ACCEPTED

04-23-00099-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/30/2023 1:51 PM

NO. 04-23-00099-CV
FILED IN
4th COURT OF APPEALS
In the Court of Appeals SAN ANTONIO, TEXAS
03/30/2023 1:51:42 PM
For the Fourth Judicial District MICHAEL A. CRUZ
Clerk

San Antonio, Texas

DAISY CAMPOS RODRIGUEZ,

Appellant
v.
RICARDO “RICHIE” RANGEL, JR.,
Appellee

On Appeal from the 49th Judicial District Court, Webb County,

Cause No. 2022-CVK-001669-D1

APPELLANT’S BRIEF

Doug W. Ray Roberto Balli

RAY & WOOD
State Bar No. 16599200
300 Beardsley Lane, Suite B-100
Austin, Texas 78746
(512) 328-8877 (Telephone)
(512) 328-1156 (Facsimile)
dray@raywoodlaw.com
BALLI & BALLI LAW FIRM, LLP
State Bar No. 00795235
P.O. Box 1058
Laredo, Texas 78042-1058
(956) 712-4999 (Telephone)
(956) 724-5830 (Facsimile)
robertoballi@sbcglobal.net

COUNSEL FOR APPELLANT

DAISY CAMPOS RODRIGUEZ

ORAL ARGUMENT REQUESTED

 IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties, and the names and
addresses of all counsel of record:

Appellant
Daisy Campos Rodriguez

Counsel for Appellant

Doug W. Ray (State Bar No. 16599200)
RAY & WOOD
300 Beardsley Lane, Suite B-100
Austin, Texas 78746
(512) 328-8877 (Telephone)
(512) 328-1156 (Facsimile)
dray@raywoodlaw.com

Roberto Balli (State Bar No. 00795235)

BALLI & BALLI LAW FIRM, LLP
P.O. Box 1058
Laredo, Texas 78042-1058
(956) 712-4999 (Telephone)
(956) 724-5830 (Facsimile)
robertoballi@sbcglobal.net

Trial Counsel for Appellant

Roberto Balli (State Bar No. 00795235)
BALLI & BALLI LAW FIRM, LLP
P.O. Box 1058
Laredo, Texas 78042-1058
(956) 712-4999 (Telephone)
(956) 724-5830 (Facsimile)
robertoballi@sbcglobal.net

i
Appellee
Ricardo “Richie” Rangel, Jr.

Counsel for Appellee

Baldemar Garcia Jr. (State Bar No. 00790740)
PERSON MOHRER MORALES BODDY GARCIA GUTIERREZ (PMBG), PLLC
602 East Calton Road, Suite 202
Laredo, Texas 78041
(956) 727-4411 (Telephone)
(956) 727-7765 (Facsimile)
bgarcia@pmbglaw.com

Martha Cigarroa (StateBar No. 04250800)

WHITWORTH CIGARROA, PLLC
602 East Calton Road, 2nd Floor
Laredo, Texas 78041
(956) 727-4441 (Telephone)
(956) 727-2696 (Facsimile)
mcigarroa@wctexlaw.com

Trial Counsel for Appellee

Baldemar Garcia Jr. (State Bar No. 00790740)
PERSON MOHRER MORALES BODDY GARCIA GUTIERREZ (PMBG), PLLC
602 East Calton Road, Suite 202
Laredo, Texas 78041
(956) 727-4411 (Telephone)
(956) 727-7765 (Facsimile)
bgarcia@pmbglaw.com

Martha Cigarroa (State Bar No. 04250800)

WHITWORTH CIGARROA, PLLC
602 East Calton Road, 2nd Floor
Laredo, Texas 78041
(956) 727-4441 (Telephone)
(956) 727-2696 (Facsimile)
mcigarroa@wctexlaw.com

ii
 TABLE OF CONTENTS

Identity of Parties and Counsel i

Table of Contents iii

Index of Authorities vi

Statement of the Case ix

Issues Presented x

Statement of Facts 1

Summary of the Argument 10

Argument 17

I. Standard of Review 17

II. The Trial Court Abused its Discretion in Admitting

Election Administrator Castillo’s Opinion on the Most
Accurate Vote Count 20

A. Nothing in the Record Qualifies Castillo as an Expert

Under Rule 702 of the Texas Rules of Evidence 20

B. Even if Castillo was an Expert, Speculative Expert

Testimony is Inadmissible 21

C. Because Castillo is a Fact Witness, his Improper

Testimony Should be Excluded under Rule 701
of the Texas Rules of Evidence 23

iii
 1. Castillo’s confusion and lack of personal
knowledge indicated that his opinion was not
based on perception. 23

2. Instead of helping the trier of fact, Castillo’s

testimony obstructed the trial court’s ability to
make an informed decision. 24

III. The Trial Court Abused its Discretion in Adopting the

Election Night Vote Count Over the Official Results 26

A. Because the Original Canvass is Void the Trial Court

Could Not Use it to Determine the Margin of Victory
for this Election Contest 26

B. Even if the Original Canvass Was Not Void, There is

Insufficient Evidence to Show that the Final Canvass
was in Error 28

IV. The Trial Court Abused its Discretion by Attributing Votes

to a Candidate the Voters Did Not Testify They Voted
For 33

V. The Trial Court Abused its Discretion in Finding that

Certain Individuals Had Voted Illegally 39

A. Vicente Rodriguez Jr. 39

B. Juan Villa 42

C. Yaretzy Campos 46

D. Patricia Soto 51

iv
Prayer 55

Appellate Rule 9.4(i)(3) Certificate of Compliance 57

Certificate of Service 58

Appendix 59

v
 INDEX OF AUTHORITIES

Cases

Alvarez v. Espinoza, 844 S.W.2d 238 (Tex. App.—San Antonio 1992,

writ dism’d w.o.j.)....................................................................................... 48, 53

Barrera v. Garcia, No. 04-12-00469-CV, 2012 WL 4096021

(Tex. App.—San Antonio Sept. 19, 2012, no pet.) .........................................45

Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) ....................................................18

Brazzel v. Murray, 481 S.W.2d 801 (Tex. 1972) ...................................................27

Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,

136 S.W.3d 227 (Tex. 2004) ........................................................................ 22, 23

Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797 (Tex. 2006) ....................22

De La Paz v. Gutierrez, No. 13-18-00377-CV, 2018 WL 5289553

(Tex. App.—Corpus Christi–Edinburg Oct. 25, 2018, no pet.) ...................37

Deffebach v. Chapel Hill Indep. Sch. Dist., 650 S.W.2d 510

(Tex. App.—Tyler 1983, no writ) .....................................................................44

Farrell v. Jordan, 338 S.W.2d 269 (Tex. App.—Houston 1960,

writ dism’d) ........................................................................................................34

Galvan v. Vera, No. 04-18-00309-CV, 2018 WL 4096383

(Tex. App.—San Antonio Aug. 29, 2018, no pet.) ............................ 17, 18, 19

Garza v. Trevino, 541 S.W.2d 524 (Tex. App.—San Antonio 1976,

no writ) ................................................................................................................47

Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98 (1952) .................................36

In re Jackson, 14 S.W.3d 843 (Tex. App.—Waco 2000, orig. proceeding) .......41

In re Peacock, 421 S.W.3d 913 (Tex. App.—Tyler 2014, orig. proceeding) .....53

In re Perez, 508 S.W.3d 500 (Tex. App.—El Paso 2016, orig. proceeding) .....40
vi
Kiehne v. Jones, 247 S.W.3d 259 (Tex. App.—El Paso 2007, pet. denied) .......54

Loving v. City of Houston, 282 S.W.3d 555 (Tex. App.—Houston

[14th Dist.] 2009, pet. denied) ..........................................................................36

Matter of Marriage of Williams, 646 S.W.3d 542 (Tex. 2022) ..............................18

McBeth v. Streib, 96 S.W.2d 992 (Tex. App.—San Antonio 1936,

no writ) ................................................................................................................53

McDuffee v. Miller, 327 S.W.3d 808 (Tex. App.—Beaumont 2010,

no pet.) .................................................................................................................19

Medrano v. Gleinser, 769 S.W.2d 687 (Tex. App.—Corpus Christi–

Edinburg 1989, no writ) ....................................................................................38

Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) .....................22

Miller v. Hill, 698 S.W.2d 372 (Tex. App.—Houston [14th Dist.] 1985),
writ dism’d w.o.j., 714 S.W.2d 313 (Tex. 1986) .................................................35

Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150 (Tex. 2012) ..................30

O’Cana v. Salinas, No. 13-18-00563-CV, 2019 WL 1414021 (Tex. App.—

Corpus Christi–Edinburg Mar. 29, 2019, pet. denied) .................................31

Oles v. Curl, 65 S.W.3d 129 (Tex. App.—Amarillo 2001, no pet.) ...................28

Prado v. Johnson, 625 S.W.2d 368 (Tex. App.—San Antonio 1981,

writ dism’d) ........................................................................................................45

Reese v. Duncan, 80 S.W.3d 650 (Tex. App.—Dallas 2002, pet. denied).........45

Reyes v. Zuniga, 794 S.W.2d 842 (Tex. App.—San Antonio 1990,

no writ) ................................................................................................................29

Rife v. Kerr, 513 S.W.3d 601 (Tex. App.—San Antonio 2016,

pet. denied) .........................................................................................................30

Slusher v. Streater, 896 S.W.2d 239 (Tex. App.—Houston [1st Dist.] 1995,
no writ) ......................................................................................................... 51, 53

vii
Tex. Utilities Elec. Co. v. Timmons, 947 S.W.2d 191 (Tex. 1997) ........................46

Tiller v. Martinez, 974 S.W.2d 769 (Tex. App.—San Antonio 1998,

pet. dism’d w.o.j.) ....................................................................................... 28, 55

Transcor Astra Group S.A. v. Petrobras Am. Inc., 650 S.W.3d 462
(Tex. 2022) ...........................................................................................................18

Walker v. Thetford, 418 S.W.2d 276 (Tex. App.—Austin 1967,

writ ref’d n.r.e.) ..................................................................................................45

Willet v. Cole, 249 S.W.3d 585, 591 (Tex. App.—Waco 2008, no pet.) ............39

Statutes

TEX. ELEC. CODE § 1.005 ........................................................................................26

TEX. ELEC. CODE § 1.015.........................................................................................47

TEX. ELEC. CODE § 2.002 ........................................................................................55

TEX. ELEC. CODE § 11.001 ......................................................................................41

TEX. ELEC. CODE § 11.004 ......................................................................................41

TEX. ELEC. CODE § 11.005 ......................................................................................51

TEX. ELEC. CODE § 63.0011 ....................................................................... 42, 43, 44

TEX. ELEC. CODE § 213.033 ............................................................................. 26, 27

TEX. ELEC. CODE § 221.003 ....................................................................... 17, 26, 29

TEX. ELEC. CODE § 221.009 ....................................................................................35

TEX. ELEC. CODE § 221.011 ....................................................................................26

TEX. ELEC. CODE § 221.012 ....................................................................................38

TEX. ELEC. CODE § 232.041.....................................................................................55

viii
Other Authorities

Act of May 12, 1977, 65th Leg., R.S., ch. 209, § 4, 1977 Tex. Gen. Laws
590, 592 ................................................................................................................44

Act of May 12, 1977, 65th Leg., R.S., ch. 247, § 10, 1977 Tex. Gen. Laws
657, 661 ................................................................................................................35

Act of May 13, 1995, 69th Leg., R.S. ch. 211, §§ 1, 9, 1985 Tex. Gen. Laws
802, 1076 ..............................................................................................................35

Rules

TEX. R. EVID. 401 .....................................................................................................22

TEX. R. EVID. 701 ........................................................................................ 23, 24, 25

TEX. R. EVID. 702 .....................................................................................................20

ix
 STATEMENT OF THE CASE

Ricardo “Richie” Rangel, Jr. filed a petition contesting the results of his

Laredo City Council race against Daisy Campos Rodriguez and seeking a

judicial machine recount of the ballots. (CR 1:19-53). The trial court heard

the election contest in a two-day bench trial. The following week the trial

court announced that it was declaring Rangel the winner of the election and

signed the final judgment and findings of fact and conclusions of law on

February 2, 2023. (CR 2:1929-1931, 2:1922-1928). Campos Rodriguez filed her

notice of appeal on February 1, 2023. (CR 2:1882).

x
 ISSUES PRESENTED

ISSUE 1: The trial court abused its discretion in admitting the election
administrator’s opinion on the most accurate vote count.

