CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS, TEXAS LUIS DANIEL SEPULVEDA, APPELLANT VS. CARLOS MEDRANO, APPELLEE

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1 CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS, TEXAS LUIS DANIEL SEPULVEDA, APPELLANT VS. CARLOS MEDRANO, APPELLEE ON APPEAL FROM THE JUDGMENT OF THE 14 TH DISTRICT COURT IN CAUSE NO. DC , HON. RICHARD DAVIS, SITTING BY ASSIGNMENT BRIEF OF THE APPELLANT Respectfully submitted, Dan L. Wyde State Bar No Turtle Creek Blvd., Suite 901 Dallas, Texas (FAX) Attorney for Appellant

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3 IDENTITY OF PARTIES AND COUNSEL Contestant and Appellant The Honorable Luis Daniel Sepulveda Justice of the Peace, Dallas County Precinct 5, Place 1 Contestant s Trial and Appellate Counsel Dan L. Wyde WYDE & ASSOCIATES 3131 TURTLE CREEK BOULEVARD, SUITE 901 DALLAS, TX SBOT NO TEL FAX: wydelawfirm@sbcglobal.net Contestant s Trial Counsel Ms. Jessica L. Sepulveda Almasri & Marzwanian Law Group, PLLC 9330 LBJ Freeway, Suite 900 Dallas, TX SBOT Tel Fax: Jessica@theamlawgroup.com CONTESTEE AND APPELLEE MR. CARLOS MEDRANO CONTESTEE S TRIAL AND APPELLATE COUNSEL MR. PAUL RICH LAW OFFICES OF DOMINGO GARCIA 400 S. ZANG BOULEVARD, SUITE 600 DALLAS, TX SBOT NO Brief of the Appellant Page 1

4 TEL FAX: AND MR. RANDALL BUCK WOOD RAY, WOOD & BONILLA 2700 BEE CAVES ROAD AUSTIN, TX SBOT NO TEL FAX: Brief of the Appellant Page 2

5 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... 1 TABLE OF AUTHORITIES... 4 STATEMENT OF THE CASE... 7 STATEMENT WHY ORAL ARGUMENT SHOULD BE GRANTED 10 ISSUES PRESENTED STATEMENT OF FACTS SUMMARY OF THE ARGUMENT SPECIAL STATEMENT TO THE COURT ON MOOTNESS ARGUMENT ON ISSUE NO. ONE ARGUMENTS ON ISSUES TWO--THREE CONCLUSION AND PRAYER FOR RELIEF CERTIFICATE OF SERVICE Brief of the Appellant Page 3

6 TABLE OF AUTHORITIES Cases Atkinson v. Thomas, 407 S.W.2d 234, 246 (Tex. Civ. App. Austin 1966) Brimer v Maxwell, 265 S.W.3d 926, (Tex. App. Dallas 2008) Cherne Industries, Inc. v. Magalolenes, 763 S.W.2d 768, (Tex. 1989) Elizondo v. Gomez, 957 S.W.2d 862, 865 (Tex. App. San Antonio 1997, pet. denied) Garza v. Salinas, 434 S.W.2d 153, (Tex. Civ. App. San Antonio 1968) Green v. Reyes, 836 S.W.2d 203, (Tex. App. Houston [14 th Dist.] 1992) Humphrey v. Camelot Retirement Community, 893 S.W.2d 55, 61 (Tex. App. Corpus Christi 1994, no pet.) Medrano v. Gleisner, 769 S.W.2d 687, 688 (Tex. App.--Corpus Christi 1989) Salazar v. Gonzales, 931 S.W.2d 59, 60 (Tex. App. Corpus Christi, no pet.).. 9 Sheldon Pollack Corp. v. Pioneer Concrete of Texas, 765 S.W.2d 843, 845 (Tex. App. Dallas 1989, writ denied) TEX. ELEC. CODE Thompson v. Willis, 881 S.W.2d 221, 224 (Tex. App. Beaumont 1994) Brief of the Appellant Page 4

7 Statutes (h) Section (b) Section (h), Section (a) Section (b) Section (f) Section of the Election Code Section Section (a) Section (d) Section (e) Section (f) Section (b) Section (c) Section (d) Section (d), TEX. ELEC. CODE TEX. ELEC. CODE (a) TEX. ELEC. CODE (b) TEX. ELEC. CODE (c) TEX. ELEC. CODE (h), Brief of the Appellant Page 5

