NO. PD-1 5 3 7 -1 4

I N THE COURT OF CRI M I NAL APPEALS OF TEXAS

BENNI E FUELBERG, Appel l a nt VS. THE STATE OF TEXAS, Appel lee APPELLANT' S PETI TI ON FOR DI SCRETI ONARY REVI EW ON REVIEW

FROM THE COURT OF APPEALS FOR THE THIRD J U D ICIAL DISTRICT OF TEXAS,

A T AUSTIN, TEXAS

DAVID L. BOTSFORD St at e Bar No

. 0 2 6 8 7 9 5 0 Bo t s fo rd& Ro ark 1 3 07 W es tAv e. Au s ti n, Tex as 7 8 7 0 1 (5 1 2 ) 4 79 -8 0 3 0 (Tel ) (5 1 2 ) 4 79 -8 0 4 0 (Fax ) db ot s fo rd @ao l

. co m

(Em ai l )

ORAL ARGUMENT REQUESTEDTABLE OF CONTENTS

In d ex Of Au th o ri t i es . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i i St at em en tReg ard i n g Oral Arg u m en t
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 St at em en tOf Th e Cas e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 St at em en tOf Th e Pro cedu ral Hi s t o ry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Gro un d s Fo r Rev i ew. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Gro u n d Fo r Rev i ew No

. 1 : Th e Co u rt O f Ap p e a l s E rr e d By Ho l d i n g Th atJu d g e M il l s W as No tDi s qu al i fi ed

. Gro u n d Fo r Rev i ew N o . 2 : T h e Co u rt O f Ap p eal s Erred By Ho l d i n g Th at J u d g e Ri ch ard s o n Di d N o t Ab u s e H is Di s cret i o n By Fi nd i n g Th at J u d g e M i l l s W as No tSub jectTo Recu s al

. Gro u n d F o r R e v i e w No

. 3 : Th e Co u rt O f Ap p eal s Erred By Ho l d i n g Th at J u d ge M i l l s D i d No t Ab u se Hi s Di s cret i o n By Ov erru l i n g Fu el berg 's O b

ject io n s To Th e Adm i s s i b il i ty O f Al l eg ed Co -co n s p i rat o r St at em en t s T h at W ere No t M ad e D u r i n g Th e Co urs e Of Or In Fu rtheran ce Of An y

Co n s p i racy . Reas o n s Fo r Rev iew.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Di s cu s si o nOf Gro u n d s Fo r Rev i ew. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Gro u n d Fo r Rev i ew No . 1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Gro u n d Fo r Rev i ew No . 2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Gro u n d Fo r Rev i ew No . 3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7 Co n cl u s i o nAn dPray er. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4 Cert i fi cat e Of Co m

pl i an ce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4

iCert i fi cat e Of Serv i ce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4

Op i ni o nOf Co u rtOf Ap p eal s : Au gu s t2 7, 2 0 1 3

. . . . . . . . . . . . . . . . . . . . . TAB # 1 Ord er Of Co u rto f Ap p eal s : J an u ary 7 , 2 0 1 4

. . . . . . . . . . . . . . . . . . . . . . . . TAB # 2 Op i ni o nOf Co u rtOf Ap p eal s : Ju ly 1 6 , 2 0 1 4

. . . . . . . . . . . . . . . . . . . . . . . . TAB # 3

i iINDEX OF AUTHORI TI ES

CASES P AGE FI RST CI TED Arms tr on g V. Stat e , 8 4 5 S.W . 2 d9 0 9 (Tex .Cri m .Ap p . 1 9 9 3).

. . . . . . . . . . . . . . . 1 8 Bu r ks v. Un i t ed

Sta t es , 4 3 7 U.S. 1 (1 97 8 ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0 Byrd v. Sta t e , 1 8 7 S.W . 3 d4 36 (Tex .Cri m .Ap p . 2 0 0 5 ).

. . . . . . . . . . . . . . . . . . . . 2 2 Ca mer o n v. Gr een h i l l , 5 8 2 S.W .2 d7 7 5 (Tex . 1 97 9 ).

