                             NUMBER 13-18-00377-CV

                                COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ESEQUIEL (CHEQUE) DE LA PAZ,                                                          Appellant,

                                                 v.

OFELIA (OFIE) GUTIERREZ,                                                               Appellee.


                      On appeal from the 105th District Court
                            of Kleberg County, Texas.


                             MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Hinojosa and Wittig 1
              Memorandum Opinion by Justice Hinojosa

       This is an accelerated appeal from a final judgment voiding the results of the 2018

Democratic Primary Runoff Election for Justice of the Peace, Precinct 4, Kleberg County,



        1 Retired Fourteenth Court of Appeals Justice Don Wittig, assigned to this Court by the Chief

Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN. §
74.003 (West, Westlaw through 2017 1st C.S.).
Texas (the Precinct 4 JP runoff race). Before being voided, the election results provided

that appellant Esequiel “Cheque” De La Paz prevailed over appellee Ofelia “Ofie”

Gutierrez by six votes. Esequiel’s 2 two issues, as we construe them, contend that (1)

the election code required Gutierrez, as the contestant in the trial court, to present

evidence that each illegal voter voted in the Precinct 4 JP runoff race as opposed to voting

in only the two other races on the Democratic runoff ballot in Kleberg County, and (2)

whether the evidence supporting the trial court’s judgment is legally or factually

insufficient. We affirm.

                                         I. BACKGROUND

       Both Esequiel, the twenty-four-year incumbent, and Gutierrez, the challenger,

qualified for the Precinct 4 JP runoff race. The May 22, 2018 Democratic primary runoff

ballot in Kleberg County on which the Precinct 4 JP runoff race appeared included two

other races—the race for Governor of Texas and the race for Commissioner, Precinct 4,

Kleberg County. Esequiel prevailed over Gutierrez in the final canvass by 318 to 312

votes. The Democratic Party Chair of Kleberg County declared Esequiel the winner, and

Gutierrez filed a petition for election contest.

       Gutierrez generally asserted that several of Esequiel’s family members illegally

voted in the Precinct 4 JP runoff race because they did not reside at the addresses

indicated on their voter registration applications. Several of Esequiel’s family members

testified at the bench trial. See TEX. ELEC. CODE ANN. § 231.005 (West, Westlaw through



         2 As explained below, several of the witnesses share Esequiel “Cheque” De La Paz’s surname.

We will refer to appellant by his first name for clarity.

                                                 2
2017 1st C.S.) (“The district judge shall decide the issues of fact in an election contest

without a jury.”). Gutierrez introduced and the trial court admitted approximately 185

exhibits. These exhibits included voter registration applications and property appraisal

information from the Kleberg County Appraisal District relating to several of Esequiel’s

family members.

       In its final judgment, the trial court pronounced that by clear and convincing

evidence seven individuals did not reside in Precinct 4 and thus their votes were illegal.

Esequiel requested findings of fact and conclusions of law, and Gutierrez filed proposed

findings and conclusion. Esequiel objected to Gutierrez’s filing, arguing:

       . . . While the proposed findings and conclusions arguably set out the facts
       and properly state the relevant law, they do not apply the law to the facts.
       Hence, there are no conclusions of law in the Proposed Findings and
       Conclusions.

              “The primary purpose for findings of fact is to assist the losing party
       in narrowing his issues on appeal by ascertaining the true basis for the trial
       court’s decision.” Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241,
       255 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

The findings of fact signed by the trial court provide, in relevant part, the following:

