Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 93rd District Court of Hidalgo County, Texas.
Chief Justice Contreras and Justices Benavides and Hinojosa
CONTRERAS CHIEF JUSTICE
appeal concerns the June 9, 2018 run-off election for mayor
of Mission, Texas between appellant Armando O'Caña
and appellee Norberto 'Beto' Salinas.
O'Caña won the election but Salinas filed a
contest suit. See Tex. Elec. Code Ann. §
221.003 (West, Westlaw through 2017 1st C.S.). After a bench
trial, the trial court found that the true outcome of the
election could not be determined and it rendered judgment
voiding the election results.
appeal, O'Caña contends: (1) Salinas "failed
to prove" that the number of illegal votes was equal to
or greater than the number of necessary votes to change the
election outcome; (2) the trial court abused its discretion
by allowing the testimony of Salinas's expert witness,
George Korbel; (3) Salinas submitted no evidence of the
results of the "final canvass" of the election; (4)
the trial court abused its discretion by admitting certain
evidence over O'Caña's objections; and (5) the
trial court abused its discretion when it made an adverse
inference against O'Caña based upon spoliation of
conclude that the trial court's spoliation inference was
erroneous and the remaining evidence was legally insufficient
to support the trial court's finding that the number of
illegal votes exceeded O'Caña's margin of
victory. Therefore, we will reverse and render.
mayoral general election on May 5, 2018, Salinas received
more than 49.9 percent of the vote, coming three votes shy of
an outright majority, while O'Caña received around
41.6 percent, thereby forcing a run-off. Unofficial
results of the June 9 run-off election showed that
O'Caña defeated Salinas by 3, 475 votes to 3, 318,
a margin of 157. In his contest suit, filed on July 18,
Salinas argued that at least 158 illegal votes were counted
for O'Caña in the run-off. See id. §
221.003(a)(1). In particular, the petition alleged that at
least 158 O'Caña voters were either (1) illegally
assisted in casting their mail-in ballots (so-called
"ballot harvesting"), or (2) "bribed" to
cast votes for O'Caña. See id.
§ 86.010 (West, Westlaw through 2017 1st C.S.); Tex.
Penal Code Ann. § 36.02(a)(1) (West, Westlaw through
2017 1st C.S.).
took place between September 24 and October 5, 2018, during
which 33 witnesses testified, many of whom were elderly
voters speaking through a translator. Five witnesses
testified directly that they were given money in exchange for
their votes in the mayoral run-off election. These witnesses
stated that they were given money by specific people with
connections to the O'Caña campaign, including
O'Caña's sister-in-law Lupita
O'Caña. Salinas's expert witness, George
Korbel, testified that, according to his examination of
voting records, 48 early voters cast their ballots around the
same time as the five voters who testified they were paid,
and those 48 were assisted by the same people as the five
paid voters. Korbel opined that it was "very
likely" that all 48 voters were paid because "if
you pay one . . . you're going to pay everybody and
that's the way the world works."
other witnesses testified that their mail-in ballots, as well
as the mail-in ballots of four other people, were picked up
and deposited in the mail by individuals associated with the
O'Caña campaign. Evidence showed that none of the
carrier envelopes for the allegedly illegally harvested
ballots contained the signature of an assistant.
testified that there were 27 ballots known to have been
illegally harvested, and the carrier envelopes for each of
those ballots had a stamp depicting a folded United States
flag which appeared to come from a $50 roll of
stamps. He noted that a total of 322 mail-in
ballot carrier envelopes contained the same specific type of
stamp, only 19 of which contained an assistant's
signature. Korbel further noted that over 90% of the
folded-flag stamps received in the run-off election appeared
to come from a roll-whereas only 65.8% of those stamps
received in the general election appeared to come from a
roll. He opined, therefore, that "[a]s many as 303"
mail-in ballots may have been illegally harvested for the
witnesses testified that they saw an O'Caña
campaign worker, Esmeralda Lara, carrying a "big"
bag of ballots. One of the witnesses, Carmen Ochoa, estimated
that Lara was carrying around 200 ballots, although Ochoa
previously estimated that Lara was carrying only twenty to
forty ballots. Lara herself testified that she worked for the
O'Caña campaign for the general election but
secretly switched to work for the Salinas campaign for the
testimony, O'Caña denied that he and his team were
involved in "a systematic and flagrant scheme to cast
illegal votes." However, he conceded that his campaign
made over $25, 000 in expenditures to VO Consulting Services,
a political consulting firm recently established by
O'Caña's niece Veronica-but he did not have
any documentation showing how the firm spent the funds.
O'Caña also conceded that he had erased some text
messages from his phone "[b]efore, during, and
after" the election contest suit had already been filed,
including some from Veronica, Lupita, and Lara. He explained
that it was his "standard practice" to delete text
messages and emails.
