Fuelberg, Bennie
PD-1537-14
| Tex. App. | Jan 29, 2015Background
- Bennie Fuelberg convicted after a nine-day criminal trial; he sought discretionary review challenging judicial disqualification/recusal and hearsay rulings.
- Judge Dan Mills presided; Fuelberg alleged Mills had a disqualifying pecuniary interest because Mills was a member/customer of Pedernales Electric Cooperative (PEC) and PEC received restitution allocations tied to Fuelberg’s conviction.
- Procedural history includes prior mandamus proceedings in this Court denying relief (In re Fuelberg) and subsequent opinions from the Third Court of Appeals upholding denial of disqualification and evidentiary rulings.
- Petitioner renewed claims post-conviction; the State argues judge’s PEC interest was remote, contingent, and de minimis (at most ~$5), and therefore not disqualifying under Texas law.
- On hearsay, Petitioner challenged admission of co-conspirator statements under Tex. R. Evid. 801(e)(2)(E); the court of appeals found the statements were made during and in furtherance of ongoing concealment integral to the offenses.
Issues
| Issue | Fuelberg's Argument | State's Argument | Held |
|---|---|---|---|
| Judicial disqualification under Tex. Const. art. V, § 11 | Mills’ PEC membership and capital credit account created a financial interest tied to restitution and required disqualification | PEC membership is not ownership; any gain was speculative, contingent on board decisions, and de minimis; no direct interest | Court held no disqualification: interest was remote/contingent and insufficiently direct |
| Recusal under Tex. Code Crim. Proc. art. 30.01 ("party injured") | Fuelberg argued judge could be viewed as a party injured because PEC potentially lost funds due to his alleged crimes | State: no evidence judge was targeted or aware; any injury was indirect and negligible; precedents require targeted or direct injury | Court held no article 30.01 violation: no reasonable basis to doubt impartiality |
| Hearsay — admission of co-conspirator statements (Tex. R. Evid. 801(e)(2)(E)) | Statements fell outside the scope because alleged criminal objective was limited to transfers, not ongoing concealment; some challenged statements merely rhetorical | State: concealment and maintaining "business as usual" were central and ongoing to the scheme; statements were during and in furtherance of that objective; some statements were non-hearsay or admissible under other exceptions | Court held statements admissible under 801(e)(2)(E); even if theory incorrect, admission harmless because statements admissible for non-hearsay or as statements against interest |
| Request for discretionary review/conflict of authorities | Fuelberg claimed the court of appeals’ hearsay analysis conflicted with Byrd and other authorities | State: no conflict; Byrd distinguished; decision is factbound and consistent with precedent | Petition for discretionary review denied (State urges denial) |
Key Cases Cited
- Bates v. State, 587 S.W.2d 121 (Tex. Crim. App. 1979) (conspiracy continues until all contemplated acts complete; informs co-conspirator statement analysis)
- Byrd v. State, 187 S.W.3d 436 (Tex. Crim. App. 2005) (limits on co-conspirator hearsay when statements do not further concealment or apprehension)
- Hidalgo Cnty. Water Improvement Dist. No. 2 v. Blalock, 301 S.W.2d 593 (Tex. 1957) (disqualification requires a direct, not remote or uncertain, personal interest)
- Meador v. State, 812 S.W.2d 330 (Tex. Crim. App. 1991) (Rule 801(e)(2)(E) applies beyond conspiracy prosecutions to statements made in furtherance of the charged offense)
- Whitehead v. State, 273 S.W.3d 285 (Tex. Crim. App. 2008) (article 30.01 requires the defendant to have targeted or injured the judge to support disqualification)
- Cameron v. Greenhill, 582 S.W.2d 775 (Tex. 1979) (per curiam) (interest must be direct to disqualify judge)
- Spann v. State, 448 S.W.2d 128 (Tex. Crim. App. 1969) (admission under incorrect theory need not produce reversible error if evidence properly admissible on another ground)