Opinion
No. 04-04-00855-CV
Delivered and Filed: April 26, 2006.
Appeal from the 83rd Judicial District Court, Val Verde County, Texas, Trial Court No. 25,187, Honorable David Peeples, Judge Presiding.
Judge Peeples presided over the trial pursuant to his assignment by the Honorable Stephen B. Ables, Presiding Judge of the Sixth Administrative Judicial Region of Texas. See Tex. Elec. Code Ann. § 231.004 (Vernon 2003).
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Robert Garza appeals the trial court's judgment declaring Dora G. Alcala the winner of the City of Del Rio's mayoral election. We affirm the trial court's judgment.
Factual and Procedural Background
On May 15, 2004, Del Rio, Texas conducted a mayoral election. Of the 4224 votes cast, the incumbent, the Honorable Dora G. Alcala, received 2149 votes or 50.87%. After the election, one of her five challengers, Robert Garza, who received 1157 votes, filed a contest contending legal votes were not counted and illegal votes were counted. Garza asked the court to determine the true outcome of the election or, if the court was unable to do so, declare the election void and order a runoff. During the ensuing two-day bench trial, the trial court heard testimony from ninety-seven live voter-witnesses, read numerous depositions, and reviewed numerous exhibits. The testimony of many of the voter-witnesses established three Alcala supporters — Dora Gonzalez, Olivia Escobedo, and Alma Staples — provided assistance in voting or the mailing of ballots without complying with the Texas Election Code. Approximately half-way through the trial, the trial judge announced that, rather than compelling a voter-witness to reveal for whom she voted, which the trial judge viewed as "a serious thing," he would instead assume, unless there was evidence to the contrary — "just to be realistic" — a voter-witness voted for Alcala if the voter-witness had received unlawful assistance from an Alcala supporter. Although Alcala's attorney "excepted" to this ruling, he later took advantage of it by seeking to reduce Garza's total by four votes, representing four carrier envelopes that were picked up and signed for but not deposited in the mail — by one of Garza's supporters, Gloria G. Garcia. Garza did not object to the trial court's ruling until he filed his motion for new trial.
After the trial concluded, the trial court denied Garza's contest and declared Alcala the winner, finding as follows:
1. In the May 15, 2004 election in Del Rio, 4224 votes were cast for six candidates for mayor. Contestee Dora Alcala received 2149 [sic] of those votes.
2. Seventy-five of those votes for Dora Alcala should not have been counted because the seventy-five voters, who voted early by mail, received unlawful assistance from persons who helped them mark their ballots and/or took possession of the ballots for the purpose of mailing them, without signing the oath and information mandated by §§ 64.034, 86.010 86.0051. Under §§ 86.010(d) and 86.006(h) those votes may not be counted. The seventy-five votes are therefore subtracted from Dora Alcala's vote total (reducing her vote total to 2074) and from the total number of votes cast.
3. Six votes for Robert Garza were cast in violation of the same election code provisions cited in ¶ 2 above. Six votes are therefore subtracted from his vote total and from the total number of votes cast.
4. The votes of two voters who attempted to vote for Robert Garza were improperly disallowed — one because of a registration dispute and the other because of an incorrect comparison of signatures. Those two votes are therefore added to Robert Garza's vote total and to the total number of votes cast.
5. To summarize the findings and conclusions stated in ¶¶ 1-4 above: (i) The total number of votes for all candidates was 4145 (4224 minus the 75 improper Alcala votes, minus the 6 improper Garza votes, plus the 2 Garza votes improperly disallowed). (ii) Dora Alcala received 2074 votes (2149 minus 75). (iii) The other five candidates collectively received 2071 votes (4115 minus 2074).