Solis, a process server, stated that she attempted on ten or
twelve different occasions to serve subpoenas on Lupita and
Veronica to appear at trial. Solis agreed that Salinas's
attorneys advised her not to attempt to serve Lupita and
Veronica during a funeral of an O'Caña family
member which they both attended.
trial court found that more than 158 illegal votes were
counted and, thus, the true outcome of the election could not
be ascertained. On November 6, 2018, the trial court rendered
judgment declaring the results of the election void and
directing the Mission city council to order a new mayoral
election to take place within sixty days. The trial court
also made findings of fact and conclusions of law, including
29. The O'Caña campaign engaged in an orchestrated
conspiracy to pursue illegal votes through bribing voters and
harvesting mail-in ballots.
30.. . . Dr. O'Caña admitted that he had no
receipts, expenditure reports, or any other record or
document that would evidence the work that VO Consulting
Services performed for his campaign.
31. Dr. O'Caña also admitted he deleted his
records before, during, and after this lawsuit was filed,
including his communications with VO Consulting Services. . .
. The owner of VO Consulting, Veronica O'Caña,
could not be subpoen[a]ed to testify at trial or via
deposition, although 12 or more attempts were made.
36. . . . The Court finds that at least 48 voters were bribed
to vote for Dr. Armando O'Caña during the June
run-off election, but many more voters were likely bribed.
39. The O'Caña campaign systematically violated
the Texas Election Code by taking mail-in ballots from voters
and depositing them in the mail, without signing the form on
the back side of the carrier envelope to indicate assistance
was rendered, making the ballots and votes illegal.
54. Mr. Korbel testified that based on his review of the
testimony, the affidavits, election materials, and the
testimony at trial, at least 27 voters had their votes
harvested by members of the O'Caña campaign. Mr.
Korbel testified that the range of harvested voters was
likely 27-303 voters.
55. I find clear and convincing evidence that the number of
illegally handled mail in ballots by members of the
O'Caña campaign is in excess of 150 although it is
impossible to know the exact number.
56. The final canvass reflected a margin of 157 votes between
the victor, Dr. Armando O'Caña, and the incumbent
Mayor, Norberto "Beto" Salinas.
61. The precise number of illegal votes cast for Armando
O'Caña for mayor in the run[-]off election of June
9, 2018, cannot be ascertained but it is in excess of 158
62. In addition to the facts found, the court engages in an
adverse inference against the contestee, Dr. Armando
O'Caña, because of his destruction of
presumptively adverse evidence in his control, akin to
spoliation. He has a duty to preserve evidence when he knows,
or reasonably should know, that [(a)] there is a substantial
chance that a claim will be filed, and (b) that evidence in
its possession or control will be potentially relevant to
that claim. The Court finds Dr. O'Caña and/or his
agents intentionally destroyed the correspondence between Dr.
O'Caña and his campaign workers in order to
conceal relevant evidence. The Court presumes this destroyed
evidence supports a finding that at least 158 votes were
perfected this appeal, thereby automatically suspending
execution of the trial court's judgment. See
Tex. Elec. Code Ann. § 232.016 (West, Westlaw through
2017 1st C.S.). We ordered the appeal accelerated pursuant to
the election code. See id. § 232.015(a) (West,
Westlaw through 2017 1st C.S.).
first issue, O'Caña argues that Salinas
"failed to prove" that the number of illegal votes
was equal to or greater than his margin of victory in the
run-off election. We construe the issue as challenging the
legal sufficiency of the evidence to support the trial
Standard of Review
reviewing a judgment in an election contest, we must
determine if the trial court abused its discretion.
McCurry v. Lewis, 259 S.W.3d 369, 372 (Tex.
App.-Amarillo 2008, no pet.); Gonzalez v.
Villarreal, 251 S.W.3d 763, 774 (Tex. App.-Corpus
Christi 2008, pet. dism'd). A trial court abuses its
discretion when it acts "without reference to any
guiding rules and principles." Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
"The sufficiency of evidence supporting a trial
court's finding of fact may be a relevant factor in
determining whether the court abused its discretion."
Jones v. Morales, 318 S.W.3d 419, 423 (Tex.
App.-Amarillo 2010, pet. denied). In reviewing the legal
sufficiency of the evidence under a clear and convincing
standard, we look at all the evidence, in the light most
favorable to the judgment, to determine if the trier of fact
could reasonably have formed a firm belief or conviction that
its finding was true. In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002). We presume that the trier of fact resolved
disputed facts in favor of its findings if a reasonable trier
of fact could do so. Id. We disregard any contrary
evidence if a reasonable trier of fact could do so, but we do
not disregard undisputed facts. Id.
the heightened [clear and convincing] standard of
review," we "must nevertheless still provide due
deference to the decisions of the factfinder, who, having
full opportunity to observe witness testimony first-hand, is
the sole arbiter when assessing the credibility and demeanor
of the witnesses." In re A.B., 437 S.W.3d 498,
503 (Tex. 2014).