. . . . . . . . . . . . . . . . . . . . . . 1 0 Ex p a rt e El l is , 2 7 5 S.W . 3 d1 0 9 (Tex .Ap p .—Au s t i n2 0 0 8 , n o p et ).

. . . . . . . . . . . 1 1 Fo rd v. GTE Ma r

ket Res ., In c. , 1 99 7 W L 6 44 8 9 7 (Tex .Ap p -Dal l as 1 9 9 7 , p et . d en i ed ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4 Fo rm a n v. Un i t ed

Sta t es , 3 6 1 U.S. 4 1 6 (1 96 0 ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0 Fu el b er g v. Sta t e , 4 1 0 S.W .3 d4 9 8 (Tex .Ap p .—Au s t i n2 01 3 )..

. . . . . . . . . . . . . . . 5 Fu el b er g v. Sta t e , 2 0 1 4 W L 1 0 8 3 2 1 (Tex

. Ap p.—Au st i n 2 0 1 4 ).

. . . . . . . . . . . . . . 6 Fu el b er g v. Sta t e , _

_ S.W .3 d

_

_ (Tex .Ap p .—Au s ti n2 0 14 ); 2 0 1 4 W L 3 55 8 7 6 1 (Tex .Ap p .—Au s ti n2 0 1 4 ).

. . . . . . . . . . . . . . . . . . . . . . . 6 Gr u newa ld

v. Un i t ed Stat es , 3 5 3 U.S. 3 9 1 (1 9 5 7 ).

. . . . . . . . . . . . . . . . . . . . . . . . 2 0 Gu i dr y v. Sta t e , 9 S.W .3 d1 3 3 (Tex .Cri m . Ap p . 1 9 9 9 ).

. . . . . . . . . . . . . . . . . . . . . 2 3 Ki n g v. S a p p , 2 S.W . 5 7 3 (Tex . 1 8 8 6 ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 Ki n g v. Sta t e , 8 4 8 S.W .2 d1 4 2 (Tex .Cri m . Ap p . 1 9 9 3 ).

. . . . . . . . . . . . . . . . . . . . . 1 8 Kr u l ewi tch v. Un i t ed

Sta t es , 3 3 6 U.S. 4 4 0 (1 9 4 9 ).

. . . . . . . . . . . . . . . . . . . . . . . . 1 9 Men d ezv. Sta t e , 5 6 S.W . 3 d8 8 0 (Tex .Ap p.—Au s t i n2 0 0 1 , p et . ref'd ).

. . . . . . . . 2 2 i i iNew Y

o r k Li f e In s . Co . v. Si d

es , 4 6 Tex .Ci v .Ap p . 2 4 6 , 1 0 1 S.W . 1 16 3 (Au s t i n1 9 0 7 , n o wri t ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 Pa h l v. W h i t t , 3 04 S.W .2 d2 5 0 (Tex .Ci v .Ap p .-El Pas o 1 9 5 7 , n o wri t ).

. . . . . . . . 1 1 Si ms v. Sta t e , 9 9 S.W .3 d6 00 (Tex .Cri m .Ap p . 2 0 0 3 ).

. . . . . . . . . . . . . . . . . . . . . . 1 8 S o ver ei gn Ca mp , W

o o d men o f th e W o r ld v. Ha le , 1 20 S.W . 5 3 9 (Tex . Ci v. Ap p . 1 90 9 ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 S p eer v. Sta t e , 8 9 0 S.W . 2 d8 7 (Tex .Ap p . -Ho u s t o n[1 s tDi s t .] 1 9 9 4 , p et .ref'd ).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 Temp l et o n v. Gi d

di ng s , 1 2 S.W . 8 51 (Tex . 1 8 8 9 ).

. . . . . . . . . . . . . . . . . . . . . . . . 1 1 Th o ma so n v. Sta t e , 8 9 2 S.W

. 2 d8 (Tex .Cri m .Ap p . 1 9 9 4 ).

. . . . . . . . . . . . . . . . . . 1 8 Un i ted Sta t es v. Ma n n , 1 6 1 F.3 d8 4 0 (5 th Ci r. 1 9 9 8 ).