8 TEX. ELEC. CODE (a) TEX. ELEC. CODE (a), Rules Tex. R. Civ. P. 296 and Brief of the Appellant Page 6

9 STATEMENT OF THE CASE 1. Nature of the Case: This is an appeal of a trial court s Final Judgment in an election contest lawsuit. On March 2, 2010, the Dallas County Democratic Party held its primary election for the office of Justice of the Peace, Precinct 5, Place 1(hereinafter Office ). Although the long-time incumbent, Appellant herein, won the in-person votes 2,614 to 2,407 (52% to 48%), he lost the mail in votes, 245 to 606 (29% to 71%). Hundreds of the mail-in ballot votes were unlawful due to intervening criminal conduct by vote harvesters who illegally collected, altered and mailed in the ballots. 2. Course of Proceedings: The Texas Election Code statutorily precludes an election contestee from having a jury trial. The trial court conducted an eight day bench trial wherein contestant called to testify approximately 7 nonvoter witnesses and 143 voter witnesses testified Additionally, ten bankers boxes of mail-in ballot materials were admitted into evidence along with another 160 trial exhibits. Medrano could only find one witness: his cousin. On July 19, the trial judge issued a final judgment consisting of two conclusory statements, that the declared result of the election is the true outcome of the election and the election for contestee is affirmed. On July , appellant filed Notice of Appeal. Pursuant to TEX. ELEC. CODE , As soon as practicable after an appeal in a contest is perfected, the district judge shall set the deadline for filing the trial court record in the appellate court. Brief of the Appellant Page 7

10 Unfortunately for appellant, the trial court was on vacation out of the state until August 9. On Aug. 2, one-half the cost of the court reporter s record was paid, with arrangement to pay the balance. On Aug. 16, not having received from the trial court any communication or a deadline for filing the trial court record, appellant filed a Motion for District Judge To Set Deadline For Filing Trial Court Record In Expedited Appeal, and a Request For Findings of Fact and Conclusions of Law. On Aug. 24 appellant s counsel located the trial judge, who was sitting by assignment in the Dallas County criminal courts building. The trial judge granted appellant s request for a hearing and all pending motions were scheduled to be heard on Aug. 26. On Aug. 26 the trial judge heard appellant s Application for a Temporary Restraining Order (TRO) requesting the Dallas County Elections Administrator be restrained for two weeks before sending the general election ballot to be printed. The trial court refused to rule on appellant s Application for a TRO. The trial court did order the reporter s record filed 10 days after the final payment for the record was made. Appellant s counsel paid the remaining balance that afternoon, Aug. 26. On Sept. 2, appellant s counsel ed the trial judge to inform him a Mandamus action would be filed in this appellate court on Sept. 3 if no ruling had been rendered on appellant s Application for a TRO. On Sept. 3, the trial judge denied appellant s application for a TRO. On Sept. 3 Appellant filed a Petition for Brief of the Appellant Page 8

11 Injunction [sic] in this appellate court to prevent the Dallas County Elections Administrator from sending the General Election Ballot to the printer on September 10. On Sept. 7 this Court opined it did not have jurisdiction to grant a writ of injunction in an election contest and denied relator s petition for writ of mandamus to enjoin the printing of the general election ballot while this appeal is pending. The purpose of said TRO application and Petition for Writ of Injunction is to prevent any argument of mootness while this appeal is pending. Salazar v. Gonzales, 931 S.W.2d 59, 60 (Tex. App. Corpus Christi, no pet.) and Brimer v Maxwell, 265 S.W.3d 926, (Tex. App. Dallas 2008). On September 13, 2010, Appellant s counsel was informed by employee Lerone Landis of this court that this appeal was not properly calendared as an accelerated appeal. See Website Docket Sheet for: CV EVENT INFORMATION. 11/16/2010 RECORD DUE. Later that same afternoon appellant s counsel was called by the Court Clerk, Ms. Matz, and asked to provide documentary evidence of payment for the reporter s record. Appellant s counsel was more than happy to comply and provided copies of two cancelled checks (front and back) proving the reporter s record had been paid for. On September 16, the reporter s record was filed in the appellate court and on Sept. 18 appellant s counsel was so notified by letter. Brief of the Appellant Page 9