election contest, the trial court must "attempt to
ascertain whether the outcome of the contested election, as
shown by the final canvass, is not the true outcome
because," as pleaded in this case, "illegal votes
were counted." Tex. Elec. Code Ann. §
221.003(a)(1). An "illegal vote" is "a vote
that is not legally countable." Id. §
221.003(b). An election contestant has the burden of proving
by clear and convincing evidence that voting irregularities
were present and that they materially affected the
election's results. Flores v. Cuellar, 269
S.W.3d 657, 660 (Tex. App.-San Antonio 2008, no pet.);
Gonzalez, 251 S.W.3d at 773.
election code chapter 86, a person casting a mail-in ballot
who would be eligible to receive assistance at a polling
place may select a person to assist the voter in
preparing the ballot. Tex. Elec. Code Ann. § 86.010(a).
Any assistance given to a mail-in voter is limited to that
which is authorized by the election code for voters at a
polling place,  except that a mail-in voter "with a
disability who is physically unable to deposit the ballot and
carrier envelope in the mail may also select a person . . .
to assist the voter by depositing a sealed carrier envelope
in the mail." Id. § 86.010(b). If a person
assists a voter, the assistant must sign the written oath
that is part of the certificate on the voter's official
carrier envelope. Id. § 86.010(c). If a voter
is assisted in violation of these rules, the voter's
ballot may not be counted. Id. § 86.010(d).
86 also provides that a person commits an offense by
knowingly possessing an official ballot or carrier envelope
provided to another, unless the person: (1) is lawfully
assisting a voter who is eligible for assistance; and (2) has
complied fully with the requirements of the chapter, which
include the provision of the person's name, address, and
signature on the reverse side of the envelope. Id.
§§ 86.0051(b) (West, Westlaw through 2017 1st
C.S.), .006(f)(4). A ballot returned in violation of section
86.006 may not be counted. Id. § 86.006(h).
It is a
second-degree felony offense for a person to intentionally or
knowingly offer, confer, or agree to confer on another, or
solicit, accept, or agree to accept from another, any benefit
as consideration for the recipient's vote. Tex. Penal
Code Ann. § 36.02(a)(1).
court can ascertain the candidate for which an illegal vote
was cast, the court must subtract the vote from the
candidate's official total. Tex. Elec. Code Ann. §
221.011(a) (West, Westlaw through 2017 1st C.S.). If the
court finds that illegal votes were cast but cannot ascertain
which candidate the illegal votes were cast for, it shall
consider those votes in making its judgment. Id.
§ 221.001(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 court may declare the election
void without attempting to determine how individual voters
voted. Id. § 221.009(b) (West, Westlaw through
2017 1st C.S.).
first address Salinas's contention, made in his appellate
brief, that O'Caña waived his legal sufficiency
issues because he "does not directly attack or identify
any specific findings of fact he is challenging for legally
insufficient evidence-rather, he generally attacks the
judgment and the evidence." See In Interest of
M.W., 959 S.W.2d 661, 664 (Tex. App.-Tyler 1997, writ
denied) ("In an appeal from a nonjury trial, an attack
on the sufficiency of the evidence must be directed at
specific findings of fact, rather than at the judgment as a
whole."); Katz v. Rodriguez, 563 S.W.2d 627,
631 (Tex. Civ. App.- Corpus Christi 1977, writ ref'd
n.r.e.) ("Unless the trial court's findings of fact
are challenged by point of error on appeal, . . . they are
binding on the appellate court."); see also Milton
M. Cooke Co. v. First Bank & Tr., 290 S.W.3d 297,
303 (Tex. App.-Houston [1st Dist.] 2009, no pet.) ("[W]e
will overrule a challenge to fact findings that form the
basis of a conclusion of law or disposition when the
appellant does not challenge other fact findings that support
that conclusion or disposition.").
disagree that the issues have been waived. Although
O'Caña's initial appellate brief does not
refer to individual findings of fact by number, the issues
raised and the arguments made in support thereof make clear
that he is challenging the trial court's central findings
regarding the quantity of illegal ballots cast. In
particular, O'Caña's first issue disputes the
finding that more than 158 illegal votes were counted.
Further, there are no unchallenged findings of fact which
would independently support the judgment. Cf. Milton M.
Cooke Co., 290 S.W.3d at 303. Accordingly, the issues
have not been waived.
of our consideration of O'Caña's first issue,
we consider the arguments made in his fifth issue, in which
he contends that the trial court erred by making an
"adverse inference" against him based on his
testimony that he deleted text messages on his phone
"[b]efore, during, and after" the election contest
review the trial court's legal determination of whether a
party spoliated evidence for an abuse of discretion.
Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 27 (Tex.
2014). The party seeking a remedy for spoliation must
demonstrate that the other party breached its duty to
preserve material and relevant evidence. Id. at 20.
