In the latest development in the Mission election saga, attorneys for former Mayor Norberto “Beto” Salinas filed their response last week to the appeal brief filed on behalf of Mayor Armando O’Caña to the 13th Court of Appeals.
The brief filed by O’Caña’s attorneys last month argued that the October decision by Visiting Judge J. Bonner Dorsey to void the June runoff election in which Salinas was unseated after 20 years in office by O’Caña, who at the time was a city council member, be reversed.
However, in their response, Salinas’ attorneys argued that O’Caña’s attorneys waived all issues on appeal by failing to lodge specific attacks on the trial court’s actual findings.
In the brief filed by O’Caña’s attorneys, they argued that Salinas’ camp failed to prove there were enough illegal votes cast to overturn the election; that the trial court should not have allowed the expert witness to testify; that there was insufficient evidence of the final results of the runoff; and that the judge should not have admitted several documents into evidence because they were not properly certified.
The Salinas team argued, however, that in disputing the number of illegal votes cast, O’Caña’s attorneys focused on disputing the testimony of one witness while completely ignoring testimony from another.
“O’Caña spends three pages of his brief arguing why the trial court should have disregarded Carmen Ochoa’s testimony, but it completely ignores testimony from Maribel Salinas, which the trial court credited in Findings of Fact 39–41,” the Salinas team stated.
They also disputed the O’Caña team’s assertion that the expert witness, George Korbel, should not have been allowed to testify and that the arguments made against him in the brief are not the same arguments they made during the trial and therefore cannot be made to the appellate court.
Regarding his qualifications, they argue that O’Caña’s attorneys frame the qualifications “so narrowly that no one could ever conduct an election analysis where the allegations involved a specific type of voter fraud possessing some unique characteristic.”
“This Court need not accept O’Caña’s framing of the issues so narrowly as ‘ballot harvesting’ and ‘voter bribery,’” the brief stated. “Rather, the subject matter of Korbel’s testimony is election analysis and election contests in the context of illegal voting, for which Korbel certainly is qualified.”
With regard to an argument from O’Caña’s petition that there was no evidence on how the voters whose votes were illegally harvested actually voted, the Salinas brief stated that they did not have to prove how they voted, whether their ballots reflected a vote for the person they actually chose, or whether their ballots were tampered with, altered, or destroyed.
They argued that if the court found that illegal votes were cast but cannot ascertain how many voters voted, the court should consider those votes when making its judgment.
In rebutting the O’Caña’s team argument that they lacked or had insufficient evidence of the final results or that some votes were actually counted, they argued that “appellate courts have long held that trial courts take judicial notice (from) municipal election results” and added that the results were available on the city of Mission’s website and on the Hidalgo County website.
However, they state that if the court did err, the error was harmless because the election results are the same as the results that were admitted into evidence.
They also argue O’Caña’s attorneys did not cite a specific caselaw that said the Salinas team was required to provide evidence that every vote was counted.
In regard the argument that certain evidence should not have been admitted, they argue the complaint about admittance of combination forms was waived because O’Caña’s attorneys requested that the judge admit a portion of the same combination form and also relied on them before and after lodging their objections.
They argued the acceptance of Facebook messages by the judge was not an error because they are excepted from hearsay rules. Also, they stated that it’s impossible for O’Caña’s team to prove the judge abused his discretion by admitting a CD containing all carrier envelopes, applications for mail-in ballots and accepted and rejected mail-in ballots because the affidavit, that could have proven it was admissible, was not entered into the record.
With the response from Salinas’ team now filed, dated Dec. 11, O’Caña’s attorneys have 10 days from that date to file their response.
Though the case will be expedited, it’s unclear how long the appellate court will take to render a decision. Once they do, the parties will have five days to file a motion for a rehearing of the case.