. . . . . . . . . . . . . . . . . . . . . . 2 1 W h i teh ea d v. Sta t e , 2 7 3 S.W

. 3 d2 8 5 (Tex .Cri m .Ap p . 2 0 0 8 ).

. . . . . . . . . . . . . . . . . 9 W i l l ia ms v. Ci t

y Na t 'l Ba n k o f Qu a n a h , 2 7 S.W . 1 4 7 (Tex .Ci v .Ap p .—Fo rtW o rt h 1 8 94 , n o wri t ).

. . . . . . . . . . . . . . . . . . . . . . . . 1 0 W o n g S u n v. Un i t ed

Sta t es , 3 7 1 U.S. 4 7 1 (1 9 6 3 ).

. . . . . . . . . . . . . . . . . . . . . . . . . 1 9 RULES & STATUTES Tex

. R.Ap p .Pro c. 4 7

. 1.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8 Tex

. R.Ap p .Pro c. 6 6

. 3.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Tex

. R.Ap p .Pro c. 6 8

. 1.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ivNO. PD-1 5 3 7 -1 4 I N THE COURT OF CRI M I NAL APPEALS OF TEXAS

BENNI E FUELBERG, Appel l a nt VS. THE STATE OF TEXAS, Appel lee APPELLANT' S PETI TI ON FOR DI SCRETI ONARY REVI EW TO THE COURT OF CRI MI NAL APPEALS: COM ES NOW Ap p el lan t , Ben n i e Fu el b erg (Fu el b erg ), b y an d th ro u g h h i s
co u ns el o n ap p eal o n l y , Dav i d L. Bo t s fo rd , an d p u rs uan t to Tex .R.Ap p .Pro c. 6 8 .1 , p r e s e nts this P e tition f

o r D i s cret i o n ary Rev i ew, an d w ou l d s h o w th i s Ho n o rab l e Co u rt th e fo l lo wi n g : Sta tem ent Reg a rdi ng Ora l Arg um ent Oral arg u m en t wo u ld b e o f s i g n i fi can t as s i s t an ce t o th i s Co u rt b ecau s e o f th e l eg al an dfactu al co m

p lex i t i es o f th e g ro u n d s p res en t edfo r rev i ew. Sta tem ent Of The Ca s e In J u n e 2 0 0 9 , Fu el berg , th e fo rm er Gen eral Man ag er o f Ped ern al es El ect ri c Co o p erat i v e (PEC) fro m 1 97 6 u n t i l Feb ru ary 2 00 8 , wa s i n d i ct ed b y th e Bl an co Co u n ty gran d jury fo r th e fi rs t deg ree fel on y offen s es o f m i s ap pl icat i o n o f fi du ci ary 1p ro p erty an d th eft fro m PEC, an d th e s eco nd d eg ree f e l o n y o f f e n s e o f m o n ey l au n d eri n g th e p ro ceed s o f t h e m i s ap p l i cat i o nan d theft co u n t s . Th e m i sap p l i cat i o n
an d th eft co u n t s al l eg ed th at th e o ffen s es h ad o ccu rred b etw een No v em b er 1 4 , 1 9 9 6 t o M arch 1 3 , 2 0 0 7 , wh i le the m o n ey l au n d eri n g co un t a l l e g e d t h at th e o ffen s e h ad

o ccu rredb et w een Sep t em b er 1 , 2 0 0 5 an dM arch 1 3, 2 0 0 7

. Th e St at e's th eo ry was th at Fu el b erg , wi th th e ag reem en t o f W al t er Dem o n d , 1

a p art n er i n th e Au st i n l aw fi rm o f Cl ark Th o m as & W i n t ers (Cl ark Th o m a s ),

