                                                                                         PD-1537-14
                                                                        COURT OF CRIMINAL APPEALS
                                                                                         AUSTIN, TEXAS
                                                                     Transmitted 1/23/2015 10:55:47 AM
                                                                       Accepted 1/29/2015 10:37:14 AM
                                                                                          ABEL ACOSTA
                                   No. PD-1537-14                                                 CLERK



    In the Texas Court of Criminal Appeals
                       BENNIE FUELBERG, PETITIONER
                                         v.

                                       STATE


                   ON PETITION FOR DISCRETIONARY REVIEW
                      FROM THE THIRD COURT OF APPEALS



        REPLY TO PETITION FOR DISCRETIONARY REVIEW

KEN PAXTON                                    SCOTT A. KELLER
Attorney General of Texas                     Solicitor General

CHARLES E. ROY                                BILL DAVIS
First Assistant Attorney General              Assistant Solicitor General
                                              State Bar No. 24028280

                                              DUSTIN M. HOWELL
                                              Assistant Solicitor General

                                              OFFICE OF THE ATTORNEY GENERAL
                                              P.O. Box 12548 (MC 059)
                                              Austin, Texas 78711-2548
                                              Tel.: (512) 936-1896
                                              Fax: (512) 370-9191
   January 29, 2015                           Bill.Davis@texasattorneygeneral.gov
                  IDENTITY OF JUDGES, PARTIES, AND COUNSEL

Trial Court Judges

The Honorable Dan Mills
The Honorable Bert Richardson (by assignment)*
424th District Court, Blanco County

Parties to the Judgment

Bennie Fuelberg
State of Texas

Counsel for Appellant-Petitioner

Lead Appellate Counsel
David L. Botsford
BOTSFORD & ROARK
1307 West Avenue
Austin, Texas 78701
dbotsford@aol.com

Trial and Additional Appellate Counsel
Chris Gunter
Gene Anthes
GUNTER & BENNETT, P.C.
600 West 9th Street
Austin, Texas 78701
Chris@GunterandBennett.com

Charles O. Grigson
604 W. 12th Street
Austin, Texas 78701
Grigson@flash.net



      * Judge Richardson ruled on the judicial disqualification and recusal issues.

                                          i
Counsel for the State

Appellate Counsel
Bill Davis
Dustin M. Howell
Assistant Solicitors General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Bill.Davis@texasattorneygeneral.gov

Trial Counsel
Eric Nichols*
Deputy Attorney General
Harry White
Tom Cloudt
Assistant Attorneys General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 048)
Austin, Texas 78711-2548
Harry.White@texasattorneygeneral.gov




      * Eric Nichols is no longer with the Office of the Attorney General.

                                         ii
                                         INDEX OF AUTHORITIES

Cases

Bates v. State, 587 S.W.2d 121 (Tex. Crim. App. 1979) (en banc) ........................... 9

Burkett v. State, 196 S.W.3d 892 (Tex. App.—Texarkana 2006, no pet.) ................7

Byrd v. State, 187 S.W.3d 436 (Tex. Crim. App. 2005) ...................................1, 9, 10

Cameron v. Greenhill, 582 S.W.2d 775 (Tex. 1979) (per curiam) ..............................3

Ex parte Ambrose, 32 Tex. Crim. 468 (1893) ............................................................7

Ex parte Ellis, 275 S.W.3d 109 (Tex. App.—Austin 2008, no pet.) ..........................3

Hidalgo Cnty. Water Improvement Dist. No. 2 v. Blalock, 301 S.W.2d
  593 (Tex. 1957) .............................................................................................. 3, 5

Meador v. State, 812 S.W.2d 330 (Tex. Crim. App. 1991) (en banc) ........................ 9

N.Y. Life Ins. Co. v. Sides, 101 S.W. 1163 (Tex. Civ. App. 1907, no writ) ................ 4

Richardson v. State, 4 S.W.2d 79 (Tex. Crim. App. 1928) ........................................3

Sovereign Camp, Woodmen of the World v. Hale, 120 S.W. 539 (Tex.
   Civ. App. 1909, no writ) .................................................................................... 4

Spann v. State, 448 S.W.2d 128 (Tex. Crim. App. 1969) ....................................... 10

United States v. Godinez, 110 F.3d 448 (7th Cir. 1997) ............................................ 9

