Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 370th District Court of Hidalgo County,
Chief Justice Valdez and Justices Benavides and Hinojosa
M. BENAVIDES, Justice
appeal arises out of a final judgment from an election
contest filed by appellant Gilberto Perez, Jr. against
appellee Oziel Treviño for the position of
Commissioner, Place 5 of the City of Hidalgo, which ordered a
new runoff election to be held. By one issue, Perez asserts
that the trial court erred by ordering a new election rather
than declaring him the outright winner of the election. We
reverse and remand in part and affirm in part.
Hidalgo City Commissioner, Place 5 Election
2016, Perez and Treviño ran for the Place 5 seat on
the Hidalgo City Commission. Both candidates made it through
to a runoff election held on June 11, 2016. The final results
of the runoff election showed Treviño with 1, 460
votes and Perez with 1, 454 votes-a difference of six votes.
27, 2016, Perez filed an election contest alleging that the
outcome of the runoff was flawed because: (1) votes were
illegally cast by individuals who did not reside in Hidalgo;
(2) "numerous voters" cast ballots by illegally
utilizing an assistant in violation of the Texas Election
Code; and (3) numerous unauthorized mail-in ballots were cast
and counted. Treviño filed a general denial and a
two-day-long bench trial was held in November of 2016.
The Contest and Bench Trial
trial, several witnesses testified that they voted in-person
during the June 11, 2016 runoff election and were assisted in
the voting booth by either Marcela Gutierrez or Sara Ornelas.
The record shows that Gutierrez and Ornelas both worked on
behalf of a slate of candidates that included Treviño
in the runoff election. Specifically, Gutierrez testified
that she was a paid worker for the Treviño runoff
campaign. Gutierrez stated that she was stationed at the
polling places to provide assistance to voters if they asked
for it. Gutierrez testified that every time she assisted an
in-person voter, she undertook an oath and was also
"being observed" by the election personnel.
Although she is not a United States citizen and cannot vote,
Gutierrez testified that she learned how to use the voting
machines from watching videos on the Internet.
voter Gloria Garza testified that she voted in the runoff
election with Gutierrez's assistance, after Gutierrez
offered to assist her at the polling site. Garza stated that
she reads and writes in Spanish, but has "a problem with
[her] hands, " so she needed assistance to vote.
According to Garza, no one influenced her vote and she voted
for the candidate of her choice, without revealing the
voter Carlos Garza testified that he reads in Spanish and
does not have any physical disability that prevents him from
marking a ballot. Garza testified that he received assistance
to vote, but he could not recall the assistant's name.
Garza testified that he voted for Treviño, and no one
influenced his vote.
voter Daisy Valencia testified that she received assistance
voting from Sylvia Arjona, a Treviño campaign
volunteer, after Valencia "asked for [Arjona] . . .
because [she] trust[s] her." Valencia testified that she
has attention deficit disorder, so she has a hard time
focusing while voting. Valencia did not reveal who she voted
for, but stated that she voted for the candidate of her
choice and no one influenced her vote.
voter Guadalupe Rincon testified that despite having no
language or physical limitations to vote, she was assisted by
Ornelas at the voting booth in order to ensure that she voted
voter Oscar Rios testified that Ornelas also assisted him at
the voting booth despite having no language or physical
limitations to voting. Although Ornelas assisted him, Rios
stated that he voted for the candidate of his choice and no
one influenced his vote.
voter Angie Cavazos testified that she intended to vote for
Perez during the runoff election, but did not because
Gutierrez, who assisted Cavazos at the voting booth,
"came up behind [Cavazos]" and "started
punching the [voting] machine, " which marked a vote for
Treviño. Cavazos testified that she thought she was
receiving a tutorial from Gutierrez rather than casting a
vote. Cavazos stated that Gutierrez's actions that day
"bothers [her] a lot."
voter Karla Razo testified that she does not have any
language or physical limitations, but was assisted at the
voting booth by Gutierrez. According to Razo, Gutierrez
pointed at the names of the candidates that Gutierrez wanted
her to vote for. Razo stated that she followed
Gutierrez's recommendations, but could not recall the
specific names of the candidates.
voter Ana Razo testified that she does not have any language
or physical limitations to vote, but was assisted at the
voting booth by Gutierrez. Like Karla, Ana testified that
Gutierrez pointed to candidates' names on the ballot, and
Ana voted based on Gutierrez's recommendations.
voter Miguel Razo also testified that he does not have any
language or physical limitations to vote, but was assisted at
the voting booth by Gutierrez. Miguel stated that he had
voted in previous elections without assistance. Like Karla
and Ana, Miguel stated that Gutierrez pointed at names on the
ballot, and he followed her recommendations. Miguel testified
that he voted for Treviño.
voter Alondra Avila testified that she had no language or
physical limitations to vote, but was assisted by Gutierrez,
who pointed at various names on the ballot while
voted. Avila recalled that she voted for Treviño based
on Gutierrez's recommendation.
The Campaign Helpers and Mail-In Voters
helper Teresa Samano Revesz testified that she assisted in
Treviño's runoff campaign and personally organized
an effort to assist, collect, and mail-out more than forty
mail-in ballots from various voters throughout Hidalgo over a
two-day period. For the majority of these voters, Revesz
testified that she assisted them in filling out the ballot.
Some of the ballots, however, were already filled out and
sealed in an envelope when she picked them up from the voter
to mail it out. According to Revesz, these mail-in voters
"voted for the slate" of candidates that included
testified that she assisted the Treviño runoff
campaign. Arjona testified that with their permission, she
assisted more than fifty voters fill out a mail-in ballot,
and also took care of mailing the ballots for them. The