       [1-2.] Rogelio De La Paz is the first cousin of [Esequiel] and is married to
       Rachel De La Paz. Both individuals testified that they have a home which
       has all utilities connected and for which all vehicle registration, taxes and
       appraisals are all delivered to this house located at 124 South County Road
       1055, Kingsville, Kleberg County, Texas. This home is a three-bedroom,
       two bath home with approximately 1,536 square feet and an appraised tax
       value of $52,090. This house is located in Precinct 1 in Kleberg County,
       Texas. They testified that they, along with their two teenaged daughters
       now live in a three-bedroom, one bath house that belongs to the mother of
       Rachel De La Paz. This house is located at 1130 East Avenue B,
       Kingsville, Kleberg County, Texas. The house is approximately 1,200
       square feet with an appraised tax value of $33,000. Rogelio De La Paz
       and Rachel De La Paz testified that they, their two teenaged daughters and
       her parents all live in the same home, although no bills or mail are received

                                              3
at this address. They both testified that neither of their daughters ever
enrolled in school in Kingsville Independent School District. Rather from
Kindergarten to eighth grade were enrolled at Ricardo Independent School
District which is outside of the city limits of Kingsville, Texas [and] not in
[P]recinct 4.

[3.]    Margo Ann De La Paz is the daughter of [Esequiel]. She claimed
her residence is with her parents at 1218 East Santa Gertrudis, Kingsville,
Kleberg County, Texas as evidenced by her voter registration card. This
is the residence of [Esequiel] and his wife. The evidence established she
is the owner of a residence located at 25906 Mission Bluff, Boerne, Bexar
County, Texas. The evidence showed that she has been the homeowner
of this residence for approximately 13 years. Evidence showed that she is
and has been employed in Bexar County for more than a decade. The
Bourne [sic] Home is registered as her homestead.

[4-5.] Mariselda Ann De La Paz is the biological daughter of [Esequiel].
She and her boyfriend, Modesto Garza III have two teen aged daughters.
She is and has been employed with Texas A&M University-Kingsville for
approximately 27 years. She is a coordinator for student events at the
University. She owns a house for which she pays taxes, which has
connected utilities and where she testified she stays on weekends and
summers. The house is located in Precinct 1 on FM Road 2619 in
Kingsville, Kleberg County, Texas. This house has approximately 3,856
square feet with an appraised tax value of $167,000. She testified that she
and her teenaged daughters and her boyfriend, Modesto Garza III all live at
1218 East Santa Gertrudis, Kingsville, Kleberg County, Texas. This is the
residence of [Esequiel] and his wife. She testified that the four members
of her family live with [Esequiel] and his wife, as well as Margo Ann De La
Paz, Vanessa M. Del Bosque, and Eloy Allen Hernandez. [Esequiel’s]
home is approximately 1,650 square feet with four bedrooms and has an
appraised value of $59,170.

[6.]    Vanessa M. Del Bosque is the granddaughter of [Esequiel]. She
testified that she lives with her grandfather and other family members at
1218 East Santa Gertrudis. Voter registration card introduced into
evidence showed that she registered approximately one month prior to the
May 22, 2018 election. Evidence established that before this change she
had been living with her father at 149 East County Road 2150 in Kingsville,
Kleberg County, Texas, which is located in Precinct 1. Evidence was also
presented that in all elections in which she had previously voted from March
2010 through November 2016 she voted in Precinct 1. Her boyfriend is
Eloy Allen Hernandez.


                                      4
       [7.]   Eloy Allen Hernandez is in a relationship with Vanessa M. Del
       Bosque. The evidence showed that he registered to vote in December
       2017. He listed his address at that time as 1216 East Santa Gertrudis,
       Kingsville Texas. This property is owned by [Esequiel]. Evidence [sic]
       presented that from August 2011 – January 2018 he was registered to vote
       in Kenedy County, Texas the county where his parents live. Evidence from
       the City of Kingsville Water Department for the address of 1216 East Santa
       Gertrudis, indicated the utilities for that address to be registered under the
       name of Carol Vela from March 1, 2016 – May 15, 2017, and under the
       name of Ramiro Mireles from March 12, 2018 – current. The lease
       agreement between the landlord and tenants of that address was
       introduced into evidence. Water Department documents showed the
       tenants did not name Mr. Hernandez or his girlfriend Vanessa M. Del
       Bosque as tenants.

