
V.
Rusty Legg, Appellee

 

 
On Appeal from the 212th District Court
Galveston County, Texas

Trial Court Case No. 10-CV-1791
 

 
O P I N I O N
          Tarris
Woods, who had been an incumbent Galveston City Councilmember, lost a close
runoff election to Rusty Legg.  Woods
brought an election contest under section 221.003 of the Texas Election Code, challenging
the vote count on the grounds that officials prevented eligible voters from
voting, failed to count legal votes, or engaged in other fraud, illegal
conduct, or mistake.  See Tex.
Elec. Code Ann. § 221.003 (West 2010).  Following a bench trial, the trial court denied
the contest, entered findings of fact and conclusions of law, and confirmed
that the election results declaring Rusty Legg the winner.  
On appeal, Woods challenges the
trial court’s ruling, claiming that it erred in refusing to order a new
election.  He contends that he presented
clear and convincing evidence that (1) election officials mistakenly
assigned some District 1 residents to districts outside of the voting area and
(2) officials erred in preventing eligible voters from casting their votes in
his favor.  We conclude that the trial
court did not abuse its discretion in rejecting the challenge because
sufficient evidence supports its findings. 
We therefore affirm.  
Background
          The
general election for District 1 Galveston city councilmember took place in
November 2009.  A little more than a year
before, Hurricane Ike had devastated the island and displaced many of its
residents.  Particularly hard-hit were lower-income residents who lived in public
housing or rental properties.  Many of
these residents lived in District 1, located on the eastern side of the island.  Although Woods and Legg were the top two vote-getters
in the November contest, neither commanded a majority of the vote, and thus a
run-off election became necessary.
The June 19, 2010 runoff vote
resulted in 209 votes for Legg and 200 votes for Woods, including one
provisional ballot counted for Woods.  During
the bench trial, the trial court heard evidence from witnesses who, according
to Woods, were aggrieved voters and from Galveston County Tax
Assessor-Collector and Voter Registrar Cheryl Johnson.  Following the presentation of evidence, the
trial court confirmed the certified election results in favor of Legg as the
true outcome of the election.  
Discussion
Burden of Proof and Standard of Review
An election contest is a special statutory
proceeding that provides a remedy for elections tainted by fraud, illegality or
other irregularity.  Blum v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999); Tex. Elec. Code Ann. §§ 233.003–233.014
(West 2010).  It “includes any type of
suit in which the validity of an election or any part of the elective process
is made the subject matter of the litigation.”  Rossano
v. Townsend, 9 S.W.3d 357, 362 (Tex. App.—Houston [14th Dist.] 1999, no
pet.).
To set aside the outcome of the runoff
election, Woods bore a burden to prove by clear and convincing evidence that
violations of the Election Code materially affected the election’s outcome.  Price v.
Lewis, 45 S.W.3d 215, 218 (Tex. App.—Houston [1st Dist.] 2001, no pet.); Olsen v. Cooper, 24 S.W.3d 608, 610
(Tex. App.—Houston [1st Dist.] 2000, no pet); Slusher v. Streater, 896 S.W.2d 239, 241 (Tex. App.—Houston [1st
Dist.] 1995, no writ).  An outcome of an
election is “materially affected” if a different and correct result would have
been reached in the absence of Election Code violations. Olsen, 24 S.W.3d at 610.  The
clear and convincing standard requires more proof than the preponderance of the
evidence standard in ordinary civil cases, but less than the reasonable doubt
standard in criminal cases. Id.; In re K.C.M., 4 S.W.3d 392, 395 (Tex. App.—Houston [1st Dist.] 1999, pet.
denied).  This standard is the degree of
proof that produces in the factfinder a “firm belief or conviction” as to the
truth of the allegations sought to be proved.  K.C.M.,
4 S.W.3d at 395.  
With this burden in mind, we review
the record in an election contest to determine whether the trial court abused
its discretion. Price, 45 S.W.3d at
218.  We “look at all the evidence in the
light most favorable to the finding to determine whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.”  In re
J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). We disregard “all evidence that
a reasonable factfinder could have disbelieved or found to have been
incredible.”  Id. at 266.  We cannot,
however, disregard contrary evidence that the factfinder could not ignore.  City of
Keller v. Wilson, 168 S.W.3d 802, 817, 830 (Tex. 2005).  