ISSUE 2: The trial court abused its discretion in adopting the election
night vote count over the official results.

ISSUE 3: The trial court abused its discretion by attributing votes to a

candidate the voters did not testify they voted for.

ISSUE 4: The trial court abused its discretion in finding that certain
individuals had voted illegally.

xi
 STATEMENT OF FACTS

Campos Rodriguez and Rangel were opponents in the November 8,

2022, general election for the office of Laredo City Council, District 2. The

election night results of that race showed that Campos Rodriguez won by

six votes, 1,957 to 1,951. The election night report included 243 under votes

and 4 overvotes, for a total number of 4,155 ballots. (RR 5:56; Contestant’s

Ex. 1, RR 8:51). Rangel requested a manual recount that was supervised by

Roberto Tellez. The result of that recount was that Campos Rodriguez won

by eleven votes, 1,956 to 1,945. This recount report also included 250

undervotes, but did not include in the report how many overvotes there

were. This resulted in 4,151 ballots, not including overvoted ballots. (RR

5:122-124; Contestee’s Ex. 1, RR 14:44). The original vote total and the recount

total both resulted in 4,151 ballots when considering counted votes and

undervotes. There was no evidence introduced that there were any

irregularities in the conduct or procedures of the recount and the Webb

County Elections Administrator, Jose Luis Castillo, who was supplying the

1 When citing to exhibits in the reporter’s record, Appellant will provide the exhibit’s
number along with a cite to the volume and electronic page number of the PDF in the
reporter’s record where the exhibit is located.

1
actual ballots for the recount, testified that the tally of votes occurred as it

should have and that there were poll watchers during the recount that were

able to watch as the ballots were counted. (RR 5:110-111, 129-131).

In his election contest petition Rangel requested the trial court to

conduct its own judicial recount by machine scanning the ballots. (CR 1:22).

The trial court granted this request (CR 1:102-105) and the judicial machine

recount was conducted, but its results were never introduced into evidence.

Castillo testified that the judicial machine recount tallied 252 fewer votes cast

in the race than were in the election night totals. He attributed this difference

possibly to degradation of the ballots that were stored in un-airconditioned

areas that made them difficult for the machines to read them. (RR 5:112-113).

Following the judicial machine recount the trial court ordered the Castillo to

supply the parties with copies of the cast vote records. (CR 1:599). Cast vote

records on the system used by Webb County are created when the scanner

reads a voter’s actual ballot and creates a “digital fingerprint” of the ballot

by pulling the voting data from the ballot when it is scanned and counted.

(RR 5:62-63). Castillo testified that if the scanner misread a ballot that the cast

vote record would not reflect what was on the official ballot. (RR 5:64-65).

He also testified that the only way to ensure that each and every cast vote

2
record reflected the actual ballot would be to compare the two visually, but

he had not done so. (RR 5:99). The cast vote record data that was admitted

as Contestee’s Exhibit 2 was the same data used to create the election night

results that the Election Administrator’s office certified to the City of Laredo.

(RR 5:98).

Over Campos Rodriguez’s objection, the trial court permitted Castillo

to give his opinion on which of the three recounts he believed to be the most

accurate. He stated his belief that the original election night total was the

most accurate. (RR 5:57). However, rather than provide a clear, well-

founded rationale for why the election night count was the most accurate

tally, Mr. Castillo stated only that the cast vote record confirmed how each

ballot was counted without providing any evidence or methodology to

support this assertion. (RR 5:99). In fact, Mr. Castillo admitted that he had

not visually inspected the cast vote record and did not compare it to the

ballots cast on election night. (Id.). When asked why he thought the manual

recount was different from the election night totals, he testified that “the

complete number of ballots were handed over to the talliers” and “I guess,

they got tired -- their eyes or they counted wrong . . . and I would just

imagine that it was just human error, they were tired, and they marked it

3
wrong for that count.” (RR 5:111). The trial court relied on the Election

Administrator’s stated belief and testimony as to the most accurate vote in

finding that election night vote, not the manual recount, was the accurate

vote count. (CR 2:1923).

During the remainder of the trial the court heard evidence from sixteen

voters and required all but one of them to disclose how they voted. (CR

2:1923-1927). These fifteen voters all testified that they voted for Campos

Rodriguez except Jaqueline Estevis, who testified that she voted for Rangel

(RR 5:230), and four voters who testified that they could not remember how

they voted in the District 2 race—Maria De Los Angeles Martinez (RR 5:157),

Karla Pereyra (RR: 6:156), Staci Navarro (RR 6:163-164), and Jose A.

Carrizales (RR 6:174-175). The trial court found that each of these voters cast

their ballot for Campos Rodriguez. (CR 2:1926-1927).

When Vicente Rodriguez Jr. went to vote he was registered at 3124

Potomac Loop, which is in District 2. (RR 5:161, 171-172). As he had moved

from that address some six years before to a new address in the City of

Laredo, the election official requested him to sign a statement of residence

for his new address. (RR 5:169-171). Rodriguez executed the statement of

residence and then the election official provided Rodriguez with a ballot for

4
his registered address on Potomac Loop, which included the race for District

2. (RR 5:171-172; Contestant’s Ex. 5HH, RR 9:56). Rodriguez testified that he

voted for Campos Rodriguez (RR 5:175-176). The trial court found that

Rodriguez had resided in District 2 at 3124 Potomac Loop and had his voter

registration at that address, but that he had abandoned that residence six

years ago and at the time of the election was residing outside District 2. The

trial court found that he had voted illegally for Campos Rodriguez (CR

2:1924).

Juan Villa testified that at the time that he went to vote he was living

in Laredo outside of District 2, but he was still registered to vote at his

previous residence, 3001 Pecos Plaza, which is in District 2. (RR 5:179, 181,

359, 364). When he went to vote Villa presented the election official with a

driver’s license that had a different address than where he was registered,

but the election official did not ask him if he had moved or request that he

fill out a statement of residence. (RR 5:183-184). The election official gave

Villa a ballot for his registered address on Pecos Plaza, which ballot included

the District 2 race and he voted for Campos Rodriguez. (RR 5:186-187). The

trial court found that Juan Villa had resided at Pecos Plaza until September

5
2021 and that was where he was registered to vote. The trial court found that

Juan Villa voted illegally for Campos Rodriguez. (CR 2:1924).

Yaretzy Campos testified that her permanent place of residence was at

3001 Pecos Plaza, where she and her daughter had lived with her uncle’s

family since at least 2016. (RR 5:312-313, 321, 325, 329, 349, 358). Campos

testified that because she didn’t pay rent or bills for Pecos Plaza that she

executed a host family form designating the Pecos Plaza home as her and

her daughter’s residence so that her daughter could attend the local school.

(RR 5:312-313). Campos testified that she used her father’s address at 3106

Bismark to receive mail from her bank, employer and other entities, because

she preferred not to have her family living at Pecos Plaza know about things

she was receiving in the mail, particularly things related to financial issues

such as loan requests, and that she felt her father’s address was more secure

for receiving mail. (RR 5:331, 336, 338, 360, 364).

Campos testified that she and her daughter shared a bedroom with

another family member at Pecos Plaza and that her father’s house had

several empty bedrooms, but she did not and would not live there, because

she did not get along with her father’s wife. (RR 5:347-348, 349). She testified

that she had not lived at the Bismark address since shortly after she

6
graduated high school in 2010 and that she did not even visit with her father

in his home due to not getting along with his wife. (RR 5:348, 364). Campos

testified that she had also rented an apartment at 2601 Lomas del Sur for

someone else. (RR 5:326, 327, 328). But Campos testified that she would stay

there occasionally, but that was not where she had her permanent residence.

(RR 5:326-327, 328, 329, 332, 333, 361). The Lomas del Sur address was also

in District 2. (RR 5:363). Campos voted for Campos Rodriguez. (RR 5:361).

The trial court’s findings list three different addresses for Campos, but

doesn’t make a specific finding as to which address the trial court found was

her residence under the Election Code. The findings state that she was

registered at her claimed permanent address, which is her uncle’s home at

3001 Pecos Plaza. The findings also state that her father’s home at 3601

Bismark is listed on her bank account and pay stubs and that she has rented

an apartment at 2601 Lomas del Sur. The findings indicate that only the

Bismark address is outside of District 2 and that Campos illegally voted for

Campos Rodriguez. (CR 2:1925).

Patricia Soto testified that she lives both at 204 Middleston Drive and

304 S. Bartlett. The evidence was that the Bartlett address is in District 2 and

the Middleston address is not. Her husband and minor children live at

7
Middleston and there is a homestead designation on that home, although

Soto testified that she did not do the paperwork for that designation. (RR

5:238-39). The evidence showed that Soto’s husband signed the homestead

designation. (Contestant’s Ex. 12G, RR 10:333). Soto testified that she spends

summers and weekends at Bartlett and that she spends more time there than

at Middleston. (RR 5:244-245, 253-254). She kept clothing, toiletries and

similar personal items at the Bartlett home. (RR 5:249-250). Soto testified that

Bartlett was the home she intended to return to and that “it’s my home. I

have no intention of leaving.” (RR 5:251-252). She testified that she was sure

that she voted for Campos Rodriguez. (RR 5:256). The trial court found that

Patricia Soto had illegally registered to vote at her parent’s home at 3304 S.

Bartlett in District 2, when her residence is 204 Middleston Drive, which is

located outside of District 2, and that she voted illegally for Campos

Rodriguez. (CR 2:1924).

After hearing all the evidence the trial court determined that fifteen of

the sixteen voters had illegally voted for Campos Rodriguez. (CR 2:1924-

1927). Using the original canvass instead of the final canvass, the trial court

found that the “illegal votes cast for Daisy Campos Ramirez must be

deducted from her election night count and . . . thus finding that Ricardo

8
‘Richie’ Rangel won the general election for Laredo City Council District II.”

(CR 2:1927). The trial court granted a final judgment in favor of Rangel

declaring him the winner of the District 2 election. (CR 2:1930). Campos

Rodriguez timely appealed the trial court’s final judgment. (CR 2:1882).