arran g ed fo r Dem o nd t o h ire Cu rt i s Fu el b erg (Fu el b erg 's b ro th er) an d W i l l i am Pri ce (the s o n o f a PEC b o ard m em b er), as co n s u lt an t s fo r Cl ark Th o m as . Cl ark Th o m as , i n tu rn , p ai d Cu rt i s Fu el b erg an d W i l l iam Pri ce wi th fu n d s co ll ect ed fro m PEC by C l a r k T h o m as th ro u g h a frau du l en t b i l l i n g s ch em e o rch es trat ed b y Dem o n d an d Fu el b erg , wi th o utd i scl o s u re t o o r ap p ro v al b y th e PEC Bo ardo f Di rect o rs . B ecau s e PEC i s a m em

b er-o wn ed u t i l i ty th at pro v id es el ect ri cal s erv i ce t o twen ty -fo u r co u n t i es i n Cen tral Tex as , an d al l res i d en t s i n th e PEC's s erv ice area are requ i red t o jo i n PEC i n ord er t o recei v e el ect ri c s erv i ce, Fu el berg an d Dem o n d fi l ed i d en t i cal v eri fi ed m o ti o n s t o d i s qu al i fy an drecu s e th e Ho n o rab le D an M il l s , a PEC

m em b er-o wn er wh o was t o p res i d e o v er b o th i n d i ct m en t s . An i n i t i al h eari n g was h el d b efo re Ju d ge M il l s o n Sep t em b er 4 , 2 0 09

. Ju d ge Mi l l s ad dres s ed th e m o ti o n s , m ad e

1 The B lanco County g r and jury also indicted D emond in a separate indictment alleg ing the same three identical offenses as those alleged ag ainst F uelberg

. 2cert ai n ad m i s s i o n s an d factu al rep res en t at i o ns reg ard i n g h is m em b ers h i p -o wn ers h ip i n t eres t in PEC, b u t d ecl i n ed t o v o lu n t ari l y d i s qu al i fy o r recu s e h i m s el f an d referred th e m ot i o n s t o th e p res i di n g ju d g e o f th e ad m i n i s trat i v e reg i o n , wh o as si g n ed th em t o the Ho n orab l e Bert Ri ch ard s o n . J u d g e Ri ch ard s on h el d an e v i d en t i ary h eari n g in No v em b er 2 0 09 o n th e

v eri fi ed m o t i o n s t o d i s qu al i fy /recu s e J u d ge M i l l s , an d s ub s equ en t l y en t ered an o rd er d en y i n g th em . Fu el b erg an d Dem on d fi l ed m o t io n s fo r l eav e t o fi l e m an d am u s wi th th e Th i rd Co u rt o f Ap p eal s , wh i ch were den i ed i n an unp ub l i sh ed o p i n i o n . In r e Demo n d , No

. 0 3 -1 0 -0 0 0 2 4-CV ( T e x. A pp. –F e b. 19, 20 1 0 ) an d In r e F u el ber g , No

. 0 3

- 1 0

- 0 0 0 2 7

- C V (Tex .Ap p .–Au s ti n Feb

. 1 9, 2 0 1 0 ). Fu el berg th en fi l ed a m o t i o n fo r l eav e t o fi l e m an d am

u s wi th th i s Co urt , wh i ch was d en i edwi th o u t wri t t en o rd er o n M arch 3 1 , 2 0 1 0

. In r e Fu elb er g , No . W R-7 3 ,6 21 -0 1 (Tex

. Cri m .Ap p . 2 0 10 ). Th e St at e s ub s equ en t l y el ect ed t o pu t Fu el b erg to tri al p ri o r t o Dem o nd

. J u d g e M i l ls p res i d edo ver b o th tri al s . 2 Du ri n g th e fi rs t d ay o f tes t i m o n y i n Fu el b erg 's tri al , J u d g e M i l l s s u s t ai n ed Fu el b erg 's h ears ay o b

ject i o n s t o t es t i m o n y f

ro m W i ll i am Pri ce reg ard i n g W al t er Dem o n d 's o u t -o f-co u rt s t at em en t s m ad e i n Jan u ary 20 0 8 , fi n d i n g them in ad m i s s i b l e

2 B oth trials were moved by J udg e Mills from B lanco County after F u elberg , Demond and the State agreed to a chang e of venue to a county o f J udg e Mills' s choice outside of the g eographical area where members of the potential jury pool w ould necessarily be PEC members/owners. F uelberg was tried in Gillespie County and Demond was tried in Kendall County

.