In a bench trial, the trial court
determines the credibility of the witnesses and the weight to be given their
testimony.  Woods v. Woods, 193 S.W.3d 720, 726 (Tex. App.—Beaumont 2006, pet.
denied); see also City of Keller, 168
S.W.3d at 819.  In resolving factual
disputes, the trial court may believe one witness and disbelieve others, and it
may resolve any inconsistencies in a witness’s testimony.  McGalliard
v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).  In making these credibility determinations,
the factfinder “cannot ignore undisputed testimony that is clear, positive,
direct, otherwise credible, free from contradictions and inconsistencies, and
could have been readily controverted.”  City of Keller, 168 S.W.3d at 820.  However, if the factfinder could reasonably
believe the testimony of one witness or disbelieve the testimony of another
witness, an appellate court “cannot impose [its] own opinions to the contrary.”
 Id.
at 819.
II.      Election
Contest
A.      Governing statute
Under section 221.003 of the Texas
Election Code:
(a)     The tribunal hearing an election contest shall attempt to
ascertain whether the outcome of the election contest, as shown by the final
canvass, is not the true outcome because:
(1)     illegal votes were counted; or
(2)     an election officer or other person officially involved in the
administration of the election:
          (A)    prevented eligible voters from voting; 
          (B)
    failed to count legal votes; or 
(C)     engaged in other fraud or illegal conduct or made a mistake.
Tex. Elec. Code Ann.
§ 221.003.  A contestant may prove the
need for a recall election either by showing that individual voters—in a number that would change the outcome of
the election—cast legal votes for the
contestant that were not counted, or by showing that the illegal votes (or the
improperly prevented votes) exceed the margin of victory.  See
Tex. Elec. Code Ann. §§ 221.003(a)(2)(A),
221.009 (West 2010); Miller v. Hill,
698 S.W.2d 372, 375 (Tex. App.—Houston [14th Dist.] 1981), writ dism’d, 714 S.W.2d 313 (Tex. 1986). 
          B.      Voter
eligibility
                   1.       Residence
The resolution of this appeal, in
large part, turns on the meaning of the term “residence.”  The Texas Election Code defines “residence” as
“one’s home and fixed place of habitation to which one intends to return after
any temporary absence.”  Tex. Elec. Code Ann. § 1.015(a)
(West 2010).  The determination of
residence must accord “with the common-law rules, as enunciated by the courts
of this state, except as otherwise provided by this code.”  Tex.
Elec. Code Ann. § 1.015(b). 
The Election Code further provides that: 
“A person does not lose the person’s residence by leaving the person’s
home to go to another place for temporary purposes only.” Tex. Elec. Code Ann. § 1.015(c).  Conversely, “[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 Ann. § 1.015(d).  
Whether a person is a resident
depends on the “circumstances surrounding the person involved and largely
depends upon the present intention of the individual.”  Mills v.
Bartlett, 377 S.W.2d 636, 637 (Tex. 1964).  The determination of residence for voting
purposes centers on both the person’s expression of intent to remain at, or
return to, the alleged residence, as well as the circumstances that led to
their presence or absence and those tending to show that the person is likely
to remain at or return to the alleged residence.  See Speights
v. Willis, 88 S.W.3d 817, 819 (Tex. App.—Beaumont 2002, no pet.) (“Whether
a person is a resident depends on the circumstances surrounding the person
involved and largely depends upon the present intention of the individual.”)
(internal quotation omitted).  “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.”  Slusher, 896 S.W.3d at 244.  Conduct such as where a person sleeps and
keeps personal belongings may support factors such as presence and intent.  Mills,
377 S.W.2d at 637.  One element alone is
insufficient to establish residency; the elements must form a nexus to fix and
determine a residence.  Id.  
When a person’s statements
regarding residence are inconsistent with other evidence showing actual
residence, “such statements ‘are of slight weight’ and cannot establish
residence in fact.”  In re Graham, 251 S.W.3d 844, 850 (Tex. App.—Austin 2008, no pet.)
(quoting Texas v. Florida, 306 U.S.
398, 424, 59 S. Ct. 563, 576 (1939)).  On
appeal, we are limited to determining whether the trial court’s credibility
determinations were reasonable.  See City of Keller, 168 S.W.3d at 819–20;
McDuffie v. Miller, 327 S.W.3d 808,
820 (Tex. App.—Beaumont 2010, no pet.)  