9
 SUMMARY OF THE ARGUMENT

The final canvass of this contested election, following a recount

requested by Rangel, showed that Campos Rodriguez won the election by

eleven votes. The trial court also ordered a judicial recount. The trial court

used the original canvass from the election night count to determine the

margin of victory in this election contest, even though the original canvass

had been voided and replaced by the final canvass from the recount. The

trial court based this decision on the opinion of Jose Luis Castillo, the Webb

County Elections Administrator, that the election night count was the most

accurate. The trial court abused its discretion in allowing Castillo to give an

opinion regarding the most accurate count of the three vote counts.

Castillo’s opinion was speculative, highly subjective, as well as irrelevant

and constituted improper opinion evidence under Texas Rules of Evidence

701 and 702.

Castillo’s testimony showed that he did not possess the knowledge,

skill, experience, training, and/or education to be properly qualified as an

expert under Texas Rule of Evidence 702. Moreover, even experts are not

allowed to give opinions that are speculative and subjective. As such, Mr.

10
Castillo’s opinion regarding the most-accurate vote count was inadmissible

and should not have been considered by the trial court.

As a lay witness Castillo’s testimony was subject to Texas Rule of

Evidence 701, which states that fact witnesses may only testify to facts within

their personal knowledge, and that the testimony be helpful either to an

understanding of the witness’s testimony or the determination of a fact in

issue and are generally not allowed to provide an opinions. Castillo’s

testimony failed these requirements in all respects. Consequently, the court’s

reliance on this improper opinion evidence constituted an abuse of

discretion.

Even if Castillo’s opinion had been admissible, the trial court still

would have abused its discretion in adopting the original canvass from the

election night totals as the starting point for determining Campos

Rodriguez’s margin of victory. The Election Code specifically provides that

when there is a new final canvass following a recount, that the original

canvass is void. Being a nullity, the original canvass could not be validated

by the trial court and used as the official results for this contested election.

But even if the original canvass had not been void, there was no competent

evidence that there had been a mistake in conducting or reporting the official

11
recount. Finding at least a mistake in the officially reported results is a

prerequisite for the trial court to order a judicial recount or otherwise

disregard the official results of an election. Here, there was only speculation

by Castillo that the recount was wrong, which is not competent evidence

upon which to disregard the final canvass.

The trial court heard evidence from sixteen voters and determined that

fifteen of them had voted illegally. One of these voters testified they had

voted for Rangel, while four others testified that they couldn’t remember

who they had voted for. The trial court, however, found that all fifteen had

voted for Campos Rodriguez. Applying the incorrect six vote difference

from the voided original canvass, the trial court found that Rangel had won

the election. But the trial court abused its discretion in finding that these five

voters had cast their ballots for Campos Rodriguez, because there was

insufficient evidence to support these findings. Prior case law had

determined that the only competent evidence of how a voter had cast their

ballot was the voter’s testimony. The Legislature had passed a statute in 1977

overruling that caselaw by specifically allowing the tribunal in an election

contest to determine how voters had cast their ballots based upon all

available evidence. The Legislature amended the statute to remove that

12
language in 1985 and therefore the only competent evidence upon which to

base a finding of how a witness voted is their testimony. Without that

testimony in this case, there is insufficient evidence to support the trial

court’s finding that these five individuals voted for Campos Rodriguez and

thus the trial court abused its discretion in so finding. This would require

only deducting ten votes from Campos Rodriguez’s vote total.

Using the required final canvass of an eleven vote difference, this

would mean that Campos Rodriguez would have a one vote margin over

Rangel. But with five illegal votes in the election not attributed to either

candidate, this would leave the outcome of the election uncertain and thus

require voiding this election and ordering a new one.

Additionally, out of the fifteen voters that the trial court found to be

illegal, there was insufficient evidence to support that finding for four of

them and thus the trial court abused its discretion in finding those four

individuals to have cast illegal votes. Vicente Rodriguez Jr. had previously

resided and registered in District 2 some six years before this election. Under

the Election Code an individual who has moved to a new election precinct

with the same county is entitled to vote a ballot for their previous registered

address if they are still a resident of the same political jurisdiction ordering

13
the election and submit a statement of residence as requested by an election

official. Rodriguez had not updated his voter registration and still lived in

the City of Laredo, so he was permitted to vote in the District 2 election. He

executed the provided statement of residence and was properly given a

ballot that included the District 2 race. As such, his vote should be found to

be legal. Juan Villa had also moved out of District 2 and was likewise

entitled to vote at his previous address as he had not updated his voter

registration, but still lived in the City of Laredo. However, the election

official failed to properly accept Villa for voting and did not provide him

with the statement of residence for him to fill out. Because this requirement

is a directory provision that is the responsibility of the election officials, the

lack of the statement of residence does not render Villa’s vote in the District

2 race illegal. Accordingly, his vote should be held to be legal.

Yaretzy Campos testified that she had lived at an address on Pecos

Plaza since 2016 and that she had also rented an apartment for someone else

on Lomas del Sur that she stayed at occasionally. Both of these addresses

were in District 2. Her father and his wife lived at an address on Bismark

that was outside of District 2. Campos had this address on her bank account

and with her employer, but testified that she used the address only to receive

14
mail and didn’t spend any time there, because she doesn’t get along with her

step-mother. Though readily controvertible, no witnesses were called to

testify that Campos actually lived or spent any time at the Bismark address.

Because she had no physical presence at the Bismark address, it could not be

her residence under the Election Code. Because both the other address at

which she spent time were in District 2, the trial court had insufficient

evidence to find that Campos voted illegally in his election and therefore her

vote should be held legal.

Patricia Soto spent time at both the home she owned and shared with

her husband the home owned by her parents. Her parents home is in District

2. She testified that she spent more time at her parents’ home, and no one

was called to controvert this testimony, and that was the address at which

she intended to always return to. Because she had a physical presence and

the intent to make her parents’ home her permanent address, there was

insufficient evidence to find that she voted illegally and therefore her vote

should be legal.

Subtracting these four voters from the fifteen voters found illegal by

the trial court would leave eleven illegal voters. Even if all eleven had voted

15
for Campos Rodriguez (which Campos Rodriguez disputes), that would

leave the contested election tied, which would also require a new election.

16
 ARGUMENT

I. STANDARD OF REVIEW

The trial court hearing an election contest must “attempt to ascertain

whether the outcome of the contested election, as shown by the final

canvass, is not the true outcome.” TEX. ELEC. CODE § 221.003(a).

“’An election contestant’s burden is a heavy one, and the declared results

will be upheld in all cases except when there

is clear and convincing evidence of an erroneous result.’”Galvan v. Vera, No.

04-18-00309-CV, 2018 WL 4096383, at *2 (Tex. App.—San Antonio Aug. 29,

2018, no pet.) (mem. op.). “’To overturn an election, the contestant must

prove by clear and convincing evidence that voting irregularities materially

affected the election results.’” Id. “A contestant can establish the outcome

was materially affected by showing: (1) illegal votes were counted or an

election official failed to count legal votes or engaged in other fraud, illegal

conduct, or mistake; and (2) a different result would have been

reached.” Id.; accord TEX. ELEC. CODE § 221.003(a)(1)-(2).

In reviewing a judgment in an election contest, the appellate court

must determine if the trial court abused its discretion. Id. “It is an abuse of

discretion for a trial court to rule arbitrarily, unreasonably, or without regard

17
to guiding legal principles . . . or to rule without supporting evidence.”

Transcor Astra Group S.A. v. Petrobras Am. Inc., 650 S.W.3d 462, 482 (Tex. 2022)

(quoting Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). Legal and factual

sufficiency “are relevant factors in determining whether the trial court

abused its discretion.” Matter of Marriage of Williams, 646 S.W.3d 542, 545

(Tex. 2022).

“In reviewing the legal sufficiency of the evidence under

a clear and convincing standard, [the Court will] 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. [The Court will] presume that the trier of fact resolved disputed facts

in favor of its findings if a reasonable trier of fact could do so. [The Court

will] disregard any contrary evidence if a reasonable trier of fact could do

so, but [will] not disregard undisputed facts.” Galvan, 2018 WL 4096383, at

*2 (citations omitted).

“In conducting a factual sufficiency review under a clear and

convincing standard, [the Court] ‘must give due consideration to evidence

that the factfinder could reasonably have found to be clear and

convincing.’” The evidence is only factually insufficient if ‘the disputed

18
evidence that a reasonable factfinder could not have credited in favor of the

finding is so significant that a factfinder could not reasonably have formed

a firm belief or conviction.’” Id.

“In resolving factual disputes, the trial court may believe one witness

and disbelieve others, and it may resolve any inconsistencies in a witness’s

testimony. In making credibility determinations, the trier-of-fact ‘cannot

ignore undisputed testimony that is clear, positive, direct, otherwise

credible, free from contradictions and inconsistencies, and could have been

readily controverted.’” McDuffee v. Miller, 327 S.W.3d 808, 815 (Tex. App.—

Beaumont 2010, no pet.) (citations omitted). Accordingly, “the trier-of-fact is

not ‘free to believe testimony that is conclusively negated by undisputed

facts.’ However, if the trier-of-fact could reasonably believe the testimony of

one witness or disbelieve the testimony of another witness, the appellate

court ‘cannot impose [its] own opinions to the contrary.’” Id. (citations

omitted).

19
II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING ELECTION
ADMINISTRATOR CASTILLO’S OPINION ON THE MOST ACCURATE VOTE
COUNT

The trial court erred in admitting Election Administrator Castillo’s

opinion on the most accurate vote count. Castillo was not an expert

permitted to provide such an opinion and neither was his opinion

admissible as a lay witness.

A. Nothing in the Record Qualifies Castillo as an Expert Under

Rule 702 of the Texas Rules of Evidence.

Rule 702 of the Texas Rules of Evidence outlines the criteria for

admitting expert testimony, stating that a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify if: (a) the

expert’s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue; (b) the

testimony is based on sufficient facts or data; (c) the testimony is the product

of reliable principles and methods; and (d) the expert has reliably applied

the principles and methods to the facts of the case. TEX. R. EVID. 702.

Castillo testified that he had been the Webb County Elections

Administrator for only a year-and-a-half and had received two trainings

during that time; however, there was no testimony or evidence presented as

20
to the nature of his trainings. (RR 5:54). Furthermore, Castillo’s testimony

demonstrated a lack of understanding of the technical aspects of the voting

system and the cast vote records. For example, Castillo had no personal

knowledge of the security protocols and potential vulnerabilities of the

voting system employed on election night nor any specifics regarding how

the cast vote record data was stored, transmitted, and/or validated

throughout the voting process. (RR 5:94). Rather, Castillo testified that the

technical aspects of the voting process were handled by the Webb County

I.T. department and the electronic voting system vendor. (RR 5:94).

Castillo’s testimony indicates that he, at a minimum, lacked the

specialized knowledge to give an expert opinion on the accuracy of the cast

vote record. Additionally, they highlight Castillo’s limited experience and

training on electronic voting systems, and his lack of knowledge as to

technical aspects that underlie the creation of the cast vote records.

Accordingly, Castillo’s testimony was speculative and highly subjective, as

it was not based on facts within his personal knowledge, nor any

recognizable principles and methods related to electronic voting systems.

B. Even if Castillo was an Expert, Speculative Expert Testimony

is Inadmissible.

