In a recent filing, expected to be the last brief before the court renders a decision, attorneys for Mission Mayor Armando O’Caña responded to arguments made by attorneys of former Mayor Norberto “Beto” Salinas.
The brief, filed Dec. 20, afforded O’Caña’s attorneys an opportunity to respond to criticisms Salinas’ attorneys made in their brief that was filed earlier this month on Dec. 11.
The Salinas brief itself was a response to the O’Caña team’s original arguments made to the 13th court of appeals for why the 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, be reversed.
Salinas’ attorneys argued that O’Caña’s attorneys did not lodge specific attacks on the trial court’s actual findings and that their arguments against the expert witness in the brief were not the same made during the trial and therefore couldn’t be made to the appellate court.
Salinas’ attorneys also argued, in response to allegation that they did not provide evidence of the final canvass, 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.
Regarding whether certain evidence should have been admitted into evidence or not, Salinas’ attorneys argued that 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.
In this latest brief, O’Caña’s attorneys state the Salinas team is wrong.
“The Supreme Court of Texas has emphasized that appellate courts must construe appellate briefs liberally to obtain a just, fair, and equitable adjudication and so that the right to appellate review is not easily lost by waiver,” O’Caña’s attorneys stated in the brief.
The O’Caña attorneys again reiterate their argument that the Salinas side did not prove there were enough illegal votes cast to affect the outcome of the election.
“It must be emphasized that the only way that a trial court may void the election results is if the trial court determines that the number of illegal votes is equal to or greater than the number of votes necessary to change the outcome of an election,” the attorneys stated.
They argue that the maximum number of illegal votes found based on non-expert testimony was 25 and that testimony by one witness, Carmen Ochoa, in which she said she saw a campaign worker carrying about 200 mail-in ballots, was based on a guess and did not constitute clear or convincing evidence.
Based off of the testimony of the expert witness, George Korbel, they argue that the maximum number of illegal votes identified were 75 and that his opinions were based upon unreliable data and upon analytical gaps.
They also argued that they did not waive their arguments against Korbel by bringing up issues for the first time on appeal.
“First, in a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence may be made for the first time on appeal in the complaining party’s brief,” they stated.
Secondly, they stated they filed a motion to exclude Korbel’s testimony that addressed his qualifications, experience, skill, knowledge, training and education.
They also reiterate that there was never any evidence submitted of the final canvass results of the June 9, 2018 runoff election, addressing the argument by Salinas’ attorneys that the trial court could take judicial notice of the results.
“In fact, Salinas never requested that the trial court take judicial notice of the June 9, 2018 run-off election final canvass results,” the O’Caña brief stated. “The evidence of the final canvass results goes to the merits of the case, the very heart of the case. Salinas chose not to submit this evidence at his peril.”
Regarding whether O’Caña’s attorneys waived their objection to admitting the combination forms into evidence, they argued that waiving it for two pages of the document did not mean they waived it for the entirety of it.
They also repeat their argument made in their first brief that some evidence admitted was hearsay including documents where Korbel listed the election results.
“Exhibits 90-95 are hearsay and were created by George Korbel entirely based upon unofficial election results,” the brief stated.
The brief goes on to address other arguments made by the Salinas team which includes disputing how many bribed votes were actually proved during the trial.
Though the case was ordered accelerated, it is unclear how soon the appellate court will decide whether or not to uphold the ruling to void the Mission election.
Once the appellate court does rule, the parties will have five days to request a rehearing of the case.