          2.       Registration
and change of residence
          To be
eligible to vote, an individual also must comply with voter registration
requirements, including timely notification of any change of address or the
need to update other information.  See Tex.
Elec. Code Ann. § 15.021, 15.112 (West 2010).  “[I]f the registrar has reason to believe
that a voter’s current residence is different from that indicated on the
registration records, the registrar shall deliver to the voter a written
confirmation notice requesting confirmation of the voter’s current residence.”  Tex.
Elec. Code Ann. § 15.051(a) (West 2010). 
If the voter fails to respond and provide written confirmation of the
voter’s current residence within thirty days, the voter: 
(A) is subject to submission
of a statement of residence before the voter may be accepted for voting in an
election held after that deadline; or
(B) for a notice [delivered
after return of the registration renewal certificate], the voter will remain
subject to submission of a statement of residence before the voter may be
accepted for voting in an election . . . .
Tex. Elec. Code Ann.
§ 15.052(a)(1) (West 2010).  The
registrar maintains a “suspense list” of voters who fail to send a timely
response to a request for confirmation of current residence. Id. § 15.081.  In preparing the voter rolls, the registrar
“shall enter the notation ‘S’, . . . on the list of registered voters beside
each voter’s name that also appears on the suspense list.”   Id.
§ 15.111(a).  If a voter appears to vote
in a precinct where the voter’s name is on the suspense list, and the voter
satisfies the residence requirements and completes a statement of residence
form, the voter may vote.  See id. §§ 15.112, 63.001, 63.011.
          Throughout
his brief, Woods complains that, in the aftermath of the hurricane, the change
of address notification requirement unfairly and disproportionately affected some
displaced residents of District 1.  He
does not, however, attack the validity of the statutory requirement.  The plain language of the Election Code makes
these residence verification procedures mandatory.  
III.    Analysis
A.      Lists of voters assigned to the wrong
precinct or district
Woods first contends that the trial
court abused its discretion in failing to credit the evidence he presented to
show that the outcome of the election was not the true outcome because of the Galveston
County election officials’ mistakes in assigning some of the voters who
belonged in Precinct 309—within
District 1 in the city of Galveston—to Precinct 339 in Dickinson, which was not involved in this runoff
election.  See Tex. Elec. Code Ann. §
221.003(a)(2)(C).  To support this
contention, Woods provided the district court with lists, compiled from registrar
records, of (1) 20 District 1 registered voters who mistakenly were assigned to
precinct 339 and (2) 93 registered voters who provided the city’s Salvation
Army, located in District 1, as their residential address, whom the registrar mistakenly
had assigned outside the runoff election area, to District 3. 
The record does not contain testimony
from any of these registered voters.  No
evidence shows that they remained residents of District 1 on the runoff
date.  Many of them did not cast votes in
the runoff election.  Woods notes that
seven of the voters assigned to precinct 339 and four of the voters assigned to
District 3 actually voted, but he did not show whether they would have voted
for him had they been assigned to District 1.  In its findings, the trial court credited this
evidence along with Woods’ own testimony on the matter:
Woods’ testimony permits an inference that he
believes that homeless voters, minorities, and public housing residents were
wrongfully moved out of District 1 and that this caused the election to come
out the way it did.  While some evidence
might have supported this belief had it been produced, the evidence that was
produced at trial did not rise to the level of clear and convincing proof that
any single qualified registered voter was deprived of a vote for the candidate
of his choice in the June 19, 2010 runoff.
The trial court did not abuse its
discretion in reaching this conclusion.  “The
law is well settled that irregularities in the conduct of an election which
cannot be shown to have materially affected the results of the election are
immaterial.”  Kennelly v. Gates, 406 S.W.2d 351, 358 (Tex. Civ. App.—Houston 1966,
no writ).  
Woods contends that the trial court
should have declared the election void without a showing of how the individual
voters voted, as permitted under section 221.009(b) of the Election Code,
because the evidence showed that “the number of illegal votes is equal to or
greater than the number of votes necessary to change an election’s outcome.”  Tex.
Elec. Code Ann. § 221.009(b); see
Green v. Reyes, 836 S.W.2d 203, 209 (Tex. App.—Houston [14th Dist.] 1992,
no writ); Medrano v. Gleinser, 769
S.W.2d 687, 688–89 (Tex. App.—Corpus Christi 1989, no writ).  The statute, however, expressly leaves the
discretion to make such a declaration to the trial court.  See Tex. Elec. Code Ann. § 221.009(b)
(providing that “the tribunal may
declare the election void without attempting to determine how individual voters
voted”) (emphasis added).  Based on the
evidence before it, the trial court did not abuse its discretion in refusing to
exercise that authority.  