21
 Assuming arguendo that the trial court could have properly qualified

Castillo as an expert, his testimony would still be inadmissible as it is

speculative in nature. Expert testimony that is conclusory or speculative is

not relevant evidence, as it does not tend to make the existence of a material

fact “more probable or less probable” and is considered incompetent

evidence that cannot support a judgment. Coastal Transp. Co. v. Crown Cent.

Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (quoting TEX. R. EVID. 401).

Additionally, when an expert merely offers personal credentials and

subjective opinions, the resulting testimony is essentially uncorroborated

evidence that does not assist the trier of fact. Cooper Tire & Rubber Co. v.

Mendez, 204 S.W.3d 797, 801 (Tex. 2006); Coastal Transp. Co., 136 S.W.3d at

232; Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997).

In the present case, Castillo’s opinion that the election night vote count

was the most accurate is highly subjective and speculative. As previously

discussed, his testimony lacked a sufficient basis, relied on conclusory

statements, and failed to provide the necessary clarity or evidence to support

his assertions. Consequently, even if the trial court had accepted Castillo as

an expert, his speculative testimony should not have been considered in

22
determining the accuracy of the election night vote count. Coastal Transp. Co.,

136 S.W.3d at 232.

C. Because Castillo is a Fact Witness, his Improper Testimony

Should be Excluded under Rule 701 of the Texas Rules of
Evidence.

Castillo was a fact witness. Therefore, his testimony would still be

inadmissible under Texas Rule of Evidence 701, which states that a non-

expert witness—i.e., a fact witness—can only testify as to facts within his

personal knowledge, and that the witness’s opinion or inference must be

helpful either to an understanding of the witness's testimony or the

determination of a fact in issue. TEX. R. EVID. 701.

1. Castillo's confusion and lack of personal knowledge

indicated that his opinion was not based on perception.

Rule 701(a) of the Texas Rules of Evidence requires lay witness

testimony to be rationally based on the witness’s perception. TEX. R. EVID.

701(a). Castillo’s inconsistent testimony about the relationship between the

cast vote record data and the election night tally, as well as his suggestion to

visually inspect the ballots for verification, showed that his opinions were

not based on his personal knowledge or direct perception. When asked

whether the cast vote record and the election night count came from the

23
same data, Castillo testified that he was “not sure” and had “assum[ed]” that

they were independent, although he admitted that he had never asked the

software vendor that question. (RR 5:95). Later though, Castillo agreed with

the statement that the “exact-same stored data that you used to create the

Election Night report and give to the City of Laredo as the official result, that

is the same data that you used to create the CVR” and that the cast vote

record data was the same data used to create the election night totals. (RR

5:98-99). Ultimately, Castillo’s opinion regarding the accuracy of the election

night count was shown to be purely speculative, as he had not conducted a

visual inspection of the cast vote record against the actual ballots to confirm

its accuracy. (RR 5:99). As such, Castillo’s testimony clearly failed to meet

the requirements of Rule 701(a) for lay witness testimony.

2. Instead of helping the trier of fact, Castillo’s testimony

obstructed the trial court’s ability to make an informed
decision.

Rule 701(b) requires that lay witness testimony be helpful to the trier

of fact. In this case, Castillo’s inability to provide clear, reliable information

about the accuracy of the election night count or its relation to the cast vote

record only served to complicate the matter (RR 5:63, 5:98-99). Instead of

24
assisting the trier of fact in understanding the issue at hand, Castillo’s

testimony obstructed the court's ability to make an informed decision.

As Castillo’s testimony fails to meet the requirements of both Rule

701(a) and Rule 701(b), the trial court should have excluded his testimony in

accordance with the Texas Rules of Evidence. Given the requirements of the

Texas Election Code and the confusion in Castillo’s testimony, the trial

court’s reliance on Castillo’s testimony constituted a clear abuse of

discretion. The trial court’s error in admitting Castillo’s testimony had a

significant impact on the outcome of the case, as the court relied on his

opinion in determining that the election night count was the correct count

for purposes of the election contest (RR 5:111-112) (CR: 1922-1928).

Accordingly, the trial court erred in admitting and relying on Castillo’s

opinion that the election night recount was the “most accurate” count.

Instead, the court should have focused on the manual recount results, as

required by the Texas Election Code, and excluded Mr. Castillo’s speculative

and unhelpful testimony.

25
III. THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING THE ELECTION
NIGHT VOTE COUNT OVER THE OFFICIAL RESULTS

Even if the trial court could have admitted Castillo’s opinion on the

most accurate vote count, the evidence he supplied will not support using

the election night totals adopted by the trial court. Because the Election Code

deemed the original canvass void, the trial court did not have the authority

to simply adopt it has the vote count for this election.

A. Because the Original Canvass is Void the Trial Court Could

Not Use it to Determine the Margin of Victory for this Election
Contest.

The starting point for any election contest is the final canvass. See, e.g.,

TEX. ELEC. CODE § 221.003(a) (“The tribunal hearing an election contest shall

attempt to ascertain whether the outcome of the contested election, as shown

by the final canvass, is not the true outcome.”); Id. § 221.011(a) (“[T]he

tribunal hearing an election contest . . . shall subtract [an illegal] vote from

the official total for the candidate.”). “’Final canvass’ means the canvass from

which the official result of an election is determined.” Id. § 1.005(5). In this

case, the final canvass is the recount which determined that Campos

Rodriguez won by eleven votes. Id. § 213.033(a) (“[A]fter completion of a

recount that changes the number of votes received for a particular candidate

26
. . . the canvassing authority shall conduct a canvass for the office . . . using

the recount committee’s report . . . instead of the original precinct election

returns[, and the] original canvass for the office . . . is void, and the new

canvass is the official canvass for the election on that office.”).

Had there been no recount, then the original canvass showing that

Campos Rodriguez won by six votes would have been the final canvass and

the official results for determining the margin of victory in this election

contest. However, the Election Code explicitly provides that the “original

canvass . . . is void.” Id. The trial court found that the election night count,

meaning the original canvass, was the most accurate count and adopted it as

the vote in determining this election contest. (CR 2:1923, 2:1927).2 This

finding is directly contrary to the Legislature’s declaration that when a

recount occurs that changes the vote totals, then the original canvass is void.

“’A void act is one entirely null within itself . . . and which is not susceptible

of ratification or confirmation. Its nullity cannot be waived.’” Brazzel v.

Murray, 481 S.W.2d 801, 803 (Tex. 1972) (citation omitted). For a trial court

2The trial court also made reference to the cast vote record (CVR) count in conjunction
with the election night results. However, the cast vote record data submitted to the trial
court was the same data used to create the election night results that the Election
Administrator’s office certified to the City of Laredo and upon which the original canvass
was based. RR 5:98

27
to adopt an original canvass as the official count violates the Legislature’s

specific direction that the original canvass is a nullity. “Simply put, if a

supposedly void act can be validated then the act cannot actually be void.

This is so because a void act is a nullity.” Oles v. Curl, 65 S.W.3d 129, 132

(Tex. App.—Amarillo 2001, no pet.). Because the Election Code makes the

original canvass void, the trial court abused its discretion by attempting to

validate it and make it the basis for determining the true margin of victory

in this proceeding. The final canvass must be used to determine the margin

of victory in this election contest.

B. Even if the Original Canvass Was Not Void, There is

Insufficient Evidence to Show that the Final Canvass was in
Error.

Even if the original canvass was not void, the trial court would have

abused its discretion in substituting it for the final canvass based upon the

evidence before it. The Election Code does provide tribunals with the

authority to conduct their own recount of ballots if needed to ascertain the

true outcome of the election. However, the authority provided is for the

tribunal to determine “whether the ends of justice require the reopening of

ballot boxes and recounting the vote.” Tiller v. Martinez, 974 S.W.2d 769, 773

(Tex. App.—San Antonio 1998, pet. dism’d w.o.j.). This Court has held that

28
the discretion to conduct a judicial recount in lieu of the official result is not

unbounded, but rather must be exercised within the scope of the tribunal’s

inquiry as set out in the Election Code.

In Reyes v. Zuniga, 794 S.W.2d 842, 844 (Tex. App.—San Antonio 1990,

no writ) the contestant claimed that the trial court abused its discretion by

refusing to review and count certain ballots that had adhesive stickers placed

over them in a manner that an election official had testified was inconsistent

with the Election Code. The contestee argued that in order to justify opening

the ballot boxes and performing a judicial recount the contestant had to

make a showing of fraud. This Court disagreed, holding that a judicial

recount is within the trial court’s discretion when there has been a showing

of fraud or mistake in the official ballot count. Id. at 845. The opinion looked

to the scope of the inquiry to determine when a recount of the ballots is

appropriate and held that a recount is appropriate to determine if “’the final

canvass, is not the true outcome because . . . an election officer or other

person officially involved in the administration of the election . . . . . engaged

in other fraud or illegal conduct or made a mistake.’” Id. (quoting TEX. ELEC.

CODE § 221.003(a)(2)(C)) (emphasis in original).

29
 In this case, there was no competent evidence that any election official

made a mistake during the manual recount. While there was a difference

between the election night results and the manual recount, Castillo, who was

not in charge of the manual recount, testified only that “the complete

number of ballots were handed over to the talliers” and “I guess, they got

tired -- their eyes or they counted wrong . . . and I would just imagine that it

was just human error, they were tired, and they marked it wrong for that

count.” (RR 5:111). This is not evidence, but rank speculation.

“Conclusory or speculative opinion testimony is not relevant,

competent evidence because such conclusory testimony cannot support a

judgment.” Rife v. Kerr, 513 S.W.3d 601, 615 (Tex. App.—San Antonio 2016,

pet. denied). “’[T]estimony is speculative if it is based on guesswork or

conjecture.’” Id. (quoting Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d

150, 156 (Tex. 2012)). Castillo explicitly testified that it was his “guess” that

the recount committee members counted ballots wrong and that he

“imagine[d]” that they miscounted ballots. This evidence is purely

speculative and not competent to support a judgment either that there was

any mistake in the manual recount or that Castillo’s opinion that the election

night results were more accurate. The trial court could not ignore the official

30
results of the election based upon an individual’s guesswork or imagination.

Cf. O’Cana v. Salinas, No. 13-18-00563-CV, 2019 WL 1414021, at *11 (Tex.

App.—Corpus Christi–Edinburg Mar. 29, 2019, pet. denied) (mem. op.)

(holding that even though contestant had proven that at least 18 mail ballots

had been illegally harvested by contestee’s campaign workers, witness’s

testimony that he saw contestee’s campaign worker with a big bag of ballots

that he guessed contained over two hundred ballots was legally insufficient

to support trial court’s finding that more than 18 mail ballots had been

illegally harvested).

Accordingly, there was no evidence upon which to order a recount nor

was there any evidence upon which the trial court could simply substitute

the void election night results for the official results from the manual

recount. The trial court ordered the Elections Administrator to supply the

cast vote records (“CVR”) to the parties. Cast vote records on the system

used by Webb County are created when the scanner reads a voter’s actual

ballot and creates a “digital fingerprint” of the ballot by pulling the voting

data from the ballot when it is scanned and counted. (RR 5:62-63). The cast

vote record data that was admitted was the same data used to create the

election night results that the Election Administrator’s office certified to the

31
City of Laredo. (RR 5:98). The Elections Administrator testified that if the

scanner misread a ballot then the cast vote record would not reflect what

was on the official ballot. (RR 5:64-65). While he testified that there was no

indication of such a mismatch, he also testified that the only way to ensure

that each and every cast vote record reflected the actual ballot would be to

compare the two, but that he had not done so. (RR 5:99).