A duty to preserve evidence exists when (1) a party knows or
reasonably should know that there is a substantial chance a
claim will be filed; and (2) the evidence is relevant and
material. Id.; Miner Dederick Const., LLP v.
Gulf Chem. & Metallurgical Corp., 403 S.W.3d 451,
465 (Tex. App.-Houston [1st Dist.] 2013, pet. denied). A
party knows or reasonably should know that there is a
substantial chance a claim will be filed if a reasonable
person would conclude from the severity of the incident, and
other circumstances surrounding it, that there was a
substantial chance for litigation at the time of the alleged
spoliation. Miner Dederick, 403 S.W.3d at 465. A
"substantial chance of litigation" arises when
"litigation is more than merely an abstract possibility
or unwarranted fear." Brookshire Bros., 438
S.W.3d at 20.
case, O'Caña testified that, as a matter of
routine practice, he deleted some texts from his phone,
including some from people associated with his campaign and
alleged to have engaged in bribery and harvesting. He stated
he deleted the texts "before, during, and after"
the election contest suit was filed. Salinas did not request
a spoliation inference during trial-instead, he first
suggested it in his proposed conclusions of law. The trial
court found that "O'Caña and/or his
agents intentionally destroyed the correspondence
. . . in order to conceal relevant evidence," but the
court refused to make an explicit finding that
O'Caña had a duty to preserve evidence at the time
he deleted the texts, despite the fact that Salinas included
exactly such a finding in his proposed conclusions of law.
no evidence in the record that litigation was more than
"an abstract possibility" prior to the time the
election contest suit was filed; accordingly,
O'Caña had no duty to preserve communications
prior to that time. See id. There was no evidence
that Salinas requested a recount, and he did not file his
election contest until 39 days after the election was held.
Further, we find no direct evidence in the record
establishing that the texts which O'Caña deleted
after the contest was filed were in any way relevant to any
issues within the court's scope of inquiry in the
election contest. See Diaz v. Valadez, 520 S.W.2d
458, 459 (Tex. Civ. App.-Corpus Christi 1975, no writ)
(noting that "in an election contest only such matters
happening on the day of the election and pertaining strictly
to the election may be inquired into or determined by the
trial court"); see also Estrada v. Adame, 951
S.W.2d 165, 168 n.2 (Tex. App.-Corpus Christi 1997, orig.
proceeding) (same). Intentional spoliation "may, absent
evidence to the contrary, be sufficient by itself to support
a finding that the spoliated evidence is both relevant and
harmful to the spoliating party." Brookshire
Bros., 438 S.W.3d at 15. But here, Salinas's counsel
did not ask O'Caña, Lara, or any other witness
about the content of the deleted texts, nor did he show that
the content of those texts was undiscoverable by other
methods. Moreover, O'Caña testified that he
deletes his text messages and emails on a regular basis
because he "get[s] over a thousand text messages
constantly, emails the same thing." Because he regularly
deleted his texts and emails, any such correspondence
remaining after the election contest was filed would not have
constituted evidence of a "conspiracy" to obtain
illegal votes arising prior to the election, as Salinas
that Salinas failed to meet his burden to show that
O'Caña breached a duty to preserve material and
relevant evidence. See id. at 20. The trial court
could not have reasonably concluded merely from
O'Caña's testimony that O'Caña
harbored the specific intent to "conceal discoverable
evidence" when he deleted the texts at issue. See
Knoderer v. State Farm Lloyds, 515 S.W.3d 21, 35 (Tex.
App.-Texarkana 2017, pet. denied).
further that, while the trial court's discretion to
remedy an act of spoliation is broad, it is not limitless.
Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 489
(Tex. 2014). In the jury trial context, a trial court may
only submit a spoliation instruction "if it finds (1)
the spoliating party acted with intent to conceal
discoverable evidence, or (2) the spoliating party acted
negligently and caused the nonspoliating party to be
irreparably deprived of any meaningful ability to present a
claim or defense." Knoderer, 515 S.W.3d at 35;
see Brookshire Bros., 438 S.W.3d at 23 ("A
party must intentionally spoliate evidence in order for a
spoliation instruction to constitute an appropriate
remedy."). Therefore, as with any sanction, before
instructing a jury on spoliation, the trial court must find
"that a lesser remedy would be insufficient to
ameliorate the prejudice caused by the spoliating party's
conduct." Brookshire Bros., 438 S.W.3d at 19.
spoliation inference is a sanction akin to a jury
instruction. And here, in light of the fact that there was
direct evidence of only 31 illegal votes in an election with
a victory margin of 157, the spoliation inference likely had
a major influence on the trial court's final ruling-and
it may even have been dispositive. See id. at 23
(observing that the submission of a spoliation instruction
may, at least in some instances, be "tantamount to a
death-penalty sanction"). Nevertheless, there is no
indication that any lesser sanctions were considered or
tested in this case, and the trial court did not make any
finding that a lesser remedy would be insufficient to
ameliorate the prejudice that may have been caused by
O'Caña's conduct. See id.
dissent suggests that "Salinas's inability to
question Veronica O'Caña may serve as a basis to
support" the spoliation inference. This suggestion goes
far beyond the trial court's factual findings. It relies
on an assumption that O'Caña or his attorney
controlled Veronica to the extent that they had the ability
to compel her presence at trial, a finding the trial court
did not make and which is not supported by the record.