          B.      Testimony
of individual voters
          Woods
also contends that the trial court erred in holding that he failed to present
clear and convincing evidence to show that certain allegedly aggrieved voters,
named below, were eligible to vote and wrongfully denied the opportunity to
vote in his race.  We address each
challenge in turn.  
Angelina Archangel testified that she was resident of
LaMarque, having moved there after Hurricane Ike.  According to the trial court’s findings, and as
the record supports, Archangel admitted that she had no present plan to return
to Galveston.  She stated, however, that
when she does return, she plans to reside in District 1.  Archangel was not listed as a registered
voter when she tried to vote in the District 1 runoff election because the
voter roll erroneously showed her as assigned to Precinct 339 in Dickinson.  Archangel cast a provisional ballot for Woods.  The ballot review board rejected Archangel’s provisional
vote on the basis that Archangel did not have an effective registration for the
election.  The trial court concluded that
no clear and convincing evidence showed that Archangel was qualified and
registered to vote in the runoff.  The
evidence supports the trial court’s conclusion that Archangel was not an
eligible voter because she was not a resident of District 1 at the time of the
runoff election, and she evidenced no present intent to return to the district.  
Ruth Ouzenne testified that when she went to
cast her vote in the District 1 runoff, the voter registration list showed an
“S” by her name.  She was told that she
would have to complete a new registration card, but declined, saying that she
was already registered.  Voter Registrar
Johnson explained that the “S” indicates that the tax assessor-collector’s
notice was returned as undeliverable, and the evidence established that Ouzenne
had changed her address but had not notified the registrar of her change of
address.  According to Johnson’s
testimony, election officials may ask the voter to complete either a statement
of residence form or use a voter registration form to collect the same information.  Ouzenne chose to forgo completing another registration
form, and she left the voting location without further inquiry.  
Woods complains that change of
residency is not a proper ground for cancellation of Ouzenne’s
registration.  Suspension pending
collection of a statement of residence, however, is not the same thing as cancellation.  Compare
Tex. Elec. Code Ann. §§ 15.081,
63.001, 63.0011 (providing suspension and statement of residence procedures
before voter may cast vote) with id.
§§ 16.001–16.0332 (identifying grounds and procedures for cancellation of
registration).  At trial, Ouzenne
admitted that it was her own decision not to complete the registration card and
that she had no reason to believe that, had she completed the card, she would
not have been given a provisional ballot. 
The evidence does not show improper conduct by election officials,
merely that Ouzenne declined to comply with a request to update her information
and chose not to vote.  The trial court did
not abuse its discretion in concluding that Woods failed to present clear and
convincing proof that an election worker wrongfully denied Ouzenne the
opportunity to vote in the runoff.  
          Annie
Lee Smith testified that she requested and received a mail-in ballot.  She noticed that the ballot she received was for
District 2, not District 1.  Smith testified
that she sent the ballot back unmarked in the envelope provided.  On the runoff date, she appeared in person to
vote in the District 1 race, but precinct officials told her told that she
could not vote because she already had voted by mail.  The city secretary testified that she
received Smith’s mail-in ballot on June 4, and that receipt of the mail-in
ballot counted as a vote regardless of whether it was marked.  
          Smith
was aware of the mistake when she received the District 2 ballot.  Returning the ballot caused the problem.  Once a ballot is sent in a sealed envelope,
the early voting ballot board receives and processes the ballots according to
specifically prescribed procedures.  See  Tex.
Elec. Code Ann. §§ 86.005(e), 87.021, 87.041.  The voter must also adhere to specific
procedures in attempting to cancel a ballot. 
See id. § 84.032.  The evidence shows that Smith did not follow
the necessary procedures to cancel her mailed-in ballot.  The trial court did not abuse its discretion
in concluding that Smith was not eligible to vote in the District 1
runoff.  
          Rosa
Patterson did not testify.  Galveston
City Secretary Barbara Lawrence testified that, like Smith, Patterson was
improperly placed in District 2 and forwarded a District 2 mail-in ballot
instead of the District 1 ballot.  The
election records show that Patterson’s mail-in ballot also was received and
recorded.  The record does not indicate
whether Patterson was aware that she cast her ballot in the District 2 race
rather than the District 1 runoff or whether she intended to vote for
Woods.  The trial court did not abuse its
discretion in concluding that Woods failed to show by clear and convincing
evidence that Patterson was prevented from voting for the candidate of her
choice.  
