Bennie Fuelberg v. State
447 S.W.3d 304
Tex. App.2014Background
- Bennie Fuelberg, former general manager of Pedernales Electric Cooperative (PEC), was convicted by a jury of misapplication of fiduciary property, theft, and money laundering and sentenced to ten years on each count (suspended) with $126,000 restitution.
- The State alleged Fuelberg conspired with attorney Walter Demond and Clark, Thomas & Winters to divert PEC funds to Fuelberg’s brother (Curtis) and William Price by billing PEC for those payments through the law firm.
- Key evidence included Clark Thomas billing records, testimony that PEC board members had not approved the payments, and testimony from Clark Thomas partners (Duggins and McNeil) recounting statements by Demond about the billing scheme.
- Fuelberg moved to disqualify/recuse the presiding judge, Mills, arguing Mills (a PEC member and Worrall Suit participant) was a financially interested or injured party; the assigned judge (Richardson) denied the motions after hearings. The denial was affirmed on appeal.
- Fuelberg also challenged admission of Duggins’s and McNeil’s testimony as hearsay and Confrontation Clause violations, and challenged the restitution amount as exceeding the jury’s implicit findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial disqualification/recusal | Judge Mills, as PEC member and Worrall Suit participant, had pecuniary/personal interest and was a "party injured"; reasonable person would doubt impartiality | Mills’s financial interest was negligible/typical of a utility customer; presumption of judicial impartiality; any victim status was too attenuated | Denied — no abuse of discretion in finding no reasonable doubt as to impartiality |
| Admissibility — co‑conspirator hearsay (Duggins, McNeil recounting Demond) | Statements were out‑of‑court hearsay and inadmissible | Statements were admissions of a co‑conspirator made in furtherance of a continuing conspiracy to conceal the scheme | Admitted — trial court reasonably found statements were in furtherance of the conspiracy |
| Sixth Amendment Confrontation Clause | Admission of Demond’s out‑of‑court statements via others deprived Fuelberg of right to confront declarant | Co‑conspirator statements in furtherance of a conspiracy are generally non‑testimonial and do not trigger Confrontation Clause exclusion | Denied — statements were non‑testimonial; no Confrontation Clause violation |
| Restitution amount | Restitution ($126,000) exceeded jury’s implicit finding (third‑degree convictions implying < $100,000); trial court abused discretion | Record supports $86,000 for Price retainer plus at least $40,000 in investigation/data‑recovery costs caused by Fuelberg’s deletions; restitution proven by preponderance | Denied — restitution supported by preponderance; trial court did not abuse discretion |
Key Cases Cited
- Whitehead v. State, 273 S.W.3d 285 (Tex. Crim. App. 2008) (reasonable‑person standard for judicial disqualification/recusal)
- Ex parte Ellis, 275 S.W.3d 109 (Tex. App.—Austin 2008) (analysis of the appearance‑of‑impartiality test)
- Liteky v. United States, 510 U.S. 540 (1994) (presumption of judicial impartiality and judge's capacity to disregard extraneous matters)
- Forman v. United States, 361 U.S. 416 (1960) (conspiracy may continue for concealment after substantive acts end)
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statement analysis under Confrontation Clause)
- Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014) ("but for" and proximate causation for restitution)
- Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999) (restitution amount must be just and have factual basis)