12 STATEMENT WHY ORAL ARGUMENT SHOULD BE GRANTED Texas election law is very convoluted. It encompasses U.S. Constitutional, Texas Constitutional and three volumes of statutory law. The current Texas Election Code was compiled in Since the Texas Supreme Court has no appellate jurisdiction in election contests, the fourteen Courts of Appeals have produced case law consisting of numerous conflicting opinions. What may be the case law in one appellate district may not be the case law in a different appellate district. Also, there are numerous legal burdens and deadlines applicable to litigants; and, therefore it may be helpful to the individual Justices in reconciling various conflicting statutes and case law to be able to ask questions of all counsel. Brief of the Appellant Page 10

13 ISSUES PRESENTED First Issue: Pursuant to TEX. ELEC. CODE (a), whether the trial court failed to subtract the illegal votes either candidate received as statutorily required. Second Issue: If the trial court did not, whether the true winner of the primary election for JP could be determined. Third Issue: If the trial court could not determine the true winner, then whether the trial court violated its statutory mandate for voiding the previously canvassed results and ordering a new election for Dallas County Justice of the Peace, Precinct 5, Place 1, be held. Brief of the Appellant Page 11

14 STATEMENT OF FACTS On March 2, 2010, the 2010 Dallas County Democratic Primary Election was held. One of the races on the ballot was to determine who would be the Democrat Party s nominee for the office of Dallas County Justice of the Peace, Precinct 5, Place 1. The longtime incumbent is the Honorable Luis D. Sepulveda (Sepulveda or Appellant) and the challenger was Carlos Medrano (Medrano or Appellee). Each candidate received the following votes: Early Voting Early Voting Election Total In Person By Mail Day Luis D. Sepulveda Carlos Medrano Clearly the mail-in ballot votes are suspicious as these percentages do not remotely reflect the voting percentages from the early in person or election-day voting percentages. Brief of the Appellant Page 12

15 SUMMARY OF THE ARGUMENT The margin of victory for Appellee in this case was 149 votes. At trial, Appellant Luis Sepulveda, the incumbent Justice of the Peace, Precinct 1, Place 5, presented conclusive evidence that 397 ballots were illegally cast, for reasons such as: the signature on the mail-in ballot application did not match the signature on the common carrier envelope, the ballot failed to reflect the assistance given the voter or the proper required oath and the common carrier envelopes were signed before the envelopes were sealed. All of these defects constituted Election Code violations, and, by the clear and mandatory terms of the Election Code, these ballots could not have been counted. Based on the facts before it, the trial court could not have determined the true outcome of the election and should have voided the election. Brief of the Appellant Page 13

16 SPECIAL STATEMENT TO THE COURT ON MOOTNESS Appellant seeks to have this Court declare the Appellee ineligible to be the Democratic nominee for Justice of the Peace, Precinct 5, Place 1, pursuant to TEX. ELEC. CODE Section (b) states that a candidate in a general election for state and county officers may be declared ineligible before the 30 th day preceding the election. A candidate may be declared ineligible if the facts showing ineligibility are conclusively established by another public record, in this case, the trial record and exhibits. Pursuant to Section (h), if a candidate is declared ineligible after the deadline for omitting an ineligible candidate s name from the ballot, the authority making the declaration shall promptly certify in writing the declaration of ineligibility to the canvassing authority for the election. Section (h) clearly contemplates that candidates may be declared ineligible after the ballots have been submitted to the printer, which in this case occurred on September 10, An election contest is not moot, however, until the 30 th day preceding the general election. Therefore, until October 1, 2010, this Court has the power to reverse the trial court s judgment and declare the election void. It is also the height of unfairness to declare this appeal moot. As shown in the Course of Proceedings of this brief, the trial court did not follow the proper procedures for ensuring this appeal was properly accelerated. This Court miscalendared the due date for the record by not designating this case as an accelerated appeal, even though Appellant s docketing statement and notice of Brief of the Appellant Page 14

17 appeal so indicated. The court reporter delayed in filing the record of the testimony. Far from sleeping on his rights, Appellant has consistently sought to ensure this appeal was accelerated, including filing two petitions for extraordinary relief, one to force the trial court to set deadlines and the other to force the court reporter to file the record. Brief of the Appellant Page 15

