Guerra v. Pena | Cases | Westlaw

The trial court refused to make this examination and it is our opinion that an abuse of discretion is not shown by this refusal, in that contestants did not make out a prima facie case of illegality as to these voters to justify the trial court's examination of these ballots. Art. 13.30, Election Code, Vernon's Ann.Civ.St.; McIver v. Starkey, Tex.Civ.App., 271 S.W.2d 314, no writ; De La Garza v. Salinas, Tex.Civ.App., 255 S.W.2d 396, no writ; Markowsky v. Newman, Tex.Civ.App., 138 S.W.2d 896, wr. dism. The voting lists show that an absentee vote was cast by a person of a name identical to each of the challenged voters. However, contestants failed to show that these challenged voters secured their ballots by medical certificates furnished by Dr. Solis.

The contestants had the burden of introducing evidence that these voters did not direct the ‘party representative’ to request Dr. Solis to make the examinations. This Court has repeatedly held that in an election contest, the contestant has the heavy burden of overcoming the presumption that the election officials discharged their duty properly in receiving or rejecting a ballot. Guerra v. Ramirez, Tex.Civ.App., 364 S.W.2d 720, wr. dism.; Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272; Solis v. Martinez, Tex.Civ.App., 264 S .W.2d 956, wr. dism.

Contestants urge that contestees could have answered most of the requests by making a reasonable inquiry and therefore the requests should be taken as admitted. Here, however, the trial court excused contestees from replying. This action, even if erroneous, relieved contestees of the necessity of timely responding to these requests. It is further our opinion that the trial court did not abuse its discretion in entering this order. We do not believe that Rule 169, supra, should be used so as to cast upon respondent the burden and expense of proving the movant's lawsuit. Rather, the purpose of this rule is to simplify the trial by eliminating matters that really are not in controversy. Stayton, 20 T.L.R. 19; Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206; Masten v. Masten, Tex.Civ.App., 165 S.W.2d 225, wr. ref.

*775 Reversible error is not shown by contestants' complaint of the action of the court in enjoining issuance of commissions to take written depositions. Although this action was done just prior to the date set for hearing of the contest, the trial court offered to keep the case open until contestants had the opportunity to take the written deposition of any witness they desired. Contestants made no effort to do so, nor have they shown by bill of exceptions the testimony of any of such witnesses. Therefore reversible error is not shown. Guerra v. Ramirez, Tex.Civ.App., 364 S.W.2d 720. Furthermore, we do not believe the trial court abused its discretion in requiring contestants to set these depositions for a specific time and place. Rule 186b, T.R.C.P.

We have not found any provision in the Election Code to prohibit campaigning outside the State or the encouragement of an eligible voter to cast an absentee vote. The absentee voting papers of each voter are in regular form, including a statutory affidavit on the carrier envelope executed by each voter before one of several notaries public in California. There was also testimony identifying each of these voters, together with his signature. The trial court did not err in refusing to reject these ballots because of the political activity of Hinojosa.

Sixteen of these ballots were rejected by the election officials and contestants urge that the trial court erred in reinstating them, in that contestees did not discharge their burden of showing by clear and satisfactory proof that such voters were legally qualified in every respect. See Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272. Specifically, it is asserted that there is no proof that any of said voters ‘marked his ballot before a notary public or other person authorized to administer oaths' as required by law. Election Code, Art. 5.05, subd. 4. The affidavit on the carrier envelope is prima facie evidence that this requirement was met, and in the absence of any evidence to the contrary, the trial court properly counted these ballots.

The law presumes that the rejected ballots were cast by an illegal voter and the burden of proof was upon contestees in the trial court to show by clear and satisfactory proof that each of such voters was a legally qualified voter in every respect. On the other hand, the burden of proof was upon contestants to demonstrate to the trial court by clear and satisfactory proof that the twenty-four ballots cast by the other challenged voters were illegal. *776 Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272.

The voting residence of a person as defined in Art. 5.08 of the Election Code² has recently been considered by the Supreme Court in Mills v. Bartlett, Tex., 377 S.W.2d 636 (1964) and by this Court in Del Rio Ind. School Dist. v. Aldrete, Tex.Civ.App., 398 S.W .2d 597, writ dismissed. In Mills, it was said: ‘The term ‘residence’ is an elastic one and is extremely difficult to define. The meaning that must be given to it depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Volition, intention and action are all elements to be considered in determining where a person resides and such elements are equally pertinent in denoting the permanent residence or domicile.' In Aldrete, we said: ‘Other cases have emphasized the rule that the question of residence for voting purposes is one which must be determined by reference to the actual facts and circumstances; one of which will be the intention.’