Standard of Review
"To overturn an election, the contestant has the burden of proving by clear and convincing evidence that voting irregularities materially affected the election results." Tiller v. Martinez, 974 S.W.2d 769, 772 (Tex.App.-San Antonio 1998, pet. dism'd w.o.j.) (citing Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex.App.-San Antonio 1992, writ dism'd w.o.j.), and Guerra v. Garza, 865 S.W.2d 573, 576 (Tex.App.-Corpus Christi 1993, writ dism'd w.o.j.)). "The contestant's burden is a heavy one and the declared results of an election will be upheld in all cases except where there is clear and convincing evidence of an erroneous result." Price v. Lewis, 45 S.W.3d 215, 218 (Tex.App.-Houston [1st] 2001, no pet.).
"The clear and convincing standard requires more proof than the preponderance of the evidence standard in ordinary civil cases." Id. "This standard is the degree of proof that will produce in the mind of the trier of fact a `firm belief or conviction' as to the truth of the allegations sought to be proved." Id. (quoting In re K.C.M., 4 S.W.3d 392, 395 (Tex.App.-Houston [1st] 1999, pet. denied), disavowed on other grounds by In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)). "To prove that the outcome was materially affected, the contestant must show that illegal votes were counted or an election official prevented eligible voters from voting, failed to count legal votes, or engaged in other fraud, illegal conduct, or mistake." Tiller, 974 S.W.2d at 772 (citing Tex. Elec. Code Ann. § 221.003 (Vernon 1986) and Alvarez, 844 S.W.2d at 242). "If the contestant meets his burden of proof and the trial court can ascertain the true outcome of the election, it shall declare the outcome. However, if the trial court cannot ascertain the true outcome of the election, it must declare the election void." Tiller, 974 S.W.2d at 772 (citing Tex. Elec. Code Ann. § 221.012 (Vernon 1986)). "The standard of review in an appeal from a judgment in an election contest is a determination whether the trial court abused its discretion." Tiller, 974 S.W.2d at 772.
Additional Findings and Conclusions
Garza first argues the trial court's refusal to make additional findings of fact and conclusions of law to identify by voter name each disallowed ballot has prevented Garza from pursuing his appeal because he and this court "must guess how the trial court characterized the 106 ballots of which 96 voter witnesses testified." We disagree.
"After the court files original findings of fact and conclusions of law, any party may file with the clerk of the court a request for specified additional or amended findings or conclusions." Tex. R. Civ. P. 298. However, "[t]he trial court . . . as the trier-of-fact has no duty [to] make additional or amended findings that are unnecessary or contrary to its judgment; a trial court is only required to make additional findings and conclusions that are appropriate." Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 254 (Tex.App.-Houston [14th] 1999, pet. denied). Additional findings are appropriate "only if they have some legal significance to an ultimate issue in the case." Id. at 255. But even if additional findings might be appropriate, "[t]here is no error when the requested additional findings were disposed of directly or indirectly by the original findings, and the failure to make additional findings was not prejudicial to the appellant." Id. at 257 n. 10. "The failure to make additional findings is not prejudicial to the appellant if the refusal does not prevent an adequate presentation on appeal." Id.
Here, Garza need not guess at the legal and factual bases for the trial court's judgment, as evidenced by Garza's brief in which he identifies and challenges several of the trial court's legal rulings, claims to identify seventy-nine (rather than the trial court's seventy-five) Alcala ballots that should have been invalidated, and challenges the trial court's invalidation of the six Garza ballots. Because Garza is able to identify and challenge the legal conclusions and fact findings underlying the trial court's judgment, the trial court's refusal to make additional findings and conclusions does not prevent an adequate presentation on appeal. See id. We therefore hold the trial court did not err in refusing to make additional findings and conclusions to identify by voter name each disallowed ballot. See Alvarez, 844 S.W.2d at 242 (rejecting contestant's argument that trial court's findings are "too general" because "[t]hey resolve the controlling issues and reveal the basis for the court's judgment" and "not[ing] that [the contestant] has been able to identify the factual and legal bases for the trial court's action and attack them in this court").
Re-Tabulation
Garza next argues the trial court's re-tabulation of the votes is incorrect. We again disagree.