Regardless, the process server's testimony regarding her
failed attempts to serve subpoenas on O'Caña's
family members does not support the trial court's finding
that "Dr. O'Caña and/or his agents
intentionally destroyed the correspondence between Dr.
O'Caña and his campaign workers." And neither
Salinas nor the dissent cite any authority establishing that
a party's inability to serve subpoenas on potential
witnesses would independently allow the trial court to make
inferences adverse to the other party.
these circumstances, we conclude that the trial court abused
its discretion by making an adverse inference based on
intentional spoliation. We sustain O'Caña's
fifth issue, and we do not consider the adverse inference in
our legal sufficiency analysis.
argues by his first issue that the evidence did not support
the trial court's finding that more than 158 illegal
ballots were cast in the June 9, 2018 mayoral run-off
election. He contends that, even if the trial court credited
all the testimony regarding alleged bribery and voting
harvesting, the maximum number of illegal votes is less than
his victory margin of 158; therefore, the trial court could
not have concluded that the outcome of the election was
response, Salinas notes that the direct testimony of the
individual voters that they were bribed or their ballots were
harvested is not the only evidence of illegal votes in this
case. Instead, there was also circumstantial evidence
supporting the trial court's finding that more than 158
illegal votes were counted. Specifically, Salinas points to
Korbel's testimony, based on the timing of early votes
and identity of assistants, that 48 voters were
"likely" bribed; and his testimony, based on the
stamps used on mail-in ballot carrier envelopes, that
anywhere from 27 to 303 ballots were illegally harvested.
further points to Carmen Ochoa's testimony as supportive
of the judgment. Ochoa stated that that she saw Lara carrying
"a bunch of ballots in her hand" at an assisted
living facility for elderly residents. In addition to
Ochoa's testimony, Maribel Salinas also testified that
she saw Lara carrying a "bag" of mail-in ballots at
an assisted living facility. Salinas contends that
Maribel's testimony alone supports the judgment since a
"bag" of ballots could potentially "hold more
than 150 ballots."
we consider evidence of bribed votes. By this Court's
count, five witnesses testified directly that they were paid
for their votes; those five witnesses further provided clear,
direct testimony establishing that eight other voters were
paid for their votes. The trial court did not abuse its
discretion in finding by clear and convincing evidence that
these 13 votes were illegally cast.
Korbel's testimony regarding the "very likely"
quantity of additional bribed votes does not meet the
exacting standard of "clear and convincing." Korbel
stated that 48 early voters cast their ballots around the
same time as the five voters who testified they were paid,
and were assisted by the same people as those five voters.
Korbel opined that all 48 voters were also paid; but he based
that opinion on an "assumption" that "if you
pay one . . . you're going to pay everybody and
that's the way the world works." He did not explain
the underlying basis for this assumption, and though Korbel
is undoubtedly an expert in election analyses concerning
racially polarized voting, there is nothing in his background
that would indicate an expertise in vote bribery. His
testimony that "if you pay one . . . you're going to
pay everybody" is unsupported by any factual basis or
underlying reasoning. This conclusory testimony is not
probative. See City of San Antonio v. Pollock, 284
S.W.3d 809, 818 (Tex. 2009) (noting that if no basis for an
expert opinion is offered, or the basis offered provides no
support, the expert opinion is merely a conclusory statement
and cannot be considered probative evidence; i.e., a claim
will not stand or fall on the mere ipse dixit of a
turn to the issue of harvested ballots. Fourteen witnesses
testified that their mail-in ballots were picked up and
deposited in the mail by unrelated people whose signatures
did not appear on the carrier envelope. There was also direct
testimony of four additional harvested ballots. Therefore,
there was direct testimony as to 18 harvested ballots, and
the trial court did not abuse its discretion in finding by
clear and convincing evidence that these votes were illegal.
direct evidence of both bribed votes and harvested ballots,
there were at most 31 votes for which there was clear and
convincing evidence of illegality-far short of the amount
which would cast doubt on the results of the election. This
case therefore hinges on the circumstantial evidence of
evidence includes Korbel's opinion regarding the quantity
of harvested ballots, which was based on his analysis of the
stamps appearing on the mail-in ballot carrier envelopes.