In McBride v. Cantu, Tex.Civ.App., 143 S.W.2d 126, no history, this Court adopted the following rule from Reid v. King, Tex.Civ.App ., 227 S.W. 960: ‘A removal to divest one of his right to vote must be accompanied by an intent to make a new domicile and quit the old. Mere removal, coupled with an intent to retain the original domicile and return to it, will not constitute a change.’ See also Jordan v. Overstreet, Tex.Civ.App., 352 S.W.2d 296; Spraggins v. Smith, Tex.Civ.App., 214 S.W.2d 815.

We have examined the record relative to the residence of these 47 voters in the light of these legal principles. Insofar as the 24 ballots counted by the election officials and the trial court are concerned, contestants wholly failed to introduce clear and satisfactory proof that the following migrant workers were not residents of either of these voting precincts: Leonel R. Lozano, Narcisso Salinas, Macario Sandoval, Gilberto G. Sandoval, Aracelia G . Sandoval and Lorenzo Gomez. There was evidence that each maintained a permanent residence in one of these precincts and was gone a part of each year because of his work. Contestants did not meet their burden of proof as to voters Margarito Rosa and wife, Apolonia M. Rosa, or Donato Gonzalez.

In Cavallin v. Ivey, Tex.Civ.App., 359 S.W.2d 910, no history, the Court recognized the problem of determining residence where an American citizen marries a Mexican citizen living in a nearby Mexican city. Under the holding in that case the husband's legal residence in the United States is not affected by the fact that his wife resides outside the United States, where it is shown that the husband physically resides in the United States and only visits his wife periodically. Voters Marshall Littleton, Amando Garcia, and Cresencio Talamante, were shown to be in a similar domestic situation and the court did not err in overruling the challenge as to their ballots.

Contestants showed by clear and satisfactory proof that three of the 24 voters in this category were not legal residents of Precinct 6 or 7. Alma Yolanda Canales is a single girl, twenty-seven years of age, and under the undisputed evidence she has worked over a year at a factory in Houston; Reymundo Feugero is divorced and has worked full time for a radio shop in Evanston, Illinois, for the last one and one-half years. The fact that these two single people return on holidays to visit their parents in Starr County would not qualify them as residents.

The parties stipulated that voter C. J. Duggan lived in Precinct 6 until he moved to Precinct 7 in August 1965, and on election day, instead of voting in Precinct 7, he went back and voted in Prec. 6. This stipulation was sufficient to show that he voted in the wrong precinct. Therefore, his ballot is void. Harrison v. Jay, 271 S.W.2d 388 (Tex. 1954); Boroughs v. Williamson, Tex.Civ.App., 312 S.W.2d 717, writ dism.

More difficult questions are presented as to the 23 voters whose ballots were rejected by the election officials but reinstated by the trial court. Thirteen of these voters were shown to be migrant farm workers with a permanent residence in Precinct 6 or 7. This evidence supports the trial court's finding that they were qualified voters.

Contestants urge that the evidence was not clear and satisfactory that the four Ramos voters (two brothers, Cleofas and Jose, their cousin's husband, Raul Barrera, *778 and his sister, Ofilia B. Ramos) were residents. The burden was upon contestees to show this in the trial court, by clear and satisfactory proof, since the election officials rejected their votes. Only Cleofas testified at the trial. He testified that he and his wife rented a house in Precinct 6, and, although he went to California as a migrant farm worker, his wife and children remained in Roma. He testified his brother Jose and family resided in this house with him. He further testified that Ofilia B. Ramos and Raul Barrera live in Precinct 6 with her two daughters and their husbands, although this address was not identified. He admitted Jose, Ofilia and Raul are married to Mexican Citizens who live in Mier, Mexico. The only address on the poll tax receipts for these three voters is a post office box in Roma, Starr County. A witness called by contestants testified that all had homes in Mier, Mexico. In our opinion the evidence is not clear and satisfactory that Jose, Ofilia or Raul were residents of Precinct 6.

Contestants complain of six ballots favorable to them which were marked ‘challenged’ by the election officials prior to being deposited in the ballot box. Although placed in the ballot box, they were subsequently removed by the officials and rejected. This procedure was highly improper. Marking the voter's ballot so that it could later be identified destroyed the secrecy of the ballot. Art. 8.09, Election Code, provides the proper procedure to be followed by the election officials where a prospective voter is challenged. In our opinion these votes should therefore be presumed legal. In McCrary on Elections, s 279, the applicable rule is set forth: ‘The inspectors of an election having received the vote of a person, and deposited the same in the box, can not afterward enter into any inquiry as to the right of such person to vote.’