3u n d er Tex as Ru le o f Ev i d en ce 8 0 1 (e)(2 )(E) b ecau s e they were n o t m ad e " du ri n g th e

co u rs e" o f an y u nal l eg ed co ns p i racy b etween Dem o n d an d Fu el b erg in as m u ch as th e
o ffen s es h adt erm in at ed , acco rd i n g t o th e i n d i ct m en t , o nM arch 1 3, 2 0 07

. On th e l as t d ay o f th e St at e's cas e-i n -ch ief, J u d g e M i l l s o verru l ed Fu el b erg 's h ears ay o b

ject i o n s t o t e s t i m o ny fro m L arry M cNei l an d Dav i d Du g gi n s reg ard i n g W al t er Dem o n d ' s o u t-o f-co u rt s t at em en t s in three s ep arat e t im e fram es , al l o f wh i ch p o s t -d at ed the M arch 1 3 , 2 0 0 7 t e rm i nat i o n dat e al l eg ed i n th e i n d i ct m en t : (1 ) No v em b er/ Decem

b er 2 0 0 7 ; (2 ) Feb ru ary 2 0 0 8 ; an d (3 ) D ecem b er 2 0 0 8

. J u d g e M i l l s
o v erru l ed Fu el b er g ' s spe c if ic obj e c tions that th ey were i nad m is si b l e u nd er T ex as Ru l e
o f Ev i d en ce 8 0 1 (e)(2 )(E) as th ey were n o t m ad e (1 ) " duri n g th e co u rs e" o f an y
c o n s p i r a cy (b ecau s e th ey al l o ccu rred aft er an y al l eg ed co ns p iracy h ad t erm i n at ed

an d/o r b een ab an d o n edi n M arch 2 0 0 7 ); an d (2 ) " in furt h eran ce" o f an y co n s p i racy (b ecau s e th ey were m ere n arrat i v e d ecl arat i o n s o f pas t ev en t s an d di d n o t s o l i ci t M cNei l o r Du gg i n s t o d o an yth i n g ). Pri m ari l y on th e b as i s o f th e t es t i m on y o f M cNei l an d Du g g i n s , Fu el b erg was
co n vi ct ed (al b ei t o f l es s er i n cl ud ed o ffen s es of m i s ap p l i cat io n an d th eft ) an d th e jury
as s es s ed h is p u n i s h m en t at t en y ears co n fi n em en t an d a $1 0 , 0 0 0 fi n e o n each co u n t , b u t reco m m en d ed th at th e i m

po s i t i o n o f sen t en ce b e s u sp en ded as t o th e co n fi n em en t

o n l y . Dem o n d was al s o co n v i ct ed , b ut the im p o s i t io n o f hi s s en t en ce w as al s o

4s u s p en d ed

. Fu el b erg an d Dem o n d s ep arat el y ap p eal ed th ei r co n v ict i o n s t o th e co u rt

o f ap p eal s . Sta tem ent Of The Pro cedura l Hi s to ry On Au g u s t 27 , 2 01 3 , th e co u rt o f ap p eal s is su ed i t s i ni t i al , p ub li s h ed o p i n i o n. S ee TAB # 1 , Fu el ber

g v. Stat e , 4 1 0 S.W .3 d 4 9 8 (Tex .Ap p .–Au s t i n 2 01 3 ). Th e co urt : (1 ) o v erru l ed a p o rt i o n o f Fu el b erg 's fi rs t p o i n t o f erro r

— that J u dg e Mi l l s was d i s qu al i fi ed fro m p res i di n g o v er th e t r i al u n d er Art i cl e V, § 1 1 , o f th e Tex as Co n s t i tu t i o n , an d th erefo re h i s tri al an d co n v ict i on are v o i d ; b u t (2 ) ab at ed th e ap p eal

an d rem an d ed i t fo r a n ew h eari n g , wi th i n s tru ct i o n s t o ad dres s wh e t h e r , u n d er th e p ro p er o b ject i v e reas on ab l e-p ers o n s t an d ard , J u dg e M i l l s (a) was d i s qu al i fi ed as an i n jured p art y (p art o f Fu el b erg ' s fi rs t p o i n t o f erro r), o r (b ) s h o u l d h av e b een recu s ed b ecau s e h i s im

p art i al i ty m i gh t reas o n ab l y b e qu es ti o n ed (Fu el b erg 's s eco nd p o i nt o f

erro r). S ee TAB # 1 at 1 4 , 1 7 -1 8 ; Fu el b er g , 4 1 0 S.W .3 d at 5 1 0-5 1 1