Whitehead v. State, 273 S.W.3d 285 (Tex. Crim. App. 2008)...................................7


Constitutional Provisions, Statutes, and Rules

TEX. CONST. art. V, § 11 .........................................................................................3

TEX. CODE CRIM. PROC. art. 30.01 .................................................................. 6, 7, 8

                                                         iii
TEX. UTIL. CODE § 161.059 .................................................................................... 4

TEX. UTIL. CODE § 161.059(c)–(d)......................................................................... 4

TEX. R. APP. P. 47.1 ............................................................................................... 10

TEX. R. APP. P. 66.3................................................................................................. 1

TEX. R. EVID. 801(d) ............................................................................................. 10

TEX. R. EVID. 801(e)(2)(E) ............................................................................... 9, 10

TEX. R. EVID. 803(24) ........................................................................................... 11


Other Authorities

PDR, Demond v. State, No. PD-1636-14 (Tex. Crim. App. Jan. 21, 2015) ............... 2

In re Fuelberg, No. WR-73,621 (Tex. Crim. App. Mar. 31, 2010),
    http://www.search.txcourts.gov/Case.aspx?cn=WR-73,621-01&coa=coscca ................ 2




                                                          iv
                                   No. PD-1537-14


       In the Texas Court of Criminal Appeals
                          BENNIE FUELBERG, PETITIONER
                                          v.

                                       STATE


                      ON PETITION FOR DISCRETIONARY REVIEW
                         FROM THE THIRD COURT OF APPEALS



           REPLY TO PETITION FOR DISCRETIONARY REVIEW

      Despite its reference to the “conflict[]” language of Texas Rule of Appellate

Procedure 66.3, see PDR 7, the petition for discretionary review identifies only one

purported conflict on one of its three grounds. See id. at 22 (asserting that a portion

of the court of appeals’ analysis of Petitioner’s hearsay objection conflicts with

Byrd v. State, 187 S.W.3d 436, 443 (Tex. Crim. App. 2005)). But as explained

below, the court of appeals’ opinion does not conflict with Byrd, and none of the

petition’s grounds warrants review.

      The first two grounds, concerning judicial disqualification and recusal, have

a lengthy procedural history that includes an order from this Court denying leave to

file a further petition for writ of mandamus seeking the same relief that Petitioner
requests again now. See In re Fuelberg, No. WR-73,621-01 (Tex. Crim. App. Mar.

31, 2010), http://www.search.txcourts.gov/Case.aspx?cn=WR-73,621-01&coa=cos

cca; App. Tab 1 at 2–3. That disposition was correct, and there is no reason to

revisit it. See PDR at xi, Demond v. State, No. PD-1636-14 (Tex. Crim. App. Jan. 21,

2015) (relegating the same points to an unauthorized “[u]nbriefed [i]ssue”). The

third ground concerns only a factbound analysis of hearsay objections, and the

evidence at issue was admissible under multiple theories. Because the petition fails

to identify any valid reason for granting review, it should be denied.1

      1. Petitioner properly asserted his judicial disqualification and recusal

objections before his 2010 trial, when a decision sustaining them would have

avoided the substantial waste of conducting a nine-day trial before a judge who

could not properly hear the case. See App. Tab 1 at 2–3. But Judge Mills was not in

fact disqualified or required to recuse himself, as the court of appeals determined in

an opinion that this Court declined to disturb. See id. Although Petitioner’s renewal



       1. In this reply, “App.” refers to the appendix to the petition for
discretionary review, “CR” to the clerk’s record, “RR” to the reporter’s record,
“Sx” to State’s exhibits, “SCR” and “SRR” to the supplemental clerk’s and
reporter’s records of the most recent disqualification proceedings, and “JDx” to
joint defense exhibits admitted during those proceedings. The lack of record
citations in the petition for discretionary review makes confirmation of its specific
factual assertions difficult. The relevant facts, however, are described in the court
of appeals’ opinions.


                                           2
of these assertions after his conviction resulted in additional opinions by both Judge

Richardson and the court of appeals, see App. Tabs 1–3, the law has not changed.