Even if the trial court had the authority to conduct a recount, the trial

court did not base its vote count on the recount of ballots that it ordered.

Rather, it simply substituted the election night results for the official final

canvass. This was an abuse of discretion, as there was no evidence sufficient

to justify ignoring the official results. Had the trial court used its own court-

ordered recount of the actual ballots as the vote totals, then there would have

been some evidence to support that the manual recount was incorrect. But

there is no evidence that the manual recount, rather than the election night

recount, is incorrect. While the summary of the cast vote records admitted

into evidence equaled the original canvass, without comparing those cast

vote records to the actual ballots that were counted in the manual recount

there is simply no evidence that there was a mistake in the recount. The

evidence in the record does not provide clear and convincing evidence such

32
that the trial court trier of fact could have reasonably have formed a firm

belief or conviction that there was a mistake in the recount, thus justifying

replacing it with the original canvass. Accordingly, the final canvass must

be used to determine the starting margin of victory in this election contest.

IV. THE TRIAL COURT ABUSED ITS DISCRETION BY ATTRIBUTING VOTES TO

A CANDIDATE THE VOTERS DID NOT TESTIFY THEY VOTED FOR

The trial court required all but one of the voter witnesses to disclose

how they voted in the District 2 council race. All of these voters testified that

they voted for Campos Rodriguez other than Jaqueline Estevis, who testified

that she voted for Rangel (RR 5:230), and Maria De Los Angeles Martinez

(RR 5:157), Karla Pereyra (RR: 6:156), Staci Navarro (RR 6:163-164), and Jose

A. Carrizales (RR 6:174-175), who testified that they could not remember

how they voted in the District 2 race. In every instance, regardless of how

the voter testified, the trial court found that they voted for Campos

Rodriguez. (CR 2:1926-1927). This was an abuse of discretion, because the

only competent evidence for how an individual voted is their own

testimony. While a trial court may choose to disbelieve the voter’s testimony

that they voted for a particular candidate, it has no discretion to assign a vote

to an illegal voter that is not supported by the voter’s testimony, because

33
absent the voter’s testimony there is insufficient competent evidence to

support the trial court’s finding.

In Farrell v. Jordan, 338 S.W.2d 269, 272 (Tex. App.—Houston 1960, writ

dism’d), the contestant elicited the testimony of a husband and wife who

had illegally voted because they were not residents of the territory covered

by the contested election. The wife was an employee of the contestee and

they had both told other people that they were voting for or had voted for

the contestee. On the stand, however, they both testified that they had voted

for the contestant. Id. In opposition to their testimony, the trial court

deducted their votes from the contestee. The court of appeals held that this

was impermissible, because there “was no competent evidence to establish

that the [couple] voted for [the contestee]. The fact that [the wife] worked as

a maid for [the contestee] is not sufficient to lead to that conclusion. The only

competent evidence is the testimony of the witnesses that they voted for [the

contestant].” Id. at 273. The appellate court similarly held that the hearsay

evidence of how the couple had voted was not competent to support the trial

court’s holding that they had voted for the contestee. Id.

In 1977 the Legislature statutorily overruled Farrell and added a new

section to the Election Code that gave tribunals in election contests the power

34
exercised by the trial court in this case—to consider evidence other than the

voter’s testimony and find that an individual voted for a candidate other

than that revealed by their testimony. The law provided that in an election

contest an illegal voter:

may be required and compelled . . . to disclose . . . the name of

any candidate for whom he voted and [the] voter’s testimony
may be impeached by the testimony of other witnesses in regard
to statements by the voter, either before or after the election, or
by other competent evidence; and the issue of how the voter
voted shall be decided on the basis of all the evidence before the
tribunal.

Miller v. Hill, 698 S.W.2d 372, 374 (Tex. App.—Houston [14th Dist.] 1985),

writ dism’d w.o.j., 714 S.W.2d 313 (Tex. 1986) (quoting Act of May 12, 1977,

65th Leg., R.S., ch. 247, § 10, 1977 Tex. Gen. Laws 657, 661 (codified at

V.A.T.S. Election Code. art. 9.38b)).

However, the old Election Code, including this provision, was

repealed by the Legislature in 1985 and replaced with an amended Election

Code. See Act of May 13, 1995, 69th Leg., R.S. ch. 211, §§ 1, 9, 1985 Tex. Gen.

Laws 802, 1076. The new Election Code amended this provision to state only

that a “voter who cast an illegal vote may be compelled . . . to disclose the

name of the candidate for whom the voter voted . . . if the issue is relevant

to the election contest.” TEX. ELEC. CODE § 221.009(a). The Legislature

35
omitted all of the language providing the tribunal with the authority to rely

on impeachment or other evidence to determine who an illegal voter had

cast their ballot for. “‘Ordinarily, the mere fact that significant words are

omitted from the re-enactment or amendment of a statute imports a

conclusive presumption that the Legislature intended to exclude the object

theretofore accomplished by the abandoned words.’” Gateley v. Humphrey,

151 Tex. 588, 592, 254 S.W.2d 98, 101 (1952) (citation omitted); accord Loving

v. City of Houston, 282 S.W.3d 555, 560 (Tex. App.—Houston [14th Dist.]

2009, pet. denied) (“When the legislature amends a statute and excludes

certain language of the former statute in its new version, we are to presume

the language was excluded for a reason and the excluded language is no

longer the law.”). Because the Legislature has expressly removed the power

for tribunals to rely on extrinsic evidence in election contests to determine

that illegal voters cast their ballots in some way other than revealed by their

testimony, the trial court abused its discretion in doing just that in this case.

As the only competent evidence of how a person voted is their own

testimony, a trial court abuses its discretion when it attributes illegal voters’

ballot to someone other than who they testified they voted for. In this case,

there was no competent evidence in the record for the trial court to find that

36
Jaqueline Estevis, Karla Pereyra, Maria De Los Angeles Martinez, Staci

Navarro or Jose A. Carrizales voted for Campos Rodriguez. Accordingly,

because there was insufficient evidence to support the trial court’s findings

that these individuals voted for Campos Rodriguez, these votes should not

be deducted from Campos Rodriguez’s vote totals. 3

3 Even if circumstantial evidence was sufficient to determine how an individual voted in

an election, there was insufficient circumstantial evidence to show by clear and
convincing evidence that Maria De Los Angeles Martinez, Karla Pereyra, or Jose A.
Carrizales voted for Campos Rodriguez. While each testified that they could not
remember how they voted, in a general election with numerous candidates on the ballot
this is not unusual. See De La Paz v. Gutierrez, No. 13-18-00377-CV, 2018 WL 5289553, at
*6 (Tex. App.—Corpus Christi–Edinburg Oct. 25, 2018, no pet.) (mem. op.) (upholding
trial court’s authority to declare an election void without determining how individuals
voted when the number of illegal votes exceeds the margin of victory and noting that
even if illegal voters are put on the stand and compelled to testify “’what assurance do
we have that they would remember for whom they voted’”). In this case, there was no
evidence introduced that Martinez knew Campos Rodriguez or her family and she
testified that no one had told her to vote for Campos Rodriguez (RR 5:157-158). The trial
court made no finding of any connection between Martinez and Campos Rodriguez. (CR
2:1924). Pereyra testified that she did not know Campos Rodriguez or her family (RR
6:156) and the trial court made no finding of any connection between Pereyra and
Campos Rodriguez. (CR 2:1926). Carrizales testified that his wife was a former
schoolmate and supporter of Campos Rodriguez, but other than testifying that he might
have accompanied his wife to some Campos Rodriguez campaign events, although he
wasn’t sure, there was no evidence of any connection Carrizales had to Campos
Rodriguez. (RR: 6:173-174). The fact that someone’s spouse supports a particular
candidate is no evidence, let alone clear and convincing evidence, that the individual
supports the same candidate. Accordingly, even if evidence other than the voter’s
testimony could be used to support a finding of how the person voted, as to Martinez,
Pereyra and Carrizales there is insufficient clear and convincing evidence to form a firm
conviction that any of these individuals voted for Campos Rodriguez.

37
 However, this does not mean that the trial court is required to believe

an illegal voter voted for a particular candidate or that it may not consider

such illegal votes in making its judgment. For example, in Medrano v.

Gleinser, 769 S.W.2d 687, 689 (Tex. App.—Corpus Christi–Edinburg 1989, no

writ) the contestant elicited testimony from an individual who had voted

despite having a felony conviction. The voter’s testimony indicated that he

was biased against the contestant for notifying the press that the voter had a

felony conviction, but also that he claimed to have voted for the contestant.

Id. Citing to Farrell, the court of appeals held that “the trial court reasonably

could have refused to believe [the voter’s] testimony that he voted for [the

contestant], and thus found that it could not ascertain the true outcome of

the election” and was correct in ordering a new election Id. at 690. Had the

trial court impermissibly switched the voter’s ballot from the contestant to

the contestee, it would have resulted in a judgment awarding the election to

the contestant. However, the trial court took the proper course and

determined that since it could not ascertain how this individual voted, it

could not “ascertain the true outcome of the election” and therefore was

required to “declare the election void.” TEX. ELEC. CODE § 221.012(b) (“The

38
tribunal shall declare the election void if it cannot ascertain the true outcome

of the election.”).

V. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT CERTAIN

INDIVIDUALS HAD VOTED ILLEGALLY

The trial court found that certain individuals were ineligible to vote in

the District 2 race for failing to meet the Election Code’s residency

requirements. Rangel “had the burden to prove by clear and convincing

evidence that [these individuals] did not reside [in District 2 and were]

ineligible to vote in the [that] election.” Willet v. Cole, 249 S.W.3d 585, 591

(Tex. App.—Waco 2008, no pet.). There were several individuals for whom

the evidence was insufficient to show by clear and convincing evidence that

they had voted illegally. These votes were valid and should be counted in

this election.

A. Vicente Rodriguez Jr.

The trial court found that Vicente Rodriguez Jr. had resided in District

2 at 3124 Potomac Loop and had his voter registration at that address, but

that he had abandoned that residence six years ago and at the time of the

election was residing outside District 2. The trial court found that he had

voted illegally for Campos Rodriguez (CR 2:1924). Despite Rodriguez’s

39
change in residence to an address outside of District 2, he voted legally in

the District 2 election.

Campos Rodriguez does not challenge the trial court’s findings that

Rodriguez had previously resided at and been registered to vote at 3124

Potomac Loop which is located in District 2. The undisputed evidence

supports this finding. (RR 5:161, 171-172). At the time Rodriguez went to

vote, on October 24, 2022, he was registered to vote at the Potomac Loop

address although he had moved from there. Accordingly, the election official

requested him to sign a statement of residence for his new address. (RR

5:169-171). Rodriguez executed the statement of residence and then in

compliance with the Election Code the election official provided Rodriguez

with a ballot for his registered address on Potomac Loop, which included

the race for District 2. (RR 5:171-172; Contestant’s Ex. 5HH, RR 9:56).