Alcala Votes
Garza first argues the evidence establishes there were in fact seventy-nine illegal Alcala votes rather than seventy-five as the trial court found. However, Garza's count includes ballots the trial court could reasonably have found were not established to have been illegal by clear and convincing evidence or unchallenged legal rulings.
Maria and Olivia Tijerina — Garza's count includes Maria and Olivia Tijerina; and he argues under his fourth issue that "the trial court improperly allowed [their] votes."
Maria Tijerina testified that she marked her ballot without assistance, put it in the envelope, and signed it; but, because she could not get to the mailbox, her ballot was mailed by her neighbor, Luisa Blanco Sifuentes. Maria's sister Olivia's ballot was marked, signed, and mailed in the same manner. After Garza rested — but before he reopened — the trial judge expressly stated on the record that his tally at that point was seventy-four illegal Alcala votes; and this tally did not include Maria's and Olivia's ballots because he was "not inclined to disqualify those two people . . . whose neighbors mailed them in the mailbox." Garza did not object to the trial court's ruling until he filed his motion for new trial.
The method for preserving a complaint for appellate review is well-established:
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex.R.App.P. 33.1(a) (emphasis added). "This rule is to ensure that the trial court has the opportunity to rule on matters for which parties later seek review in the appellate court." In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 936 (Tex.App.-Tyler 2005, orig. proceeding). Accordingly, "an objection is considered timely urged when asserted at the earliest opportunity . . . or when the potential error becomes apparent." Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 152 (Tex.App.-Amarillo 2001, pet. denied).
The earliest opportunity for Garza to object to the trial court's ruling on the Tijerinas' ballots was of course when the trial court announced that it was "not inclined to disqualify those two people . . . whose neighbors mailed them in the mailbox" and these votes were therefore not included in the trial court's tally of illegal Alcala votes. Rather than object to this ruling, Garza accepted the court's invitation to reopen his case, called forty-seven non-appearing witnesses, sought (unsuccessfully) to compel their appearance either in person or by telephonic deposition, sought (again unsuccessfully) the admission of their statements, moved (unsuccessfully) for a continuance, called one additional witness who testified she was denied the right to vote because her name could not be found on the voter rolls, and (unsuccessfully) moved for a brief recess "to see if [he] can get some more witnesses here." Then Garza rested.
Under these circumstances, we hold Garza failed to lodge a timely objection and thus failed to preserve his complaint that the trial court improperly counted the Tijerinas' ballots. See Baker, 65 S.W.3d at 152. Therefore, we will follow the trial court's ruling and not deduct these ballots from Alcala's vote total.
Guadalupe Guerra — Garza's count also includes Guadalupe Guerra, whose testimony was as follows:
Q: Mrs. Guerra, would you state your name for the record?
A: Guadalupe Guerra or Guadalupe S. Guerra.
Q: Mrs. Guerra, do you live in Del Rio?
A: Yes.
Q: How long have you lived in Del Rio?
A: I don't remember exactly, but it's been about seventy-two years now. I don't remember.
Q: Did you vote in the most recent mayor's election back in May of this year, Mrs. Guerra?
A: Yes.
Q: Mrs. Guerra, did you vote in person or did you vote at your home by mail?
A: I voted in person.
Mr. Garcia: May I approach, Your Honor?
The Court: Yes.
Q: (By Mr. Garcia) Mrs. Guerra, I'm going to show you a copy of an envelope that usually contains a ballot. Does that look like your signature?
A: Yes. That's the way I sign. That's why I told you the S. Guerra.
Q: Do you remember, perhaps, voting by mail in the mayor's race and signing this envelope and putting your ballot in it?
A: Yes. Since the first time they arrived at home, they told me, you know, who did I want to vote for, republican or democrat, and I told them for the democrat.
Q: Who came to your house to ask you how you wanted to vote?
A: Dora, because I have known them quite a time back, since last year.
