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Perez v. Trevio

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 22, 2017

GILBERTO PEREZ JR., Appellant,
v.
OZIEL TREVIÑO, Appellee.

         On appeal from the 370th District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Benavides and Hinojosa

          MEMORANDUM OPINION

          GINA M. BENAVIDES, Justice

         This 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.

         I. Background

         A. Hidalgo City Commissioner, Place 5 Election

         In 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.

         On June 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.

         B. The Contest and Bench Trial

         1. In-Person Voters

         At 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.

         First, 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 candidate's name.

         Second, 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.

         Third, 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.

         Fourth, 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 for Treviño.

         Fifth, 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.

         Sixth, 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."

         Seventh, 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.

         Eighth, 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.

         Ninth, 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.

         Tenth, 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

         Avila voted. Avila recalled that she voted for Treviño based on Gutierrez's recommendation.

         2. The Campaign Helpers and Mail-In Voters

         Campaign 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 Treviño.

         Arjona 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 ...


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