Korbel stated that there were 27 ballots known to have been
harvested, and each of their carrier envelopes had a
folded-flag stamp which appeared to come from a $50 roll. He
stated, based on his examination of all mail-in carrier
envelopes in the run-off election, that 303 of those
envelopes had the same folded-flag roll stamp and were not
signed by an assistant. He opined that "no poor person
would buy a roll of stamps for $50," so the total number
of illegally harvested ballots could be as many as
opinion was founded on several layered inferences and
assumptions. In particular, he seems to assume that all of
the mail-in voters in Mission are "poor" and
therefore could not afford a $50 roll of stamps. This
assumption was critical to Korbel's inference that some
or all of the envelopes bearing the folded-flag roll stamp
were subject to illegal harvesting. Without this assumption,
there would be no reason to believe that an envelope bearing
a particular type of stamp is any more or less likely to have
been cast due to illegal harvesting.
code chapter 82 explains that a person is eligible to vote by
mail-in ballot if the person: (1) is 65 years of age or older
on election day; (2) expects to be absent from the
person's county of residence on election day and during
the regular in-person early voting hours; (3) has a sickness
or physical condition that prevents appearance at the polling
place on election day without a likelihood of needing
personal assistance or of injuring the person's health;
or (4) is confined in jail and is otherwise eligible to vote.
Tex. Elec. Code Ann. §§ 82.001-.005 (West, Westlaw
through 2017 1st C.S.). A mail-in voter must meet one of
these four conditions, but Korbel did not elucidate any
reason to assume that a mail-in voter must be economically
destitute. His testimony to that effect was merely his
ipse dixit, and it is non-probative for that reason.
See City of San Antonio v. Pollock, 284 S.W.3d at
881. Korbel also appears to have assumed that all illegally
harvested votes were cast in favor of O'Caña.
However, many of the witnesses that testified their ballots
were illegally harvested did not specify who they voted for;
and of those who did testify as to who they voted for, more
stated they voted for Salinas than for
assuming that no Mission voters are capable of affording a
$50 roll of stamps, Korbel's testimony simply did not
justify a reasonable inference that, if a mail-in ballot
contains a stamp from a $50 roll and no assistant's
signature, that stamp must have been placed there by an
unauthorized person. This conclusion does not rest, as the
dissent argues, on an implicit assumption that 357 voters
"each individually and independently purchased a $50
roll of identical stamps." It was Salinas's burden
to establish the requisite number of illegal votes by clear
and convincing evidence. See Flores, 269 S.W.3d at
660. The evidence showed that there were 303 envelopes with
rolled folded- flag stamps that did not contain an
assistant's signature, but Korbel seems to have
entertained only two possibilities for why that may have
occurred: (1) each of the 303 voters individually and
independently purchased a $50 roll of identical stamps, or
(2) rampant fraud occurred. Korbel's inference that all
of those ballots may have been illegally harvested was based
entirely on his assumption that, because the first
possibility is highly unlikely, the second possibility must
be the truth. This is a false dichotomy, however, because
there are other eminently plausible reasons for this scenario
which comport with the law. For example, a mail-in voter
could have personally brought a completed ballot to a post
office and purchased an individual stamp from a clerk; or a
mail-in voter could have given his or her ballot to a family
member or co-dweller to stamp and mail. See Tex.
Elec. Code Ann. § 86.006(f)(1), (2). In either case, the
existence of a rolled folded-flag stamp on the voter's
carrier envelope would say absolutely nothing about whether
the ballot was illegally harvested or otherwise not legally
was other circumstantial evidence upon which the trial court
found more than 13 bribed votes. In particular,
O'Caña stated that his campaign paid over $25, 000
to his niece's newly-established political consulting
firm, but he did not obtain any documentation showing how the
firm spent the funds. In addition, as noted, Ochoa and
Maribel Salinas each testified that they saw Lara carrying a
bag of ballots. At trial, Ochoa guessed that Lara was
carrying around 200 ballots. O'Caña argues that
Ochoa's estimate of the quantity of ballots possessed by
Lara could not serve as clear and convincing evidence because
Ochoa characterized that testimony as a
"guess." We agree. "[F]indings based on
evidence that allows for no more than speculation-a guess-are
based on legally insufficient evidence." Serv. Corp.
Int'l v. Guerra, 348 S.W.3d 221, 229 (Tex. 2011).
Though we must defer to the trial court's credibility
determinations, we cannot say that Ochoa's
"guess," even when combined with Maribel
Salinas's testimony and the other circumstantial
evidence, constitutes "clear and convincing"
evidence that more than 18 O'Caña votes were
considering the entire record, we conclude that there was
legally insufficient evidence to support the trial
court's finding, by clear and convincing evidence, that
the number of illegal votes is equal to or greater than the
number of votes necessary to change the outcome of the
election. See Tex. Elec. Code Ann. §
221.012(b). The trial court could not have formed a firm
belief or conviction in this finding based only on the
evidence adduced at trial. See In re J.F.C., 96
S.W.3d at 266. In light of the foregoing, we further conclude
that the trial court abused its discretion in rendering
judgment voiding the election results. See McCurry,
259 S.W.3d at 372. O'Caña's first issue is
sustained. We need not address his other issues as they are
not dispositive. See Tex. R. App. P. 47.1.
fraud perverts democracy and constitutes a grave offense, not
only against the opposing candidate but against society as a
whole. Still, in an era when State and federal elected
officials seek to sow doubt and mistrust of government by
grossly exaggerating the prevalence of illegal voting, we
must also remain vigilant to safeguard a voter's right to
have his or her lawful vote counted. The Texas Legislature
has prescribed a heightened standard of proof in election
contests for precisely this reason.
case has uncovered clear and convincing evidence of election
fraud, resulting in at least 31 illegal ballots being cast.