Q: Mrs. Guerra, I want to show you a photograph. Is this the person that you know to be Dora?
A: Yes, this is the one, and another one is Olivia. One is Olivia and one is Dora.
Q: And is this going to be the person named Olivia?
A: This is the one that I see the most.
Q: Do you know this person also?
A: She is a sister, but I don't remember if it's this one.
Mr. Garcia: Let the record reflect that the witness has identified Olivia Escobedo and Dora Gonzalez.
Q: (By Mr. Garcia) Did Dora Gonzalez ever go by your house to pick up an envelope with a ballot in it?
A: Well, I signed for the first time and then a few days later an envelope arrived, and it looked like the color of your shirt. She arrived at that time, at that moment.
I told her, "I'm glad you came because an envelope just arrived, and since it's in English I want you to translate it for me." She got the envelope and tore it up. I never knew what the envelope said.
Q: And did she
A: And then she told me, "The only thing I want at this moment is for you to sign for Dora Alcala." I told her — I told her, "Why? I signed already for the democrat."
She told me, "Well, because they are tied at this time, so now you have to sign for Dora." So I had to sign because she told me I had to sign.
Q: And this was Dora Gonzales asking you to sign for Dora Alcala?
A: Yes.
Mr. Garcia: Pass the witness, Your Honor.
On cross-examination, Guerra testified she had been voting by mail for two years; and her vote was voluntary. The following interchange then occurred between Guerra and the trial judge:
The Court: Dora Gonzalez told you to vote for Dora Alcala? Is that what you said?
The Witness: Yes, because there had been a tie.
The Court: But when you marked your ballot was she right there telling you this?
The Witness: Yes.
An election judge "has wide discretion to decide all matters necessary or proper to determine the contest's outcome. . . ." Tiller, 974 S.W.2d at 773. This wide discretion necessarily includes all of the discretion usually vested in a trier of fact, including the discretion to determine the credibility and weight of witness testimony. See id. at 777-78; see also Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 567 (Tex. 2000) ("It is an old and familiar rule that the fact finder may resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses.") (quoting Webb v. Jorns, 488 S.W.2d 407, 411 (Tex. 1972)).
The trial court would have acted within the ambit of its wide discretion in determining that Guerra's testimony was not sufficiently "clear and convincing" to establish that her ballot in the May 15th mayoral election — as opposed to the June 15th runoff election — was illegal. When directly asked by the trial judge whether Dora had told Guerra for whom to vote, Guerra responded "Yes, because there had been a tie." But there had not been a tie at the time of the May 15th mayoral election. Under these circumstances, we hold the trial court could properly have determined that Garza failed to establish by clear and convincing evidence that Guerra's vote in the May 15th mayoral election was illegal. We therefore will not deduct Guerra's vote from Alcala's vote total.
Manuela Grimaldo — Garza also argues "[t]he trial court appears to have invalidated the ballot of Ms. Manuel[a] Grimaldo."
Grimaldo testified she voted in the May 15th electoral election "with Dora" by mail. However, when asked whether "Dora help[ed] [her] by reading the ballot," Grimaldo testified as follows:
A: No. The green envelope arrived at my house and she told me that when that envelope arrived I should call her. I told her — Well, I showed her the document. I told her, "Well, who am I — how am I going to do this? Who am I going to vote for?" She said, "Well, vote for this person," and that's what happened.
Q: Did you vote for the person that she suggested that you vote for?
A: Yes.
Q: And what happened to your ballot after you voted?
A: Well, I think she said to tear it up, the envelope, that it wasn't good anymore.
Q: And what did she take from your house, ma'am?
A: My ballot, the one that we voted on. I have it there at home.
Q: Are you referring to the green envelope, ma'am?
A: No. We tore it up. She told me to tear it up. I'm referring to the green card that they send us by mail.
Q: Once you marked the ballot what did you do with it?
A: My ballot that they send me to vote?
Q: Yes.
