Green v. Reyes
836 S.W.2d 203
836 S.W.2d 203
(Cite as: 836 S.W.2d 203)
Page 9
erly held the election void because the true outcome could
not be ascertained. Appellant's points of error one, two,
three, four, five, six, seven, eight, nine, ten, eleven, twelve,
and fifteen are overruled.
[8][9] Further, in points of error sixteen, seventeen and
eighteen, appellant argues that the evidence is insufficient to
support the trial court's Findings of Fact. Appellant first alleges insufficient evidence to support the Finding that:
the correct number of individuals that apparently voted in
both the Republican primary and the Democratic run-off
was 429. Of these, approximately 97.5% (418) probably
voted in the Green/Reyes race in the multi-race run-off
election, because that percent of all run-off voters cast a
vote for one candidate or the other in the Green/Reyes
race.
Appellant attributes this finding to the testimony of Mr.
Kent Tedin who stated that of the voters who cast ballots in
both the Republican primary election and the Democratic
runoff election, 97.5% or 418 voters probably voted in the
Green/Reyes runoff. In non-jury cases in which both Findings of Fact and a Statement of Facts have been filed, we
must review the sufficiency of the evidence under the same
standards utilized for jury tried cases. See, e.g., McGalliard
v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1987); Gill Savings
Ass'n v. Chair King, Inc., 783 S.W.2d 674, 676-77
(Tex.App.--Houston [14th Dist.] 1989), aff'd in part on other grounds, 797 S.W.2d 31 (1990). In reviewing the sufficiency of the evidence, we must review all of the evidence
in support of the findings of the trier of fact. See, e.g., PlasTex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445
(Tex.1989). This court will reverse only if the evidence in
support of the finding is so weak as to render the outcome
manifestly unjust or clearly wrong. See, e.g., In re Kings Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).
[10] Appellee called Mr. Tedin to testify based upon his experience as a professor of political science and Chairman of
the Political Science Department at the University of Houston. After stating for the record his academic credentials,
Mr. Tedin testified that about 97.5% of the voters who voted
in the runoff election voted on the Green/Reyes issue.
We know that approximately two and a half percent of the
voters engaged in what we call, in academic political sci-
ence, roll off, meaning they did not vote in a particular
election. There is absolutely no reason to think that two
and a half percent that characterized the entire Congressional District would have been anything other than characteristic of the 430 Republicans. That is, I would expect
that you would probably find roll off of maybe two, two
and a half percent, although this is a typically motivated
group of people and it might even be less because in a
very, very low turnout runoff, these people voted twice.
*212 In addition, Mr. Tedin stated that there was "no independent factually incontrovertible way of determining who
a person really voted for." Although the Findings of Fact in
a judge-tried case are not conclusive when a complete statement of facts appears in the record, great deference must be
given to the judge's determination of the witnesses' credibility and the weight to be given to their testimony. See, e.g.,
Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44
(Tex.App.--Houston [14th Dist.] 1985), writ ref'd n.r.e. per
curiam, 699 S.W.2d 199 (Tex.1985). We find Mr. Tedin's
testimony sufficient to support the Finding that "approximately 97.5% (418) [illegal voters] probably voted in the
Green/Reyes race...."
[11] In addition, appellant argues that there is insufficient
evidence to support the judge's Finding that the remaining
116 unascertained votes were indeed illegal. The final number of unascertained votes included both the 116 illegal
voters from whom no statement or testimony was procured
as well as the 10 illegal voters who stated that they could
not remember for whom they had voted. Nevertheless, Ms.
Barbara Duganier of the Arthur Andersen Company testified
that she reviewed the lists for both the Republican primary
election and the Democratic runoff to compile a list of those
voters who had illegally voted. The list was compiled
through a comparison of voter names, voter registration
numbers and precinct numbers. Further, she confirmed that
another employee of the Arthur Andersen Company had
compared the signatures of the voters as an added measure
to determine whether it was indeed the same voter who
voted in both elections. On cross-examination, Ms. Duganier admitted that neither she nor the other employee were experts in handwriting analysis and therefore she could not
testify as an expert. On this basis, appellant contends that
there was insufficient evidence to show that there were in-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
235
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