18 ARGUMENT ON ISSUE NO. ONE Appellant filed a request for Findings of Fact and Conclusions of Law. This document consisted of thirteen pages and in fact constituted detailed and sufficient findings, which the trial court simply had to adopt. The trial court did not adopt or otherwise rule on the findings. Appellee did not object or file contrary findings. When a party properly requests findings of fact and conclusions of law pursuant to Tex. R. Civ. P. 296 and 297, and a reporter s record is presented to the court for review, harm is presumed and the court of appeals must reverse the judgment unless the record affirmatively shows that no injury resulted from the trial court s failure to comply with Rule 296. Cherne Industries, Inc. v. Magalolenes, 763 S.W.2d 768, (Tex. 1989); Sheldon Pollack Corp. v. Pioneer Concrete of Texas, 765 S.W.2d 843, 845 (Tex. App. Dallas 1989, writ denied). The test of whether harm exists depends upon whether the circumstances of the particular case would require an appellant to guess at the reasons that the trial court ruled against him or whether those reasons are obvious from the reporter s record. Elizondo v. Gomez, 957 S.W.2d 862, 865 (Tex. App. San Antonio 1997, pet. denied); Pollack v. Pioneer, 763 S.W.2d at 845. In factually complicated cases where there are two or more possible grounds for recovery or defense, an undue burden is placed on an appellant, Brief of the Appellant Page 16

19 that is, the appellant is prevented from making a proper presentation of his case to the appellate court. Humphrey v. Camelot Retirement Community, 893 S.W.2d 55, 61 (Tex. App. Corpus Christi 1994, no pet.). The relevant portion of the trial court s judgment provides: The Court having considered the evidence and arguments of counsel finds that the declared result of the election for the Democratic nomination for Precinct 5, Place 1 for Justice of the Peace, Dallas County, Texas, is the true outcome of the election. Contestant will take nothing from the election contest and the declared result of the election for Contestee is affirmed. Essentially, the trial court simply said to Judge Sepulveda, you lose. The court gave no indication for the basis of its ruling, whether the court disbelieved the witnesses testimony, reviewed the documentary evidence, including each application for mail-in ballot and signature on the carrier envelope or relied upon some other basis for its decision. This puts an undue burden on Appellant in presenting his case to this Court, as he must guess at the reason(s) why the trial court ruled in Appellee s favor. The Court could easily have avoided this problem by adopting Appellant s submitted findings of fact and conclusions of law. Because the trial judge did not, harm is present and the case should be reversed on this ground alone. Brief of the Appellant Page 17

20 ARGUMENTS ON ISSUES TWO--THREE If the district judge hearing an election contest can ascertain the true outcome of the election, the court must declare the outcome. TEX. ELEC. CODE (a). However, if the judge cannot ascertain the true outcome of the election, he must declare the election void. TEX. ELEC. CODE (b). See also, Medrano v. Gleisner, 769 S.W.2d 687, 688 (Tex. App.-- Corpus Christi 1989). If a judge cannot ascertain the true outcome of the election, the court has no choice but to declare the election void. Green v. Reyes, 836 S.W.2d 203, (Tex. App. Houston [14 th Dist.] 1992) and Thompson v. Willis, 881 S.W.2d 221, 224 (Tex. App. Beaumont 1994) (emphasis added). In this case, the trial court erred by failing, as he was statutorily required, to subtract the illegally-cast votes that either candidate received. As to mail-in ballots, which provided the margin for victory for Appellee, the manner of casting absentee ballots is mandatory. Garza v. Salinas, 434 S.W.2d 153, (Tex. Civ. App. San Antonio 1968). Pursuant to TEX. ELEC. CODE (h), a mail-in ballot returned in violation of this section may not be counted. This section provides a specific procedure for all mail-in ballots. Under Section of the Election Code, the voter must make an application for an early voting ballot in writing with his or her signature. A person who has not made a proper application is not entitled to receive an early voting Brief of the Appellant Page 18