This is extremely troubling. But the evidence in this case
showed that both candidates benefitted from these
irregularities. In any event, our inquiry in this proceeding
is not to determine whether crimes have been committed, nor
is it to determine whether there was a "conspiracy"
to obtain illegal votes, as Salinas alleges-we confidently
leave those questions to the able hands of the criminal
justice system. Our sole task here is to decide whether the
trial court abused its discretion in finding clear and
convincing evidence of more than 157 illegal votes. As
illustrated herein, the trial court's conclusion relied
on unreasonable inferences and unsupported assumptions. To
find that a rational trier of fact could have formed a
"firm belief or conviction" that 157 illegal votes
were cast, based on this record, would contravene the
legislature's clear intent that strong, clear proof must
be adduced before a facially valid vote is discarded.
Accordingly, in light of the entire record-and mindful of our
solemn duty to preserve and protect the integrity of the
election process through faithful application of the law-we
cannot say that the trial court acted within its discretion
when it concluded that the heightened standard has been met
in this case.
reverse the trial court's judgment declaring the results
of the June 9, 2018 Mission mayoral run-off election void,
and we render judgment denying Salinas's election contest
suit. In order to expedite final resolution of this matter,
no motion for rehearing will be entertained. See
Tex. Elec. Code Ann. § 232.014(e) (West, Westlaw through
2017 1st C.S.).
LETICIA HINOJOSA JUSTICE
majority sustains two issues asserted by Dr. Armando
O'Caña, the contestee below and appellant before
us. It sustains O'Caña's fifth issue, which
contends that the trial court abused its discretion in
finding that O'Caña spoliated evidence and making
a spoliation inference, and his first issue, which contends
that Norberto 'Beto' Salinas, the contestant below
and appellee before us, "failed to prove" that the
number of illegal votes was equal or greater than the number
of necessary votes to change the election outcome.
the majority errs in sustaining O'Caña's legal
sufficiency challenge by, among other things, reading the
"clear and convincing" burden of proof Salinas bore
at trial to mean that Salinas was obligated to prove for whom
each illegal vote was cast. This is a review we would employ
had the trial court rendered a judgment declaring Salinas the
winner. Instead, the trial court found that it could not
determine the true outcome of the election and ordered a new
trial. I believe Salinas presented legally sufficient
evidence under a clear and convincing standard of this
applicable finding. Therefore, I respectfully dissent.
the incumbent mayor, and O'Caña, a city
councilmember, had twice competed against each other in
mayoral elections before the 2018 mayoral election. The
results of the May 5, 2018 general election provided:
Early In-Person Vote
tally necessitated a runoff between Salinas and
O'Caña. The results of the June 9, 2018 runoff
Early In-Person Vote
18, 2018, Salinas filed his original petition for election
contest. A bench trial began on September 24, 2018. At trial,
Salinas presented direct, circumstantial, and expert evidence
in support of his allegations that O'Caña's
158 vote margin resulted from O'Caña's
campaign bribing voters and harvesting mail-in ballots.
"Benji" Tijerina manages Top Gun Sprinters, a
business that rents luxury Mercedes Benz Sprinter vans for
special occasions. Tijerina testified that, around the time
of the runoff election, Veronica O'Caña,
O'Caña's niece and proprietor of recently
formed VO Consulting, rented a van from Top Gun Sprinters for
the sole purpose of shuttling voters to the polls. The
van's windows had "limo tint," which prevented
individuals outside from seeing inside unless their face was
pressed against a window. Veronica paid Tijerina the rental
fee for the Sprinter van in cash during a brief encounter in
a parking lot.
James Deckard, one of the voters ferried in a Sprinter van,
testified about his encounters with O'Caña's
campaign. Deckard's trial testimony mirrored that of a
pre-trial affidavit he executed. In Deckard's affidavit,
which was admitted at trial, he avers:
On 4/28/18 Benji Tijerina contacted me on Facebook Messenger.
He asked me 'Yo bro does any of your family wanna [sic]
vote I will pay tem [sic] 10 bucks free transportation less
then 3 mins'. I told him I would vote.