A: She didn't give us anything. I kept my ballot.
Q: Did you give any papers to Dora to mail for you?
A: No.
All the trial court stated on the record regarding Grimaldo was that she "said that Dora influenced her. . . ." Under these circumstances, we hold the trial court could properly have determined that Garza failed to establish by clear and convincing evidence that Grimaldo's vote in the May 15th mayoral election was illegal. We therefore will not deduct Grimaldo's vote from Alcala's vote total.
In summary, Garza's seventy-nine vote count includes two votes (Maria Tijerina and Olivia Tijerina) the trial court found were legal without objection by Garza and two votes (Guadalupe Guerra and Manuela Grimaldo) the trial court could have found Garza failed to establish were illegal by clear and convincing evidence. We will therefore adhere to the trial court's decision to deduct seventy-five votes from Alcala's vote count and the total vote.
Alcala Exhibits 1-4
Garza next argues the trial court erred in overruling his objections and admitting Alcala's Exhibits 1 through 4 and the related deposition testimony of Gloria G. Garcia. We again disagree.
Before trial commenced, Garza offered, and the trial court admitted, the complete transcript of Garcia's deposition. When the time came for Alcala to put on her case, she read into evidence the following excerpt from Garcia's deposition:
Q: For the record, state your name and address.
A: Gloria G. Garcia. My address is 813 East Gutierrez here in Del Rio.
Q: Okay. But you may have picked up some ballots?
A: I think I picked up maybe three or four.
Q: And what did you [d]o with them when you picked them up?
A: I signed off on them, that I picked up the ballot, and I gave them to Mrs. Garza and to Robert.
Q: The ballots were given to Robert? They were not dropped off at the mailbox?
A: No. I gave them to him to drop them off. Well, actually, to Diane, my sister. She was the one that was dropping them off.
Alcala then offered the four carrier envelopes signed by Garcia and the applications for those ballots (Alcala Exhibits 1-4). Garza objected on the following three grounds:
(1) [N]one of those voters were identified in responses to the discovery. Where three of the four of those voters were identified was under potential parties, and the reason that's important, Your Honor, is when you request for disclosure, you are saying that these people are potential parties. You don't have to state their connection to the case. When you list them in response to a request for disclosure as being a person with knowledge of relevant facts, which they clearly would be, then you have to state their connection to the case.
(2) The second problem we have is that the best evidence of how those ballots were handled would be from the voters themselves.
(3) Lastly, Your Honor, there has been no violation of law because the person who picked up the ballots signed off on them.
In response, Alcala argued that, under section 86.006 of the Texas Election Code, Garcia's deposition testimony "is enough here to show that those ballots would be invalid" and Alcala Exhibits 1-4 were "public records" that "were referred to by [Garza's] own witness in sworn testimony." The trial court overruled Garza's objections and admitted Alcala Exhibits 1-4.
On appeal, Garza first argues the trial court erred in admitting the excerpt from Garcia's deposition over his objection that it was "unsupported by pleadings, undisclosed through discovery, and insufficient to disqualify four ballots. . . ." However, as the trial court pointed out, the transcript of Garcia's deposition was already in evidence. Garza also argues the trial court erred in admitting Alcala Exhibits 1-4 because "Alcala did not offer any evidence as to the eligibility of the four voters" or "that those four voters actually voted in the May 15, 2004 Del Rio Mayor's race." However, Garza made neither of these objections at trial and thus failed to preserve this claimed error for appeal. Schwartz v. Forest Pharms., Inc., 127 S.W.3d 118, 125 (Tex.App.-Houston [1st] 2003, pet. denied) (issue "on appeal must comport with the complaint raised in the trial court"). We are left then with the only objection Garza made at trial and brings forward on appeal: the trial court erred in admitting the exhibits because Alcala failed to identify the four voters in discovery and "the record does not support a finding of good cause or a lack of unfair surprise or prejudice."