“With one exception, . . . voters who reside outside of [the] Precinct

[boundaries for the office at issue] may not vote in [that] race.” In re Perez,

508 S.W.3d 500, 506 (Tex. App.—El Paso 2016, orig. proceeding). That

exception provides that a “registered voter who changes residence to

another election precinct in the same county, if otherwise eligible, may vote

a full ballot in the election precinct of former residence until the voter’s

40
registration becomes effective in the new precinct if the voter satisfies the

residence requirements prescribed by Section 63.0011 and submits a

statement of residence in accordance with that section.” TEX. ELEC. CODE §

11.004.4 Section 11.004 “does not place a specific restriction on the length of

time in which a voter who has moved to another election precinct in the same

county may cast a ballot in his former precinct.” In re Jackson, 14 S.W.3d 843,

847 (Tex. App.—Waco 2000, orig. proceeding).

In this case, the trial court found that Rodriguez had moved from one

voting precinct to another in the same county. This entitled Rodriguez to

vote in the precinct of his former residence so long has he met the residence

requirements prescribed by section 63.0011 of the Election Code and

submitted the statement of residence as requested by the election official.

Section 63.0011 provides that if “the voter has changed residence within the

county, the voter may vote, if otherwise eligible, in the election precinct in

which the voter is registered if the voter . . . resides in the political

4 The Election Code provides that “[e]xcept as otherwise provided by law, to be eligible
to vote in an election in this state, a person must . . . be a resident of the territory covered
by the election for the office . . . on which the person desires to vote.” TEX. ELEC. CODE §
11.001(a)(2). In this case, section 11.004 is one of the exceptions to this residency
requirement that is provided by law.

41
subdivision served by the authority ordering the election if the political

subdivision is other than the county.” TEX. ELEC. CODE § 63.0011(b)(1). There

is no evidence that Rodriguez’s new residence was outside of the City of

Laredo, the authority that ordered the District 2 election, or that Rodriguez

was otherwise ineligible to vote in the election. Additionally, Rodriguez

submitted the statement of residence as requested by the election official as

set out in § 63.0011(c). (Contestant’s Ex. 5HH, RR 9:56). As such, Rodriguez

was eligible to vote in the election at his prior residence of registration, 3124

Potomac Loop, which the trial court found is located in District 2.

Accordingly, there is insufficient evidence to support the trial court’s finding

that Rodriguez voted illegally and it abused its discretion in so finding. This

Court should overturn that finding and determine that his vote was legal.

B. Juan Villa

The trial court found that Juan Villa had resided at Pecos Plaza until

September 2021 and that was where he was registered to vote. The trial court

found that Juan Villa voted illegally for Campos Rodriguez. (CR 2:1924). The

undisputed evidence is that Villa’s prior address was 3001 Pecos Plaza,

which is in District 2. (RR 5:181, 359, 364). The undisputed evidence was that

he moved to a new address that was also in the City of Laredo. (RR 5:179).

42
Despite Villa’s change in residence to an address outside of District 2, he

voted legally in the District 2 election.

Based upon the same Election Code provisions and legal analysis cited

previously to validate the vote of Rodriguez, Villa was legally entitled to

vote in the District 2 race. He was registered at an address in that district

prior to his move, he met the residency requirements set out in section

63.0011(b)(1), and there was no evidence that he was not otherwise eligible

to vote in the election. See supra pp. 40-42.

However, there was a paperwork issue with respect to Villa in that the

election official did not request him to sign a statement of residence prior to

accepting him for voting. The Election Code provides that when a person

has moved to a different residence in the same county and is still registered

at their former address “[b]efore being accepted for voting [at their prior

residence], the voter must execute and submit to an election officer a

statement including” certain required information. TEX. ELEC. CODE §

63.0011(c).

When he went to vote Villa presented the election official with a

driver’s license that had a different address than where he was registered,

but the election official did not ask him if he had moved or request that he

43
fill out a statement of residence. (RR 5:183-184). The Election Code states

that “[b]efore a voter may be accepted for voting, an election officer shall ask

the voter if the voter’s residence address on the precinct list of registered

voters is current and whether the voter has changed residence within the

county.” Id. § 63.0011(a). That did not occur in this instance and there was

no request for a statement of residence and Villa did not submit one.

However, the lack of a statement of residence does not make Villa’s

vote invalid. Prior to the adoption of the current Election Code, the prior

Code stated that “[n]o citizen shall be permitted to vote . . . unless he first

presents to the judge of election his registration certificate unless the same

has been lost or mislaid, or left at home, in which event he shall make an

affidavit of that fact.” Act of May 12, 1977, 65th Leg., R.S., ch. 209, § 4, 1977

Tex. Gen. Laws 590, 592 (codified at V.A.T.S. Election Code. art. 8.07).

Despite its seemingly mandatory nature, relying on well-established

precedent the court in Deffebach v. Chapel Hill Indep. Sch. Dist., 650 S.W.2d 510

(Tex. App.—Tyler 1983, no writ) held that “compliance with the provisions

of . . . article [8.07] have also been held to be directory and not mandatory.” Id.

at 513 (emphasis in original).

44
 Deffebach cited to Walker v. Thetford, 418 S.W.2d 276 (Tex. App.—Austin

1967, writ ref’d n.r.e.), which held with respect to article 8.07 that “[w]here

the article itself contains no provision that ballots cast without compliance

with the statute shall not be counted, the article is directory and not

mandatory.” Id. at 292. It is still the “’general rule of interpretation . . . that

the election laws are to be construed as directory in the absence of fraud or

a mandatory provision which requires the voiding of a ballot for failure to

comply with its provisions.’” See Barrera v. Garcia, No. 04-12-00469-CV, 2012

WL 4096021, at *2 (Tex. App.—San Antonio Sept. 19, 2012, no pet.) (mem.

op.) (quoting Reese v. Duncan, 80 S.W.3d 650, 658 (Tex. App.—Dallas 2002,

pet. denied)). In this case the requirement that a voter submit a statement

prior to being accepted for voting by an election official is a duty that is

actually placed upon the election official to ensure that the statement is

received before permitting the voter to cast their ballot. “’The general rule is

that the performance of duties placed upon the election officials are

directory, unless made mandatory by statute, while those placed upon the

voters are mandatory.’” Barrera, 2012 WL 4096021, at *2 (quoting Prado v.

Johnson, 625 S.W.2d 368, 369 (Tex. App.—San Antonio 1981, writ dism’d)).

This rule reflects the Texas Supreme Court’s admonition that “the failure of

45
[election] officials to perform their duties should not be permitted to

disfranchise a legal voter.” Ramsay v. Wilhelm, 52 S.W.2d 757, 760 (Tex.

App.—Austin 1932, writ ref’d). 5

The statement of residence provision in section 63.0011(c) is a directory

provision and the election official’s failure to follow it may not

disenfranchise Villa, who was legally eligible and entitled to vote at his

registered address in District 2. As such there is insufficient evidence to

support the trial court’s finding that Villa voted illegally and it abused its

discretion in so finding. This Court should overturn that finding and

determine that his vote was legal.

C. Yaretzy Campos

The trial court’s findings list three different addresses for Yaretzy

Campos, but doesn’t make a specific finding as to which address the trial

court found was her residence under the Election Code. The findings state

that she was registered at her claimed permanent address, which is her

5 See Tex. Utilities Elec. Co. v. Timmons, 947 S.W.2d 191, 199 (Tex. 1997) (“This Court, by
assigning Johns a “writ refused” notation, adopted the court of civil appeals’ opinion and
judgment as its own.”).

46
uncle’s home at 3001 Pecos Plaza. The findings also state that her father’s

home at 3601 Bismark is listed on her bank account and pay stubs and that

she has rented an apartment at 2601 Lomas del Sur. The findings indicate

that only the Bismark address is outside of District 2 and that Campos

illegally voted for Campos Rodriguez. (CR 2:1925). There is insufficient

evidence to support a finding that Campos resided outside of District 2 and

voted illegally and therefore her vote should be held legal.

Under the Election Code, “’residence’ means domicile, that is, one’s

home and fixed place of habitation to which one intends to return after any

temporary absence.” TEX. ELEC. CODE § 1.015(a). This has been the statutory

definition of residence in Texas election law since 1967. See Garza v. Trevino,

541 S.W.2d 524, 525 (Tex. App.—San Antonio 1976, no writ). “[U]nder the

statute the election officials are to focus on the voter’s ‘home and fixed place

of habitation.’ Intention and presence are important evidentiary factors, and

a temporary move from one place to another will neither create a new

residence nor lose an old one. In assessing presence, the cases have

considered such conduct as where the voter sleeps and keeps clothes and

furniture, and the length of time spent in the alleged residence.” Alvarez v.

Espinoza, 844 S.W.2d 238, 247 (Tex. App.—San Antonio 1992, writ dism’d

47
w.o.j.). However, neither intention nor presence predominate over the other.

Rather, “‘volition, intention and action’ are ‘equally pertinent’ elements to

consider” in determining a voter’s residency.” Id. (citation omitted).

Campos testified consistently and without contradiction that her

permanent place of residence was at Pecos Plaza, that she and her daughter

lived there with her uncle’s family and she had been there since at least 2016.

(RR 5:312-313, 321, 325, 329, 349, 358). Another witness, Celina Ramirez, also

testified that Campos lived at the Pecos Plaza residence. (RR 6:131-132, 133).

Campos testified that because she didn’t pay rent or bills for Pecos Plaza that

she executed a host family form designating the Pecos Plaza home as her

and her daughter’s residence so that her daughter could attend the local

school. (RR 5:312-313). When asked why she had provided her father’s

Bismark address to her bank and her employer, Campos consistently and

without contradiction testified that she used her father’s address to receive

mail from her bank and employer. (RR 5:331, 336, 338, 360, 364). When asked

why she did not want to receive mail at the Pecos Plaza address, Campos

testified that she preferred not to have her family living at Pecos Plaza know

about things she was receiving in the mail, particularly things related to

48
financial issues such as loan requests, and that she felt her father’s address

was more secure for receiving mail. (RR 5: 331, 336).

Campos testified that she and her daughter shared a bedroom with

another family member at Pecos Plaza and that her father’s house had

several empty bedrooms, but she did not and would not live there, because

she did not get along with her father’s wife. (RR 5:347-348, 349). She testified

that she had not lived at the Bismark address since shortly after she

graduated high school in 2010 and that she did not even visit with her father

in his home due to not getting along with his wife. (RR 5:348, 364). Campos

was very consistent, clear and direct in her testimony that she lived at the

Pecos Plaza address and did not spend any time at the Bismark address and

only used it to receive mail. This testimony could have been easily

controverted by her father or step-mother, but they were not called to testify

at trial. There is no evidence in the record, let alone clear and convincing

evidence, to support that Campos had any physical presence at the Bismark

address such that it could have been her residence. There was no evidence

that she ever spent any time there or that anything belonging to her, other

than her mail, was at that address. Accordingly, the trial court abused its

49
discretion in finding that the Bismark address could have been Campos’s

residence.

The evidence showed that Campos had rented an apartment at 2601

Lomas del Sur for someone else. (RR 5:326, 327, 328). Campos consistently

testified that she would stay there occasionally, but that was not where she

had her permanent residence. (RR 5:326-327, 328, 329, 332, 333, 361).