       [8.]   The Court finds by clear and convincing evidence that Rogelio De La
       Paz, Rachel Del La Paz[,] Margo Ann De La Paz, Mariselda Ann De La Paz,
       Modesto Garza III, Vanessa M. Del Bosque and Eloy Allen Hernandez are
       not residents of Precinct 4. Their votes cast in the May 22, 2018 election
       were illegal. These witnesses’ explanation of residence and intent were
       not credible.

       [9.]   The Court finds that the seven illegal votes changed the outcome of
       the election. The Court does not find by clear and convincing evidence
       who those seven illegal votes were cast for and thus has ordered a new
       election and has not declared the contestant the winner.

The conclusions of law signed by the trial court provide, in relevant part, that “[o]n the

whole the evidence overwhelmingly established [Esequiel’s] family and friends falsified

their voter registration cards by claiming residence where they did not live and had no

intention of living.   Their individual and collective activities/noncredible testimony so

tainted this election that another is necessary.”

       Esequiel requested additional or amended findings of fact, specifically requesting

a finding that Gutierrez “did not prove by clear and convincing evidence that any of the

challenged voters voted in the Kleberg County, Precinct 4 justice of the peace race.” The

record contains unsigned supplemental findings of fact that provided each of the seven

                                             5
individuals referenced in the trial court’s original factual findings “voted in the May 18,

2018 primary runoff election.” This accelerated appeal followed.

                                       II. DISCUSSION

       In Esequiel’s first issue, he contends that the election code required Gutierrez to

present evidence that an illegal voter voted in the Precinct 4 JP runoff race and not merely

in the runoff election in which candidates for Governor of Texas; Commissioner, Precinct

4, Kleberg County; and Precinct 4 JP squared off for their respective nominations. In

Esequiel’s second issue, he contends that, under his interpretation of the election code,

Guiterrez presented legally or factually insufficient evidence to support the trial court’s

eighth and ninth factual findings and that the legal conclusion is erroneous as a matter of

law.

A.     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). An election contestant, such as Gutierrez in this case, has the burden

of proving by clear and convincing evidence that voting irregularities were present and

that they materially affected the election’s results. Guerra v. Garza, 865 S.W.2d 573,

576 (Tex. App.—Corpus Christi 1993, writ dism’d w.o.j.); Wright v. Bd. of Trustees of

Tatum Indep. School Dist., 520 S.W.2d 787, 790 (Tex. Civ. App.—Tyler 1975, writ

dism’d); see also Rivera v. Lopez, No. 13-14-00581-CV, 2014 WL 8843788, at *3 (Tex.

App.—Corpus Christi May 14, 2014, no pet.) (mem. op.).




                                              6
        We review the trial court’s judgment in an election contest for abuse of discretion.

McCurry v. Lewis, 259 S.W.3d 369, 372 (Tex. App.—Amarillo 2008, no pet.); see also

Rivera, 2014 WL 8843788, at *3. An abuse of discretion occurs when the trial court acts

“without reference to any guiding rules and principles.”                        Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); McCurry, 259 S.W.3d at 372. If

the trial court acted within its discretion, we cannot reverse the judgment simply because

we might have reached a different result. See Downer, 701 S.W.2d at 242.

        Esequiel’s second issue assails the legal sufficiency of two of the trial court’s

factual findings. 3 In a legal sufficiency review of the evidence to support a finding that

must be proved by clear and convincing evidence, we review all of the evidence in the

light most favorable to the verdict—or factual finding in this case—to ascertain whether a

reasonable factfinder could have formed a firm belief or conviction that the finding was

true. Horizon Health Corp. v. Acadia Healthcare Co., 520 S.W.3d 848, 866 (Tex. 2017).