Charles Southern testified that he did not live at San
Jacinto Elementary School, the address shown on his registration card.  Before Hurricane Ike, Southern resided in
housing within District 1, but he could not return home after the storm.  By the time of trial, Southern had signed a
lease with the Galveston County Housing Authority confirming that he resided at
an address in District 2.  The trial
court did not abuse its discretion in finding that Southern was not eligible to
vote in District 1 at the time of the runoff election.  
Lutishie Hayes testified that she went to a polling
location to vote for Woods but was not allowed to vote.  The evidence shows that Hayes had two
different identification numbers for the State of Texas, and had used a third number
on her voter registration application. 
As a result, the election officials were unable to verify the proper
identification number.  Hayes’s
application, she admitted, was incomplete, and she did not correct the
application.  Woods contends that the
election officials wrongfully prevented Hayes from voting because they should
have promptly challenged her eligibility for registration and failed to do so
in time for her to correct the error. 
The statute, however, requires the voter to ensure that accurate registration
information is provided.  See Tex.
Elec. Code Ann. § 15.021(a).  The
application for registration requires either the applicant’s state-issued
identification number or the last four digits of her social security
number.  Hayes’s application contained
neither.  The evidence supports the trial
court’s conclusion that Hayes was statutorily eligible at the time of the runoff
election.  
Doris Scott testified that she lived in Texas
City and Houston after being displaced by Hurricane Ike and had not lived in
Galveston for the two years preceding the runoff election.  At the time of trial, she lived in Houston
and worked in Texas City, and had no present plan to return to Galveston.  She nevertheless traveled to Galveston to
vote in the District 1 runoff.  Like
Ouzenne, the election officials had placed an “S” by her name, which indicated
that an updated address was required. 
Scott ultimately was told that she could not vote because she lived in
Houston.  The trial court did not abuse
its discretion in finding that Scott was not an eligible District 1 voter on
the runoff election date.
Terrion Sharper did not testify.  The successful candidate in the District 2
race, Linda Kay Colbert, testified that she had helped Sharper register.  Sharper told Colbert that she would mail it,
but the evidence did not show whether she did so timely.  Sharper’s mother testified that her daughter
was not allowed to vote.  This testimony
does not support Woods’ burden to prove by clear and convincing evidence that
Sharper was eligible to vote in the runoff election or that an election worker
wrongfully prevented her from voting.  
Shirley Grice Anthony testified that she voted in the
general election and completed a card showing her change of address, but was
not permitted to vote in the District 1 runoff election because her new
registration address was in District 6.  
Anthony expressed her wish to have remained in her rented
home in District 1, but she had no definite plans to return to District 1.  The trial court acted within its discretion
in determining that the evidence did not establish that Anthony was a qualified
registered voter in District 1 at the time of the runoff. 
          Ashley
Smith and Kimberly Smith, Anthony’s grandnieces, had grown up in her rented
home in District 1 and still considered their home to be with Anthony.  According to Anthony, they were attending
college in Houston and planned to return to Galveston to vote in the District 1
runoff until Anthony told them that she was unable vote in the election because
of her change of address.  Neither Smith
testified.  The evidence supports the
trial court’s conclusion that Ashley and Kimberly were not statutorily eligible
to vote in District 1 at the time of the runoff election, nor does the record
demonstrate their intent to vote in the election or any denial of the intent to
vote.
          Many
of the trial court’s findings depended on its assessment of the witnesses’
credibility and the weight to give their testimony, which we do not revisit on
appeal in light of some evidentiary support for that assessment.  See City
of Keller, 168 S.W.3d at 819.  We
hold that the trial court acted within its discretion in upholding the
certified election result after concluding that Woods did not bear his burden
to prove by clear and convincing evidence that, but for election official
misconduct, he would have won the runoff election. 
Conclusion
          We
hold that the trial court did not abuse its discretion in confirming that the certified
election results declaring Rusty Legg the winner reflected the true outcome of
the election.  We therefore affirm the
judgment of the trial court.
 
 
                                                                   Jane
Bland
                                                                   Justice

 
Panel
consists of Justices Jennings, Bland, and Massengale.