Accordingly, there is no clear and convincing evidence that the Lomas del

Sur apartment was Campos’s domicile and thus her residence for voting

purposes. However, even if it were, her vote in the District 2 election would

still be valid, because the Lomas del Sur apartment is in District 2.

It is undisputed that the Lomas del Sur address is in District 2. (RR

5:363). If Lomas del Sur was Campos’s real residence and she was

erroneously registered at the Pecos Plaza address, then under section 11.005

of the Election Code her vote would be legal. This provision states that “[i]f

a voter who is erroneously registered in an election precinct in which the

voter does not reside is permitted to vote by an election officer who does not

know of the erroneous registration, the votes for the offices and measures on

which the voter would have been eligible to vote in the voter’s precinct of

residence are valid unless the voter intentionally gave false information to

50
procure the erroneous registration.” TEX. ELEC. CODE § 11.005. Because there

is no evidence in the record that Campos intentionally gave false information

to procure her registration at 3001 Pecos Plaza, her vote in the District 2 race

would be legal even if she was erroneously registered at that address instead

of Lomas del Sur. See Slusher v. Streater, 896 S.W.2d 239, 245 (Tex. App.—

Houston [1st Dist.] 1995, no writ) (holding that voter who was registered at

an address different than the one where he resided was eligible under

section 11.005 to vote in city council race where his actual residence was

inside city limits and there was no evidence that he had intentionally

provided false information to procure his registration at the other address).

Because there is no clear and convincing evidence sufficient to form a

firm conviction that Campos resided outside of District 2 when she voted,

the trial court abused its discretion in finding that she had illegally voted for

Campos Rodriguez. This Court should overturn that finding and determine

that her vote was legal.

D. Patricia Soto

The trial court found that Patricia Soto had illegally registered to vote

at her parent’s home at 3304 S. Bartlett in District 2, when her residence is

204 Middleston Drive, which is located outside of District 2, and that she

51
voted illegally for Campos Rodriguez. (CR 2:1924). There is insufficient

evidence to support finding that Soto voted illegally because her residence

is outside of District 2 and her vote should be held legal.

The evidence showed that she lives both at the Middleston and the

Bartlett homes. Her husband and minor children live at Middleston and

there is a homestead designation on that home, although Soto testified that

she did not do the paperwork for that designation. (RR 5:238-39). Rather, it

was Soto’s husband that filed the homestead designation. (Contestant’s Ex.

12G, RR 10:333). Soto also testified that she spends summers and weekends

at Bartlett and that she spends more time there than at Middleston. (RR

5:244-245, 253-254). She kept clothing, toiletries and similar personal items

at the Bartlett home. (RR 5:249-250). Soto testified that Bartlett was the home

she intended to return to and that “it’s my home. I have no intention of

leaving.” (RR 5:251-52).

Based upon the general rules for determining a voter’s residence under

section 1.015 of the Election Code, see supra pp. 47-48, an individual’s

residence may not be proven by simply resorting to evidence showing where

the individual owns property, even when such property has been designated

as a homestead. “A homestead designation may be relevant to resolution of

52
a dispute concerning the person’s residence for purposes of the election

code. However, no one factor is dispositive on the question of one’s intended

residence.” In re Peacock, 421 S.W.3d 913, 918 (Tex. App.—Tyler 2014, orig.

proceeding).

“The presumption, of course, obtains here, as generally in this state,

that every man has the right and privilege of fixing his residence according

to his own desires.” McBeth v. Streib, 96 S.W.2d 992, 995 (Tex. App.—San

Antonio 1936, no writ). When a person has a physical presence at two

locations, she can intend that one be her permanent residence address, thus

making that location her residence through the confluence of her physical

presence and intent. See, e.g., Slusher, 896 S.W.2d at 245 (holding that man’s

residence was his mother’s house in Kemah where he stayed with her, had

his driver’s license and considered it his residence, even though he also

owned a home in another town at which he worked and had a room where

he stayed part of the time); Alvarez, 844 S.W.2d at 245 (holding that where

married couple spent some time outside of county and some time within

county at the wife’s mother’s home and considered that dwelling their

residence, they were residents of the county for voting purposes). Moreover,

the fact that Soto’s husband filed a homestead designation on the

53
Middleston house provides no probative value regarding Soto’s intention to

make that address her domicile. Indeed, persons can have a property

designated as a homestead and still have their domicile for voting persons

at a different address. See Kiehne v. Jones, 247 S.W.3d 259, 265-67 (Tex. App.—

El Paso 2007, pet. denied) (holding that couple who owned a house in

Hockley County for which they claimed a homestead exemption were

residents of Loving County for voting purposes when 1) they also owned a

home in Loving County, 2) spent time at both houses, 3) had belongings at

both houses, and 4) intended for the Loving County home to their

permanent residence).

The undisputed evidence regarding Soto was that she spent more time

at the Bartlett home than at Middleston and that she kept belongings at both

homes. This evidence was readily controvertible by either Soto’s husband

or her parents, but none of these individuals were called to testify at trial.

Combined with Soto’s unequivocal intent to return to the Bartlett home and

make that address her permanent residence, there was simply insufficient

clear and convincing evidence for the trial court to form a firm conviction

that among the two homes she spent time at, that Soto did not make the

Bartlett home her domicile. Accordingly, the trial court abused its discretion

54
in finding that she was domiciled at the Middleston address and that her

vote was illegal. This Court should overturn that finding and determine that

her vote was legal.

PRAYER

The final canvass for this election showed that Campos Rodriguez won

the Laredo City Council District 2 race by eleven votes. The trial court found

that fifteen individuals had voted illegally and had all voted for Campos

Rodriguez. She has shown that four of these individuals were legal voters,

which, by itself, would make this election a tie, thus necessitating a new

election. See TEX. ELEC. CODE § 2.002(a) (“[I]f two or more candidates for the

same office tie for the number of votes required to be elected, a second

election to fill the office shall be held.”). But even if there had been fifteen

illegal voters, there is sufficient evidence to find only that ten of them voted

for Campos Rodriguez. This would mean that the number of illegal votes

exceeded the margin of victory and it would not be possible to determine

the true outcome of the election. This would also necessitate a new election.

See Tiller, 974 S.W.2d at 772 (holding that if the “court cannot ascertain the

true outcome of the election, it must declare the election void” (citing TEX.

ELEC. CODE § 221.012)); TEX. ELEC. CODE § 232.041 (providing that if “the

55
contested election is declared void, the court shall [direct] the appropriate

authority to order a new election”). Based upon the foregoing, Campos

Rodriguez respectfully requests this Court to reverse the trial court’s

judgment, render judgment that the November 8, 2022 election for Laredo

City Council, District 2, is void and remand to the trial court with

instructions to order the City of Laredo to order a new election in

conformance with the applicable provisions of the Election Code.

Respectfully submitted,

By: /s/ Doug W. Ray

Doug W. Ray
State Bar No. 16599200

RAY & WOOD

300 Beardsley Lane, Suite B-100
Austin, Texas 78746
(512) 328-8877 (Telephone)
(512) 328-1156 (Facsimile)
dray@raywoodlaw.com

56
 By: /s/ Roberto Balli
Roberto Balli
State Bar No. 00795235

BALLI & BALLI LAW FIRM, LLP

P.O. Box 1058
Laredo, Texas 78042-1058
(956) 712-4999 (Telephone)
(956) 724-5830 (Facsimile)
robertoballi@sbcglobal.net

COUNSEL FOR APPELLANT

APPELLATE RULE 9.4(I)(3) CERTIFICATE OF COMPLIANCE

Counsel hereby certifies that this brief was computer generated using
14-point Book Antiqua typeface and that this brief, excluding those portions
enumerated in Appellate Rule 9.4(i)(1), contains 12,132 words, based upon
the word count of the computer program used to generate the brief.

/s/ Doug W. Ray

Doug W. Ray

57
 CERTIFICATE OF SERVICE

I hereby certify that on March 30, 2023 a true and correct copy of the
above and foregoing was delivered through the electronic filing manager to
the following:

Baldemar Garcia Jr.

Person Mohrer Morales Boddy Garcia Gutierrez, PLLC
602 East Calton Road, Suite 202
Laredo, Texas 78041
bgarcia@pmbglaw.com

Martha Cigarroa
Whitworth Cigarroa, PLLC
602 East Calton Road, 2nd Floor
Laredo, Texas 78041
mcigarroa@wctexlaw.com

COUNSEL FOR APPELLEE

/s/ Doug W. Ray

Doug W. Ray

58
 NO. 04-23-00099-CV

In the Court of Appeals

For the Fourth Judicial District
San Antonio, Texas

DAISY CAMPOS RODRIGUEZ,

Appellant
v.
RICARDO "RICHIE" RANGEL, JR.,
Appellee

On Appeal from the 49th Judicial District Court, Webb County,

Cause No. 2022-CVK-001669-D1

APPENDIX TO APPELLANT’S BRIEF

APPENDIX TABLE OF CONTENTS

Tab DOCUMENT
1 Trial Court’s Final Judgment
2 Trial Court’s Findings of Fact and Conclusions of Law

59
TAB 1
 Cause No. 2022CVKOO l669Dl
~
Ricardo "Richie" Rangel Jr., § In the " 'ct Cour(~
'-"
Contestant, § ..."
",
§ CD
c- "TI
v s. § 49'" J ~istric'<.!,
- "TI
§ :< 0 :Do
:3:
Daisy Campos Rodriguez, §
Contestee. § Webb ~/--"J)

Final Judgmen t

On January 26 and 27, 2023, the Court conducted a bench trial in this Cause. The parties

appeared in person and by their respective counsel of record. The Court, afte r weighing the

evidence, pleadings, authorities, and arguments of counsel, grants judgmen t in favor of

contestant Ricardo "Ritchie" and against contestee Daisy Campos Rodriguez as follows.

It is Ordered, Adjudged, and Decreed that contestant has proven that the election night

results of the November 8, 2022 general electio n for Laredo City Council District 2 were as

follows:

Ricardo " Ritchie" Rangel Jr. 1,951

Daisy Campos Rodriguez 1,957

Overvotes 4

U ndervotes

Total

1929
It is further Ordered, Adjudged, and Decreed that contestant has proven that at least seven

illegal votes were cast for contestee and therefore should be subtracted from her vote totals,

reducing her vote totals to 1,950 or less.

It is therefore Ordered, Adjudged, and Decreed that contestant Ricardo "Ritchie" Rangel]r.

is hereby declared the winner of the November 8, 2022 election for Laredo City Council

District 2 and immediately entitled to take office and receive all benefits and emoluments of

office.

It is lastly Ordered, Adjudged, and Decreed that all costs are taxes against contestee Daisy

Campos Rodriguez, for which let execution issue.

This final judgment disposes of alI claims and parties and is final and appealable.

Signed on this the _2nd_ day of February, 2023.

Judge Susan D. Reed, sitting by assignment

406'" District Court
Webb County, Texas

Page 2 of3

1930
Respectfully submitted,

By: (s/Baldemar Garcia Jr.