Petitioner’s arguments still lack merit, and they do not provide a basis for

discretionary review.

      a. Contrary to Petitioner’s contentions, see PDR 10–14, the court of appeals’

analysis of disqualification under Article V, § 11 of the Texas Constitution is

soundly based in precedent. Judicial disqualification requires certainty. Where “the

result of the suit will not necessarily subject [the judge] to a personal gain or loss, he

is not disqualified,” but rather has a duty to decide the case. Hidalgo Cnty. Water

Improvement Dist. No. 2 v. Blalock, 301 S.W.2d 593, 596 (Tex. 1957) (emphasis

added); Ex parte Ellis, 275 S.W.3d 109, 115 (Tex. App.—Austin 2008, no pet.). A

disqualifying interest must be direct, and not “uncertain[] or remote.” Hidalgo

Cnty., 301 S.W.2d at 596; accord Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex.

1979) (per curiam); Richardson v. State, 4 S.W.2d 79, 81 (Tex. Crim. App. 1928).

Under this precedent, the court of appeals correctly determined that Judge Mills

was not disqualified simply because Pedernales Electric Cooperative (“PEC”), a

nonparty to this criminal case, was his electricity provider. App. Tab 1 at 4–12.

      Petitioner’s effort to equate Judge Mills’s membership in PEC with a judge’s

ownership of stock in a party to litigation, PDR 10–12, fails for several reasons. As



                                            3
an initial matter, Petitioner does not challenge the court of appeals’ observation

that “PEC members’ capital credit accounts operate as an accounting tool . . . and

in no way equate to an ownership interest in the PEC,” App. Tab 1 at 9, and he

fails to acknowledge that the decisions he cites, PDR 11, require a “direct[]”

financial stake in a company that would “necessarily” be affected by the case at

hand. N.Y. Life Ins. Co. v. Sides, 101 S.W. 1163, 1163 (Tex. Civ. App. 1907, no writ);

accord Sovereign Camp, Woodmen of the World v. Hale, 120 S.W. 539, 540 (Tex. Civ.

App. 1909, no writ).

      Additionally, Petitioner makes only a passing reference, see PDR 13 n.5, to

Texas Utility Code section 161.059, which authorizes revenue distributions to PEC

members only if, in the PEC board’s opinion, reserves are not needed for

“improvement, new construction, depreciation, and contingencies.” TEX. UTIL.

CODE § 161.059(c)–(d); see 12.RR.22, 47, 50, 59 (testimony of PEC accountant

Mike Vollmer confirming that whether PEC members receive distributions is based

on the PEC board’s subjective determination). This provision further reflects why

Petitioner could not make the requisite showing that “the result of the suit will . . .




                                          4
necessarily subject [the judge] to a personal gain or loss.” Hidalgo Cnty., 301 S.W.2d

at 596 (emphasis added).2

      Significantly, Petitioner does not challenge the court of appeals’ observation

that Judge Mills “stood to gain only if [Petitioner] was convicted; Judge Mills, in

his discretion, ordered [Petitioner] to pay restitution; the PEC increased the

allocations to its members’ capital credit accounts based on that restitution; and

then the PEC Board, in its discretion, approved a distribution to its members from

the increase in their capital credit accounts.” App. Tab 1 at 11; see id. Tab 3 at 9

(adding that “[e]ven if all of those events occurred, Judge Mills stood to gain $5.00

at most from any potential restitution”). These contingencies reflect that Judge

Mills’s interest in PEC is comfortably removed from the type of “direct” interest

that would require disqualification.

      The petition’s reference to a separate class action in which PEC members

sued Petitioner and other former PEC officers and high-ranking employees for

alleged mismanagement, PDR 12 & n.4; see JDx 11 (3.SRR.182–208), does not alter



       2. As the court of appeals explained, a judge’s “interest in obtaining lower
electricity rates from the PEC [under section 161.059] is indistinguishable from that
of a judge who is a customer of a public or regulated utility,” and such an interest
does not require disqualification under settled law. App. Tab 1 at 10; see also id. Tab
3 at 2 (noting that “[a]ny resident in the PEC’s service area is required to join the
PEC in order to receive electric service”).


                                          5
the analysis. Judge Mills was not a named plaintiff in that action, and there is no

evidence that he played any role in it or even followed its progress. Indeed, during a

status conference, Judge Mills stated that he did not “pretend to know all the terms

and conditions of what was set out in that lawsuit,” JDx 1 at 7 (3.SRR.9), and he

expressed only vague awareness of the class-action settlement. Id. at 11 (3.SRR.13).