We assume that the factfinder resolved disputed facts in favor of the finding if a

reasonable factfinder could do so. Id.               We disregard all evidence that a reasonable


        3   In the argument section of Esequiel’s brief, he contends that the evidence is both legally and
factually insufficient to support the trial court’s eighth and ninth factual findings. When performing a factual
sufficiency review under the clear and convincing standard, we give due consideration to the evidence that
the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). A factual sufficiency review also requires us to determine whether a factfinder could reasonably
form a firm belief or conviction about the truth of the allegations. In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (per curiam). The distinction with a legal sufficiency review is that factual sufficiency includes
disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). “If, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is
so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).

          Under the appropriate standard of review, we must consider the entire record. Esequiel’s brief
fails to survey the entire record, which includes testimony from eleven witnesses and approximately 185
exhibits. Accordingly, we conclude that Esequiel’s factual sufficiency challenge is inadequately briefed.
See TEX. R. APP. P. 38.1(g), (i); see also In re J.O.A., 283 S.W.3d at 345.
                                                       7
factfinder could have disbelieved other than undisputed facts that do not support the

finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

B.    Applicable Law

      1.     The Election Code

      “The tribunal hearing an election contest shall attempt to ascertain whether the

outcome of the contested election, as shown by the final canvass, is not the true outcome

because illegal votes were counted.” TEX. ELEC. CODE ANN. § 221.003(a)(1) (West,

Westlaw through 2017 1st C.S.). Section 221.009 of the election code provides:

      (a)    A voter who cast an illegal vote may be compelled, after the illegality
             has been established to the satisfaction of the tribunal hearing the
             contest, to disclose the name of the candidate for whom the voter
             voted or how the voter voted on a measure if the issue is relevant to
             the election contest.

      (b)    If the number of illegal votes is equal to or greater than the number
             of votes necessary to change the outcome of an election, the tribunal
             may declare the election void without attempting to determine how
             individual voters voted.

Id. at § 221.009 (West, Westlaw through 2017 1st C.S.). Section 221.009(b) expressly

vests the trial court with discretion to declare an election void without attempting to

determine how individual voters voted. Woods v. Legg, 363 S.W.3d 710, 716 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). Section 221.011 of the election code provides:

      (a)    If the tribunal hearing an election contest can ascertain the candidate
             or side of a measure for which an illegal vote was cast, the tribunal
             shall subtract the vote from the official total for the candidate or side
             of the measure, as applicable.

      (b)    If the tribunal finds that illegal votes were cast but cannot ascertain
             how the voters voted, the tribunal shall consider those votes in
             making its judgment.


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Id. at § 221.011 (West, Westlaw through 2017 1st C.S.).

       2.     Esequiel’s Case Law

       Esequiel never mentioned the cases he relies on here to the trial court. He now

cites Miller v. Hill, 698 S.W.2d 372, 375 (Tex. App.—Houston [14th Dist.] 1985) (per

curiam), writ dism’d w.o.j., 714 S.W.2d 313 (Tex. 1986), and Medrano v. Gleinser, 769

S.W.2d 687, 688 (Tex. App.—Corpus Christi 1989, no writ).

       In Miller, the election contest centered on the general election race for sheriff of

Brazos County, Texas. 698 S.W.2d at 373. The margin of victory was 162 votes, and

the evidence at trial was principally from (1) the county’s tax assessor and voter registrar

concerning the existence of any records showing certain persons were registered to vote

and (2) a deputy county clerk concerning signatures on the combination voters’ roster

and the affidavits of a challenged voter. Id. No voters were called to testify. Id. The

trial court signed a judgment finding that illegal votes were cast in the general election

and that such illegal votes were sufficient in number to change the outcome of the election

for the office of sheriff of Brazos County. Id. The trial court’s factual findings provided

that “218 persons voted in that election who never made a valid application for a voter

registration certificate in Brazos County, Texas.” Id. The Fourteenth Court of Appeals

interpreted the trial court’s reference to “election” to mean the contested sheriff’s election,

not the entire general election ballot. Id. The contestee and appellant in Miller raised a

legal sufficiency challenge to the trial court’s factual finding like the one raised by

Esequiel.   Id.   After surveying three statutory provisions from the election code’s




                                              9
predecessor, including the predecessor to section 221.009 of the election code, 4 the

court wrote, “A contestant must prove: (1) illegal votes, (2) illegal votes were cast in the

election being contested, and (3) that a different and correct result would have been

reached by not counting certain specified votes affected by the illegalities.” Id. at 375.