21 ballot to be voted by mail. Section (f). The requirements for an early voting ballot application are set forth in Section A voter may receive some assistance in preparing a mail-in ballot under TEX. ELEC. CODE (a). But the assistance rendered under this section is limited to that authorized by the Election Code at the polling place. Section (b). The person assisting the voter must sign a written oath prescribed by Section of the Code that is part of the certificate on the official carrier envelope. Section (c). If a voter is assisted in violation of subsections (a) or (b), the voter s ballot may not be counted. Section (d). A person commits a Class A misdemeanor offense if the person knowingly fails to provide the information on the official carrier envelope as required by subsection (e). A marked ballot must be returned to the early voting clerk in the official carrier envelope. Section (a). Each carrier envelope that is delivered by a common or contract carrier must be accompanied by an individual delivery receipt for that particular carrier envelope that indicates the name and residence address of the individual that actually delivered the envelope to the carrier and the date, hour and address at which the carrier envelope was received by the carrier. Section (d). Carrier envelopes may not be collected and stored at another location for delivery to the early voting clerk. Section (e). Most significantly, a person commits a criminal offense, with punishment ranging from a Class B misdemeanor to a state jail felony, if he knowingly Brief of the Appellant Page 19

22 possesses an official ballot or official carrier envelope provided under this code to another. Section (f). Further, TEX. ELEC. CODE (c) provides that after marking a mail-in ballot, the voter must place it in the official ballot envelope and then seal the ballot envelope, place the ballot envelope in the official carrier envelope, and sign the certificate on the carrier envelope. According to the Secretary of State, the voter is required to sign across the flap of the sealed carrier envelope. This is part of what the early voting ballot board reviews before counting the ballot. An example of circumstances in which the Secretary has advised the ballot board to reject ballots was when the voter signed underneath the flap, then the flap was obviously put over and partially obscuring the signature. This violates Section (d), which requires that the envelopes be sealed with the signature across the flap. See Contestant s Exhibit 8, Letter from Ms. McGeehan to Mr. Wyde. The Legislature has made the manner of casting absentee ballots mandatory and if the statutory requirements are not complied with, the votes are void and will not be counted. Atkinson v. Thomas, 407 S.W.2d 234, 246 (Tex. Civ. App. Austin 1966). (emphasis added). Appellant introduced documentary evidence of a total of 397 unlawfullycast ballots. 161 ballots were unlawfully counted because the alleged voter s signature on the application for mail-in ballot did not match the signature on the common carrier envelope, in violation of Section of the Code. See Brief of the Appellant Page 20

23 Appendix, Petition Section 4.7. Fourteen witnesses were called regarding this issue. Moreover, the trial court could have compared signatures and determined that the signatures did not match; expert testimony was not needed. One witness testified that he was not a United States citizen (R.II 250), and thus his vote should not have been counted. Four other voters did not live in the precinct and thus could not vote in the election. (R.VIII 204, ). 171 ballots were unlawfully counted when the application for the mail-in ballot failed to document the assistance rendered or did not contain a proper oath. See Appendix, Petition Section witnesses testified that they received unlawful assistance with their mail-in ballot. 65 ballots were unlawfully counted when the common or contract carrier envelope were signed before the envelope was sealed, in violation of Section See Appendix, Petition Section 4.9. Thus Appellant proved that 397 votes were unlawfully cast. The margin of victory for Appellee was only 149 votes. Of course, it could not be ascertained to which candidate the unlawfully-cast ballots belonged. As noted earlier, where the judge hearing an election contest can ascertain the true outcome of the election, the judge shall declare the outcome. Section (a). No reasonable factfinder could have ascertained the true outcome in this case. The number of ballots that should not have been counted was greater than the margin of victory, but no one can tell for which candidate these ballots were cast. Brief of the Appellant Page 21

24 Because the court could not ascertain the true outcome of the election, it had no choice but to declare the election void under Section (b). The court refused to do so, and therefore the judgment declaring the true outcome of the election must be reversed and a new election ordered. CONCLUSION AND PRAYER FOR RELIEF Appellant Luis Sepulveda prays that this Court should reverse the judgment of the trial court and order that the primary election in which Appellee was the winner be voided and a new election ordered. Brief of the Appellant Page 22

25 Respectfully submitted, Dan L. Wyde State Bar No Turtle Creek, Suite 901 Dallas, Texas (FAX) Attorney for Appellant CERTIFICATE OF SERVICE A true copy of this brief was served upon Mr. Paul Rich, Attorney for Appellee, 400 S. Zang, Suite 600, Dallas, Texas and Mr. Randall B. Wood, 2700 Bee Caves Road, Austin, Texas by fax on this 22 nd day of September, Dan L. Wyde Brief of the Appellant Page 23

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