"A party who fails to timely make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed" "unless the court finds" "good cause" or "the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties." Tex. R. Civ. P. 193.6(a). "The burden of establishing good cause or the lack of unfair surprise or prejudice is on the party seeking to introduce the evidence." Tex. R. Civ. P. 193.6(b). "A finding of good cause or the lack of unfair surprise or unfair prejudice must be supported by the record." Id. On appeal, we review the trial court's evidentiary rulings under an abuse of discretion standard. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986). Under this standard, "[t]he trial court does not abuse its discretion if some evidence reasonably supports the trial court's decision." Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
As Garza admitted in his arguments to the trial court, three of the four voters were identified in discovery, albeit as potential parties rather than persons with knowledge of relevant facts; and, as Alcala argued, Alcala Exhibits 1-4 were "public records" that "were referred to by [Garza's] own witness in sworn testimony." Under these circumstances, some evidence supports the trial court's implied finding that Garza was not unfairly surprised or prejudiced. We therefore hold the trial court did not abuse its discretion in overruling Garza's objection and admitting the exhibits.
Reducing Garza's Vote Count
Garza next argues the trial court erred in subtracting the four votes represented by Alcala Exhibits 1-4 from Garza's vote total. We again disagree.
To subtract a vote from a specific candidate, the court must be able to conclude the vote is illegal and was cast for the specific candidate. See Tex. Elec. Code Ann. § 221.011(a) (Vernon 2003). Here, there is no question that the four votes represented by Alcala Exhibits 1-4 were illegal. Diane Vann possessed them for the purpose of depositing them in the mail without signing the carrier envelopes. See Tex. Elec. Code Ann. §§ 86.006(f)(4), (h) (Vernon Supp. 2005); Reese v. Duncan, 80 S.W.3d 650, 657 (Tex.App.-Dallas 2002, pet. denied). And the trial judge was required by its own, earlier-announced ruling — to which Garza had not objected to attribute these votes to Garza since the unlawful assistance was provided by a Garza supporter. We therefore hold the trial court acted within the ambit of its discretion in concluding that the four ballots represented by Alcala Exhibits 1-4 were illegal and cast for Garza and deducting them from Garza's vote count and the total vote.
Assumptions
Garza next argues "the trial court erred in assuming how illegal ballots were cast, determining election results based on those assumptions, and in not declaring the election void when the number of illegal votes was great enough to change the outcome of the election." We again disagree. As noted above, the trial court announced it would presume a witness voted for Alcala if the voter received illegal assistance from an Alcala supporter. Garza did not object to this ruling when it was announced and applied for his benefit — during his case-in-chief. He therefore failed to preserve this claimed error for appeal. See Baker, 65 S.W.3d at 152.
Undisclosed Assistance
Garza next argues "the trial court erred in permitting undisclosed assistance in the marking of ballots and undisclosed neighbor mailing of ballots." We held above that Garza waived his challenge to the trial court's ruling that it would not hold illegal the Tijerinas' ballots because they were mailed by the Tijerinas' neighbor. And Garza's argument that the trial court erred in counting the ballots of Joaquin Castro (who received assistance in voting from his wife) and Mr. and Mrs. Policapio Limones (who received assistance in voting from unidentified individuals) is without merit. There is not only no evidence the trial court counted these ballots but every indication the trial court included them in the seventy-five Alcala votes declared illegal and deducted from Alcala's vote count because the voters "received unlawful assistance from persons who helped them mark their ballots and/or took possession of the ballots for the purpose of mailing them, without signing the [statutorily-required] oath and information. . . ." And even if the trial court erred in failing to declare illegal the ballot of Mrs. Emma De Luna, who received assistance in voting from her husband, that one vote would not alter the trial court's ultimate conclusion that Alcala won the election. Accordingly, the error, if any, is harmless.