The court provided no authority supporting its three-prong test.

       The Texas Supreme Court dismissed the contestant’s writ of error for want of

jurisdiction. 714 S.W.2d at 315. However, three justices dissented from the dismissal

and addressed what they considered the shortcoming in the lower court’s interpretation

of section 221.009’s predecessor.              Id. at 316 (J. Kilgarlin dissenting).            The dissent

framed the merits-based issue as “whether [section 221.009’s predecessor] requires a

contestant prove that illegal votes were cast in the specific race contested or whether it

is sufficient for the contestant to prove that illegal votes were cast in the general election.”

Id. The dissent then wrote:

             The duty of a trial court under this article is clear. Instead of
       determining how individual voters voted in an election, a trial court may

       4   Section 221.009’s predecessor provided:

                 In an election contest or criminal proceeding in which the issue is relevant, any
       voter who fraudulently or illegally casts a ballot or who casts a fraudulent or illegal ballot at
       any general, special, or primary election may be required and compelled, after the fraud or
       illegality has been established by competent evidence before a tribunal of competent
       jurisdiction, to disclose in testimony before the tribunal having jurisdiction of the matter the
       name of any candidate for whom he voted and the way he voted on any question at the
       election. The voter’s testimony may be impeached by the testimony of other witnesses in
       regard to statements by the voter, either before or after the election, or by other competent
       evidence; and the issue of how the voter voted shall be decided on the basis of all the
       evidence before the tribunal. In an election contest, instead of undertaking to determine
       how individual voters voted, the tribunal may declare the election void and order another
       election if the number of illegal votes is sufficient to change the outcome of the election.
       This section applies to election contests and criminal proceedings instituted under any
       provision of this code or under any other statute of this state.

Act of May 24, 1985, 69th Leg., R.S. ch. 211, § 1, 1985 TEX. GEN. LAW 802, 1033 (codified at TEX. ELEC.
CODE ANN. § 221.009 (West, Westlaw through 2017 1st C.S.)).
                                                     10
       declare an election void if the number of illegal votes proved by the
       contestant is sufficient to have changed the outcome of the election. Under
       the court of appeals decision in this case, no person challenging an election
       can prevail without producing voter testimony. This is precisely the
       situation [section 221.009’s predecessor] allows a trial court to avoid.

                The court of appeals requires a contestant produce the illegal voters
       at trial and get each to testify that he voted for the contestant’s opponent.
       But what if those voters cannot be found? What if those voters are not
       amenable to subpoena? Even assuming they could be found and
       subpoenaed, what assurance do we have that they would remember for
       whom they voted, or if they voted in the contested race at all? How credible
       are we to consider persons already in violation of the law?

Id. at 317. The dissent’s interpretation of section 221.009’s predecessor as vesting the

trial court with discretion to invalidate election results without requiring voter testimony

complements the interpretation of the same statutory provision by the First Court of

Appeals in Woods, 363 S.W.3d at 716.

       In Medrano, the election contest centered on the general election race for

Commissioner, Precinct 1, Goliad County, Texas. 769 S.W.2d at 687. The margin of

victory was a single vote, and the evidence at trial was principally from (1) the county’s

voter registrar concerning several voters, including five specific voters, who cast ballots

in the election but had addresses outside the boundaries of Goliad County Commissioner

Precinct 1 and (2) the five specific voters who testified that they voted in the general

election and in the race of Goliad County Commissioner Precinct 1. Id. at 688–87.