      In fact, the class action was based on allegations distinct from those

underlying these criminal proceedings. Compare JDx 11 at 4–6, 15–21 (3.SRR.185–

87, 196–202) (class-action petition alleging misconduct arising from dealings with

PEC subsidiary Envision Utility Software Corporation, management of PEC

members’ patronage capital, governance of PEC, supervision and compensation of

PEC officers, violations of the Electric Cooperative Corporation Act, violations of

PEC’s articles of incorporation bylaws, and tortious interference with PEC

members’     contracts),   with   1.CR.14–16     (Petitioner’s   indictment   alleging

misapplication of fiduciary property, theft, and money laundering, all in connection

with payments to two individuals not mentioned in the class-action petition); see

JDx 2 at 44 (3.SRR.62). Petitioner cites no authority suggesting that the mere

existence of this separate, civil proceeding required disqualification.

      b. Petitioner’s arguments under article 30.01 of the Texas Code of Criminal

Procedure are likewise unavailing. In the few cases finding a “party injured”



                                           6
problem under this provision, the defendant had specifically targeted the trial

judge. Whitehead v. State, 273 S.W.3d 285, 286 (Tex. Crim. App. 2008) (letter

threatening the judge); Ex parte Ambrose, 32 Tex. Crim. 468, 470 (1893) (assault on

the justice of the peace); Burkett v. State, 196 S.W.3d 892, 894 (Tex. App.—

Texarkana 2006, no pet.) (letter threatening the judge). The Whitehead jury was

also told several times that the defendant had specifically identified the judge in his

threat letter. 273 S.W.3d at 286. Here, by contrast, there is no evidence that, at the

time of the offenses, Petitioner was even aware that Judge Mills existed, much less

that he was a PEC member or that the offenses at issue either injured or might have

injured him. See SCR.72 (unchallenged finding that “[n]o evidence exists that

Judge Mills was targeted specifically by [Petitioner]”).

      To find an article-30.01 violation here, the Court would have to conclude

that a reasonable person would harbor doubts as to Judge Mills’s impartiality, see

Whitehead, 273 S.W.3d at 289, because the judge could potentially have been

injured by Petitioner’s crime to the tune of a few dollars at most—and only in the

unlikely event that PEC’s retention of the funds that the Appellants appropriated

would have caused PEC’s board, in its discretion, to approve a distribution to its

members. See App. Tab 1 at 11; id. Tab 3 at 9; see also 22.RR.181–82 (evidence that

Petitioner misdirected $716,000 of PEC funds at most); Disqualification Hearing



                                          7
Sx 1 (14.RR.13) (listing PEC’s 2008 operating revenues as $543,682,283, of which

$716,000 is approximately 0.13%). No reasonable person would harbor such doubts,

and there is no authority supporting disqualification under article 30.01 in a

scenario similar to this one.

      Petitioner’s contrary assertions, see PDR 14–17, are easily answered. Because

the statements and punishment-phase evidence that Petitioner alludes to do not

speak in terms of Judge Mills specifically, they could not help show that he was

targeted in a way that would make him a “party injured” under any decision

construing article 30.01. The public-opinion poll that Petitioner references should

be dismissed out of hand; courts do not outsource reasonable-person analysis to

random segments of the general public, and like the petition’s list of facts, the

questions underlying that poll failed to acknowledge the indirect and de minimis

nature of Judge’s Mills’s purported interest. See PDR 16 (misleadingly stating, for

instance, the approximate value of Judge Mills’s inaccessible capital account,

rather than the string of events that would have to occur for Judge Mills to obtain

$5 at most, see App. Tab 1 at 8–11; id. Tab 3 at 9). Finally, to the extent Petitioner

bases his argument on a nonpecuniary interest, he failed to preserve error. See

1.CR.47-51 (amended disqualification and recusal motion based only on Judge

Mills’s pecuniary interest in PEC).



                                          8
      2. Petitioner’s third ground likewise does not warrant review. Contrary to

Petitioner’s contentions, PDR 17–24, the court of appeals’ Rule 801(e)(2)(E)

analysis was correct, and it does not give rise to a conflict.

      As this Court has explained, a conspiracy does not end “until everything has

been done that was contemplated to be done by the conspirators.” Bates v. State,

587 S.W.2d 121, 132 (Tex. Crim. App. 1979) (en banc) (internal quotation marks

omitted). Because Rule 801(e)(2)(E) is not limited to prosecutions for conspiracy

but instead applies to any offense, Meador v. State, 812 S.W.2d 330, 332 (Tex.