On 5/1/18, Benji messaged me on Facebook Messenger with
'U ready to vote bro.' I said I was at city hall. He
called me on Facebook Messenger and told me to meet them at
Whataburger on Old 83 in Mission, Texas. I met them there. I
left my car at Whataburger and got into their white Mercedes
van. In the van, were people working the O'Cana campaign.
These people were Benji Tijerina, Jesus Rodriguez (the
driver), the brother to Jesus Rodriguez (I don't know his
name but was shown a picture of Charlie Rodriguez and
identified him as the brother), and an older gentleman (I
don't know his name either but was shown a picture and
identified him as Jesse Lopez). After they picked me up, they
went and picked up a few more people . . . . They then drove
us to Mission City Hall. The van stopped at the O'Cana
campsite and Charlie Rodriguez and Jesus Lopez got out of the
van. Cindy Pacheco then entered the van. I don't know her
by name, but was shown a picture of her and identified her.
She coached us and told us that we needed to say that we
needed assistance to vote and that we wanted Cindy to assist
us. We then voted from inside the van and Cindy Pacheco
assisted us in voting. Once we finished voting, Cindy then
told the driver, Jesus Rodriguez, 'Yes, they voted. You
can pay them.' They then dropped me off at my dad's
house . . ., the driver Jesus Rodriguez paid me $10.
On 6/1/18, Jesus Rodriguez contacted me on Facebook Messenger
stating 'hey it's benji's cousin I was wondering
if you an[d] your wife wanted to come vote again.' I
didn't respond. He then showed up to my house in the van.
He got off the van and came to my door and told me that this
time they were paying $20 a vote and if I got 3 more votes
they would pay me $60 to $80 more plus the $20 for each
voter. Jesus Rodrigez then coached me to ask for assistance
and ask for Lupita [O'Caña]. I didn't remember
Lupita's name, but when shown a picture I was able to
identify her. After we voted, they brought food to the [sic]
told us if we know anyone else that wants to vote there is
plenty of food. I asked them to take me to the store and they
said they could not because it would have looked suspicious.
They also told us to turn off our phones as soon as we got in
the van. They then dropped me off at my dad's house . . .
. Jesus Rodriguez then gave the money to Charlie Rodriguez
and then Charlie Rodriguez gave the money $20 to me.
Gomez, Pamela Durr, and Arnulfo Navarro also testified that
they were paid by O'Caña's campaign to vote
for him. Durr and Gomez recalled that, like Deckard, they
were ferried to the polls in a van, told to ask the poll
workers for assistance, voted with assistance of an
O'Caña's campaign worker in the privacy of the
van, and were paid for their vote. Durr identified Guadalupe
"Lupita" O'Caña as the O'Caña
campaign worker who instructed her and two other voters in
the van to request her assistance with voting. After voting,
Durr was paid $20. Gomez testified that Gloria Trevino, an
O'Caña campaign worker, repeatedly called her and
then showed up at Gomez's house unannounced. Trevino
transported Gomez to the polls. Gomez further testified that
Trevino paid her, her husband, her son, and her
daughter-in-law $10 each to vote for O'Caña.
Navarro recalled that he and two of his brothers-Jaime and
Ezequiel-were each paid $20 for their vote by the
Mail-In Ballot Harvesting
witnesses,  including Emeterio Gutierrez, testified as
to illegal mail-in ballot harvesting by the O'Caña
campaign. Gutierrez, an eighty-two year-old Mission resident,
resides at the Palms Plaza, an apartment complex for elderly
individuals. Gutierrez testified that Esmeralda Lara, an
O'Caña campaign worker of questionable allegiance,
presented him with a June 9, 2018 runoff mail-in ballot and
obtained his signature on a carrier envelope. The carrier
envelope that Gutierrez signed, admitted by the trial court,
was mailed using a stamp that bears the image of a folded
American flag (folded flag stamp); it is marked
"rec'd May 24, 2018." The back of
Gutierrez's carrier envelope contains an instruction
before Gutierrez's signature that provides,
"Instructions to Voter: Seal this
envelope, and then sign your name in the space below. This
envelope must be sealed by the voter before it leaves the
voter's hands. Do not sign this envelope unless the
ballot has been marked by you or at your direction."
Gutierrez testified that Lara took the ballot and
accompanying envelopes before he had the opportunity to mark
the ballot or place a stamp on it. Moreover, Gutierrez
observed Lara visiting other residents at the Palms Plaza
apartments even though neither she nor any of her family
members reside there.
Ochoa testified that she encountered Lara exiting the office
at La Posada apartments, an assisted living facility for
elderly individuals, while Ochoa paid her uncle's monthly
rent. Ochoa saw Lara "with a bunch of ballots in her
hand," which at trial Ochoa estimated to be
Salinas, Salinas's daughter, testified that she witnessed
Lara walking around the En Aqua Village, a senior housing
community, with ballots in a shoulder bag.
the carrier envelopes for the runoff election admitted at
trial indicate that Lara assisted voters ...