While, in Medrano we referenced Miller and the specific passage Esequiel relies on in it,

we did not address the issue that Miller addressed because of the testimony of the five

specific voters. Medrano, 769 S.W.2d at 688–89. We did, however, discuss a question




                                            11
of witness credibility that concerned the dissenting supreme court justices four years

earlier in Miller. Medrano, 769 S.W.2d at 688–89. Specifically, we wrote:

                The factfinder is not compelled to believe uncontradicted testimony
        that is suspicious or that comes from an interested or biased source. If the
        testimony from an interested witness is of such a nature that it cannot
        readily be contradicted if untrue, an issue is presented as to the credibility
        of the witness. The same test applies when the witness shows bias.

Id. at 689 (citations omitted).

C.      Analysis

        Esequiel places much stock in the rule crafted in Miller that a contestant must

prove, among other things, that illegal votes were cast in the election being contested.

See 698 S.W.2d at 373. Esequiel’s argument in support of his first issue is that the rule

in Miller necessitates direct testimonial evidence from an illegal voter that he voted in a

particular race for public office. Given the facts in this case and the relevant election

code provisions, we respectfully decline Esequiel’s invitation to extend the second prong

in Miller.

        First, this case is distinguishable from Miller. In this case the trial court heard from

at least seven voters—all of whom were either relatives of or in romantic relationships

with relatives of Esequiel. In Miller, no voters testified. Id. Moreover, the election

contest in Miller involved a general election ballot, which necessarily included several

other offices, as opposed to a primary runoff ballot. Id. at 373. Therefore, unlike Miller,

the trial court’s ability to deduce the impact on the outcome of the Precinct 4 JP runoff

race, in this case, was enhanced by voter testimony and fewer offices on the entire ballot.




                                              12
       Second, our opinion in Medrano, 769 S.W.2d at 688, and the supreme court

justice’s dissenting opinion in Miller, 714 S.W.2d at 317 (J. Kilgarlin dissenting), explain

that a factfinder may find the testimony of a witness accused of casting an illegal vote

incredible or suspicious because of interest or bias. Given that the factfinder is not

obligated to believe testimony it deems incredible or suspicious, we respectfully decline

to read the election code as mandating that every voter accused of casting an illegal vote

must disclose the specific race in which he voted. Instead, the decision to elicit and

compel such testimony is best left to the parties and the trial court, respectively, to

determine on a case-by-case basis as envisioned by the election code.              See TEX.

ELEC. CODE ANN. § 221.009(a) (tasking a trial court with first determining that an illegal

vote was cast before compelling a voter to disclose the name of the candidate for whom

the voter voted). We overrule Esequiel’s first issue, as reframed.

       Lastly, Esequiel’s legal sufficiency challenge fails in light of the election code. In

it, Esequiel implicitly posits that his seven family members identified by the trial court as

casting illegal votes in the Precinct 4 JP runoff race may not have voted in that race and

instead may have voted in the Democratic runoff races for governor or county

commissioner. The election code provides that the trial court may void the election

results if the number of illegal votes is equal to or greater than the number of votes

necessary to change the outcome of an election. Id. at § 221.009(b). The trial court

may have rejected Esequiel’s implicit proposition and instead could have formed a firm

belief or conviction that Esequiel’s seven family members misrepresented their residency

in their voter applications to vote for Esequiel as opposed to the Democratic runoff


                                             13
candidates for governor, a statewide office, or county commissioner, whose two

candidates and their affinity to Esequiel’s family members, if any, are not mentioned in

any of the briefs.   See Horizon Health Corp., 520 S.W.3d at 866.          We overrule

Esequiel’s second issue, as reframed.

                                     III. CONCLUSION

      The trial court’s judgment is affirmed.

                                                            LETICIA HINOJOSA
                                                            Justice

Delivered and filed the
25th day of October, 2018.




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