Crim. App. 1991) (en banc), “[i]t is irrelevant that the [co-conspirator statements

were] not made within the time frame charged in the indictment.” United States v.

Godinez, 110 F.3d 448, 454 (7th Cir. 1997); cf. PDR 17. The rule covers attempts to

hinder apprehension, when doing so is a central objective of the crime. Byrd, 187

S.W.3d at 443.

      Petitioner characterizes the transmission of PEC money to his brother Curtis

and William Price as the sole criminal objective. PDR 17 & n.7. But Petitioner did

not rob a bank and hope he wouldn’t get caught; he funneled money out of his own

organization, hoping that the unlawful transactions would never be noticed and that

he could maintain his position of power at PEC. Ongoing concealment was

essential to the crime’s success, and as the court of appeals explained, the



                                            9
testimony at issue satisfied both the “during the course” and “in furtherance of”

elements of Rule 801(e)(2)(E). App. Tab 3 at 17–19.

      Once again, Petitioner’s contentions fail. The court of appeals’ opinion does

not conflict with Byrd, see PDR 22, which merely recognized that a rhetorical

question that did not advance a conspiracy to hinder the defendant’s apprehension

was not covered by Rule 801(e)(2)(E). 187 S.W.3d at 443. Petitioner is left to argue

that his case is distinguishable from the cases on which the court of appeals relied.

See PDR 20–22. That argument only highlights the factbound nature of this case—

undermining, rather than supporting, the request for discretionary review.3

      Finally, even assuming Petitioner’s Rule 801(e)(2)(E) assertions had merit,

the result would not change. When a court properly admits evidence under an

incorrect theory, there is no reversible error. Spann v. State, 448 S.W.2d 128, 130

(Tex. Crim. App. 1969). Some of the statements at issue, see PDR 22–24 & n.11,

were not hearsay to begin with because they were offered not “to prove the truth of

the matter asserted,” TEX. R. EVID. 801(d), but rather to show how Petitioner’s

companion in crime lied in an effort to maintain the “business as usual” fiction,


       3. Petitioner’s Rule 47.1 argument, PDR 18 & n.8, also lacks merit. The court
of appeals addressed each of Petitioner’s issues and considered the relevant
evidence, and it was not obliged to cite and distinguish every case Petitioner cited.
It properly relied on apposite authorities, rather than the inapposite ones Petitioner
advanced. See App. Tab 3 at 17–19.


                                         10
and others were admissible under Rule 803(24) as statements against interest. In

any event, Petitioner could not show harm; other evidence established not only that

Petitioner was aware of the payments to his brother and Price, but also that he was

an essential part of the criminal scheme. See, e.g., 22.RR.176–79.

                                       *****

      The petition for discretionary review should be denied.

      Respectfully submitted.


   KEN PAXTON                               SCOTT A. KELLER
   Attorney General of Texas                Solicitor General

   CHARLES E. ROY                               /s/ Bill Davis
   First Assistant Attorney General         BILL DAVIS
                                            Assistant Solicitor General
                                            State Bar No. 24028280

                                            DUSTIN M. HOWELL
                                            Assistant Solicitor General

                                            OFFICE OF THE ATTORNEY GENERAL
                                            P.O. Box 12548 (MC 059)
                                            Austin, Texas 78711-2548
                                            Tel.: (512) 936-1896
                                            Fax: (512) 370-9191
                                            Bill.Davis@texasattorneygeneral.gov




                                         11
                          CERTIFICATE OF SERVICE

     On January 23, 2015, this reply was served via File&ServeXpress on David L.

Botsford (BOTSFORD & ROARK / 1307 West Ave. / Austin, Texas 78701 /

dbotsford@aol.com) and Lisa McMinn (Office of State Prosecuting Attorney /

P.O. Box 13046 / Austin, Texas 78711-3046 / Lisa.McMinn@SPA.texas.gov).


                                                /s/ Bill Davis
                                           Bill Davis

                       CERTIFICATE OF COMPLIANCE

     According to Microsoft Word, this reply contains 2,399 words.


                                                /s/ Bill Davis
                                           Bill Davis




                                      12