To arrive at seventy-five illegal Alcala votes consistent with its rulings during trial and its findings and conclusions after trial, the trial court must have declared illegal the ballots of the following voters: Guadalupe Hernandez; Eustaquia and Julio Seldon, Sr.; Delfina Gutierrez; Manuela Grajales; Juana Q. Castro; Gloria Falcon; Gomencindo Falcon; Gloria Barrera; Serapio Barrera; Irene Sandoval; Guadalupe M. Galindo; Lourdes Hernandez; Teresa Hernandez; Elena Berton; Adelina and Guadalupe Cerna; Josefina G. and Natividad Juventino Hernandez; Raquel Sanchez; Consuelo Ramos; Jesus Davila; Francisco Hernandez; Irma B. and Jesus Rodriguez; Hermelinda Mota; Julia Perez; Victoria Nuncio; Francesca and Luis Jimenez; Gregorio Martinez (through his son Ruben Martinez's testimony); Cristina and Policarpio Limones; Guadalupe and Jesus Arreola; Oracelia S. Dominguez; Jovita Perez; Trinidad Hernandez; Maria Olivia Merscham; Florinda Cuellar; Ascension Zapata Esquivel; Filomeno and Pura Salazar; Alicia Raquel Arismendez; Cruz and Emma Rubio; Rosalinda Z. Reyes; Martha Ruiz; Berta Talamantez; Luis and Isabel Castorena; Hortencia Prado; Margarita Valdez; Rosa Medrano; Joaquina Castro; Estella Lopez Martinez; Juliana Belmares; Martina Vasquez; Carmen Martinez; Belia Maria Resendez; Anita Sotelo; Leandra and Angela De La Rosa; Isabel Huerta; Armando and Olivia Flores-Salas; Pablo and Carolina Salazar; Maria Garcia; Oralia Ramos; Pura and Armando Garcia; Joaquin Castro; Julia Sepeda; and Alfonso Martinez.
Voter Statements
Garza argues the trial court erred in excluding the statements made by voters to his campaign workers. We again disagree.
Garza first argues the trial court erred in excluding the statements because they qualified as statements against interest. See Tex. R. Evid. 803(24). However, a statement qualifies as a statement against interest if the statement, "at the time of its making," "so far tended to subject the declarant to civil or criminal liability" "that a reasonable person in declarant's position would not have made the statement unless believing it to be true." Id. (emphasis added). As indicated by the emphasized "declarant," this exception applies only if the declarant subjects him or herself to civil or criminal liability. The exception thus does not apply to Garza's voter statements, which subjected not the declarants the voters making the statements — but the person who provided illegal assistance to civil or criminal liability.
Garza also argues the statements were admissible under the authority of Green v. Reyes, 836 S.W.2d 203 (Tex.App.-Houston [14th] 1992, no writ). However, unlike the voter statements at issue in Green, Garza's voter statements are not affidavits but declarations made pursuant to 28 U.S.C. § 1746. Declarations pursuant to this federal statute do not constitute affidavits. See Guinn v. Bosque Cty., 58 S.W.3d 194, 199 (Tex.App.-Waco 2001, pet. denied).
Requests for Admissions
Finally, Garza argues the trial court erred in refusing to deem admitted over one hundred requests for admission. We again disagree.
"The primary purpose of [the rule permitting requests for admissions] is to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. It was never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense." Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (quoting Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950)).
Garza served his requests for admissions on August 6, 2004. The requests asked Alcala to admit or deny that over 130 Del Rio citizens' who voted in the May 15, 2004 mayoral race had received illegal assistance. Alcala answered the requests by stating she did not have enough information to either admit or deny them. The case was tried less than one month later on August 26-27, 2004. When Garza asked the trial court to deem the requests admitted, the trial judge denied Garza's request, explaining that "to expect [Alcala] to be able to admit on all of these people, or deny, that they do it at their peril, when it's this complicated and this subjective. I don't think that the requests for admissions is designed to reach that point." We agree and hold the trial court did not abuse its discretion in denying Garza's request to deem the requests admitted. See id.
The trial court's judgment is affirmed.