Baldemar Garcia Jr.
Texas Bar No. 00790740
bgarcia@pmbglmv.com
Person Mohrer Morales Boddy Garcia Gutierrez (pMBG), PLLC
602 East Calton Road, Suite 202
Laredo, Texas 78041
voice 956.727.4411
facsimile 956.727.7765

Martha Cigarroa
mcigarroa@Wctexlaw:com
Texas Bar No. 04250800
Whitworth Cigarroa, PLLC
602 East Calton Road, 2'" Floor
Laredo, Texas 78041
voice 956.727.4441
facsimile 956.727.2696

attorneys for Mr. Rangel

Certificate of service

Contestant's proposed final judgment has been served on all counsel of record by email or
email notification by the electronic service provider on January 27,2023. Tex. R. Civ. P. 21,
21a.

Roberto Balli
Balli & Balli Law Firm, LLP
P. O. Box 1058
Laredo, Teas 78042-1058
robertoballi@sbcglobal.net

( s (Baldemar Garcia Jr.

Baldemar Garcia Jr.

Page 3 of3

1931
TAB 2
 Cause No. 2022-CVK-OOI669-Dl

Ricardo "Richie" Rangel Jr., §

Contestant, §
§
vs. §
§
Daisy Campos Rodriguez, §
Conte stee. § Webb County, Texas

Findings of Fact and Conclusions of Law

On J anuary 26 and 27, 2023, came o n to be heard the above entitled and nwnbered cause.

The parties appea red in person and by their res peetive counsel of reeo rd . The Court, having

considered the eviden ee, authorities, and argument of counsel, makes the fo llowing findings o f fact

and conclusions o f law.

1. The e1eetion at issue was the general e1eetion eonducted on Nove mber 8, 2022, for Distriet

IT of the City of Laredo City Couneil. T h e e1eetio n night vote was as follows :

Rieardo " Riehie" Rangel Jr. 1,951

Daisy Campos Rodriquez 1,957
Overvotes 4
Undervotes 243

Total Ballots Counted 4, 155

2. Ricardo "Richie" Rangel Jr., hereafter referred to as "RR," requested a manual recount. Same

was eo nducted with the vote result as follows:

Rieardo "Riehie" Rangel, Jr 1945

Daisy Campos Rodriq uez 1956
Undervotes 250

Total Ballots Coun ted 4, 151

Pagel 0[ 7

1922
3. Thereafter, RR requested the Court order a machine third recount. The order was granted,

and upon the machine recount, a hearing was held concerning the efficacy of that recount. The

Court ordered the election administrator to provide the Cast Vote Record ("CVR") to all parties. At

trial, Elections Administrator Jose Castillo testified that he had the most faith in the CVR as

accurately reflecting the vote. The Court found him to be knowledgeable and credible.

4. The Court finds the Election Night Count and the CVR as the accurate count of the votes

and should be the vote used in the determination of this cause. Further, the Court finds that Webb

County does not maintain the votes in a temperature-controlled environment, thus leading to issues

of ballots on thermal paper that stick together and not properly preserved for recount.

5. Accordingly, the Court finds there is a six-vote difference between RR and Daisy Campos

Rodriquez, hereafter referred to as ''OCR.''

6. RR alleges that numerous individuals voted illegally because they were not residents of

District II and had worked in concert to claim residence for the purpose of electing their friend and

family member to the position. The evidence at trial showed a familial, friendship, and residency

concert. A person may not establish residence for the purpose of influencing the outcome of a

certain election. TE..x. ELEC. CODE ANN. § 1.015 (b).

Illegal Voters

1. KATEMEZA

Meza admitted that someone asked her to change her address. She did not live in District II,

and in fact lived in Rio Bravo. Her friend asked her to vote for DCR, and she did. The Court finds

her credible. Kate Meza illegally voted for DCR. Her vote should be deducted from DCR's vote

total. Her registered address was 3003 Pecos Plaza. Seventeen other voters are also registered at this

address.

2. MARIA DE LOS ANGELES MARTINEZ

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 Maria De Los Angeles Martinez testified that she never lived in District II "in her life,"

although she registered her address as 3507 S. Martin, which is located in District II. She testified

that she occasionally stays with friends and at a gathering they suggested ''let's go vote." The Court

finds she voted illegally. She did not state who she voted for and claimed she did not remember.

Her residence is 3001 Musser, which is located in District III. The Court finds she voted for DCR.

3. VINCENTE RODRIGUEZ

Vicente Rodriguez, DCR's brother-in-law, had abandoned his registered residence at 3124

Potomac Loop, located in District II, six years before this election. Eight individuals are also

registered to vote at this address. His residence is 7306 Ezra Pound. He is related to DCR, and he

voted for DCR illegally.

4. JUAN VILLA

He is DCR's former brother-in-law. He voted for DCR. He has not lived at Pecos Plaza,

which is his registered voter address since September 2021. His divorce from Valerie Campos was

finalized on January 27, 2022. He voted illegally and admitted voting for DCR.

5. PATRICIA SOTO

Patricia Soto is DCR's first cousin. She claimed 3304 S. Bartlett, located in District II, as her

residence by changing her registration address after the March 1" primary election. Her residence is

actually 204 Middleston Drive, which is located outside of District II. She voted illegally for DCR.

6. BRYAN VICHARELLI

Bryan Vicharelli stated that his registered voter address of 2601 Lomas Del Sur was

temporary and not a permanent address. This is the apartment rented by Yaretzi Campos. He

supported DCR and voted for her illegally.

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7. RAULRIOS

Raul Rios listed 3304 S. Bartlett as his voter address. This is the home of his sister and he

stated that he occasionally stays there. DCR registered him to vote in 2015 when she served as a

deputy registrar and her husband was running for election in the same District. He never changed

his registered address. On January 2022, he claimed residence at 4109 Toluca and admitted living

there on December 19, 2022. He claims an eleven-year connection to that address. He illegally voted

for DCR.

8. EDGAR CAMPOS

Edgar Campos is Yaretzi Campos's brother and is the Covid Relief Fund administrator for

the City of Laredo. He lists 5422 Alamosa as his address on his employment records and admits that

he owns the property but states that it is an "investment property." He states that he lives at 3003

Pecos Plaza. He pays no rent there. The Court does not find sufficient evidence to find he voted

illegally.

9. YARETZY CAMPOS

Yaretzy Campos listed 3001 Pecos Plaza as her voter address. She claims she lives there ,vith

12 people and states that the property belongs to her uncle. She states that she lives with her uncle

and his ,vife, Alejandro and Celestina Campos. Her father's address is 3601 Bismark in District III.

Her bank records and pay stubs indicate the Bismark address as her address. 2601 Lomas del Sur is

on her employee records, which is an apartment that she rents for $800-900 a month that she got

"stuck with". She is DCR's cousin, and illegally voted for DCR.

10. CELINA AZENNETH RAMIREZ

Celina Azenneth Ramirez's residence is 4417 Exodus. She is a related to DCR and was a

campaign supporter of DCR. She engaged in block walks and bake sales for DCR during the

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1925
campaign. A deed shows that the Exodus property has been under her and her husband's name

since 2009. She enrolled her children in the Exodus school district.. She voted for DCR illegally.

11. GRISELDA ELENA CISNEROS

Griselda Elena Cisneros is registered at 312 Cazares but lives and resides at 2815 S. Musser,

which is not in District II. She has resided there for two and a half years. She cast an illegal vote for

DCR.

12. KARLA PEREYRA

KarIa Pereyra registered to vote while in high school in 2015. She never voted· until this

election. She admitted and brought proof that her residence is 1914 Juarez, which is outside of

District II. She voted illegally, and although she stated that she didn't know who she voted for, the

Court finds she voted for DCR.

13. STACI NAVARRO

Staci Navarro resides at 3702 Gregoria Lerma. She has done so for four years. She

temporarily stayed with her aunt at 2108 Green Street while her aunt was sick. She registered to vote

using her aunt's home address. The Court finds her permanent address is outside District II, located

at 3702 Gregorio Lerma. Her claim that she doesn't remember who she voted for is belied by the

fact that she actively campaigned for DCR, wore DCR's campaign shirt, and went to campaign

events. The Court finds her vote was illegally cast for DCR.

14. JOSE CARRIZALES

Jose Carrizales has lived at 2702 Gregorio Lerma for five years. He applied for homestead at

that address. He is married to Staci Navarro, who was a schoolmate ofDCR. He stayed at 2108

Green Street for only a couple of months. He stated that he believes he went to campaign events.

The Court finds his residence to be 2702 Gregorio Lerma. His claim that he doesn't remember who

he voted for is not credible. The Court finds his illegal vote was cast for DCR.

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1926
15. VOTER ANGEL VICHARELLI

Angel Vicharelli lives at 2701 Blaine, which is outside of District II. He moved out to stay at

2601 Lomas Del Sur with Jackie Estevez while he was having trouble with his father in law and

girlfriend. He is Bryan Vicharelli's brother. He did not pay rent or bills while he stayed at Lomas Del

Sur. He went to campaign events for DCR. Did not register to vote until July 2022. He is DCR's

husband's friend. The Court finds his residence, which he owns, is located at 2701 Blaine Street,

which is outside District II; and he admitted, and the Court accepts, that he voted for DCR illegally.

16. VOTER JACQUELINE ESTEVIS

Jacqueline Estevis registered to vote under 2601 Lomas Del Sur, Apt. 101. The Court finds

her claims to residency in District II are not believable. Although she claims to have no relationship

with DCR, she attended campaign events and her boyfriend is on the same softball team as DCR's

husband. She has used 320 Jazmin as her address on several occasions and "believes" that is where

her parents live. The J azmin address is her prior voter registration address. The Court finds she

registered at 2601 Lomas Del Sur for the purpose of influencing the election ofDCR. That location

is a rental by another individual which has no hot water, no internet, no cable, and is used as an

occasional residence by friends of the renter. When questioned as to who she voted for she loudly

stated RR. Her body language, tone, and attitude lead the Court to find her testimony untrue and

finds she illegally voted for DCR.

The Court, having made the above findings, declares the illegal votes cast for Daisy Campos

Ramirez must be deducted from her election night count and the accepted count by the Court, thus

finding that Ricardo" Richie" Rangel won the general election for Laredo City Council District II.

The Court taxes all costs against contestee.

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Signed and entered this the 2nd day of February 2023.

Susan D. Reed, Senior Judge, 144'" District Court

Sitting in 49'" Judicial District Court
Webb County, Texas

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1928
 Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Janie Varela on behalf of Doug Ray

Bar No. 16599200
jvarela@raywoodlaw.com
Envelope ID: 74178608
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Appellant's Brief
Status as of 3/30/2023 2:03 PM CST

Associated Case Party: Daisy Campos Rodriguez

Name BarNumber Email TimestampSubmitted Status

Doug W. Ray 16599200 dray@raywoodlaw.com 3/30/2023 1:51:42 PM SENT

Roberto Balli 795235 robertoballi@sbcglobal.net 3/30/2023 1:51:42 PM SENT

Daisy Campos daisycampos2022@gmail.com 3/30/2023 1:51:42 PM SENT

Associated Case Party: Ricardo "Richie" Rangel

Name BarNumber Email TimestampSubmitted Status

Baldemar Garcia 790740 bgarcia@pmbglaw.com 3/30/2023 1:51:42 PM SENT

Martha Cigarroa mcigarroa@wctexlaw.com 3/30/2023 1:51:42 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Vanessa Gonzalez vgonzalez@pmbglaw.com 3/30/2023 1:51:42 PM SENT