. Th e co u rt d i d n ot ad dres s Fu el b erg 's o th er p o i n t s o f erro r. Pu rs uan t to th e ab at em en t an d rem an d , an ev id en t i ary h eari n g was h el d b efo re J u d g e Ri ch ard s o n o n No v em b er 4 , 2 0 1 3

. Tes t i m on y was ad du ced an d on Decem b er 9 , 2 0 1 3 , Ju d ge Ri ch ard s o n en t ered " Fi n d i n g s Of Fact & Co n cl u s i o ns Of Law" t o th e effect th atJu d g e M i l ls was n o td i s qu al ifi edan ds h o u l dn o th av e b een recu s ed

. On J an u ary 7 , 2 0 1 4 , th e co u rt o f ap p eal s i s s u ed an o rd er rei ns t at i n g th e ap p eal

5an d requ es t i ng fu rther b ri efi n g . S ee TAB # 2 , Fu el b er

g v. Stat e , 2 0 1 4 W L 1 0 8 3 2 1 (Tex .Ap p .–Au st i n 20 1 4 ). Ad d i t i o n al b ri efi n g w as s up p l i ed b y Fu el b erg o n M arch 7, 2 0 1 4 an db y

th e St at e o nAp ri l 2 9 , 2 0 1 4

. On J u l y 1 6 , 2 0 1 4 , th e co u rt o f ap p eal s i s s u e d i t s seco n d pub li s hed o p i n i o n,
o v erru l i ng Fu el b erg 's rem ai n in g d i s qu al i fi cat i o n an d recu s al i s su es (fi rs t an d s eco n d p o i n t s o f erro r), an d al s o di s p o s i n g o f Fu el berg 's p rev i o u s l y u n ad dres sed p o i n t s o f

e rro r. S ee TAB #3 , Fu elb er

g v. Stat e ,

_

_ S.W

. 3 d

__ (Tex .Ap p . –Au s t in 2 0 1 4 ); 2 0 1 4 W L 3 5 5 8 7 6 1 (Tex

. Ap p .–Au s t i n 2 0 1 4 ). Fu el b e r g 's m o t i o n fo r reh eari n g , fi l ed o n J u l y 3 1 , 2 0 1 4, was d en i edo nNo v em b er 1 4 , 2 0 1 4

. On No v em

b er 2 0 , 2 0 1 4, th i s Co u rt gran t ed Fu el b erg 's m o t i o n fo r ex ten s i o n o f t i m e t o fi l e a PDR an des tab l i s heda d ead l i n e o f J an u ary 1 4 , 2 0 15

.

6Gro unds Fo r Rev i ew

Gro und Fo r Rev iew No . 1 : The Co urt Of Appea l s Erred By Ho l di ng Tha t J udg e Mi l l s W a s No t Di s qua l ifi ed. Gro und Fo r Rev i ew No . 2 : The Co urt Of Appea l s Erred By Ho l di ng T ha t J udg e Ri cha rds o n Di d No t Abus e Hi s Di s creti o n By Fi ndi ng Tha t J udg e Mi l l s W a s No t Subject To Recus a l . Gro und Fo r Rev i ew No . 3 : The Co urt Of Appea l s Erred By Ho l di ng Tha t J udg e Mi l l s Di d No t Abus e Hi s Di scret i o n By Ov errul i ng Fuel berg ' s Objecti ons To The Adm i s s i bi l i ty Of Al l eg e d C o co ns pi ra to r Sta tem ents Tha t W ere No t M a de Du r i n g T h e C ours e Of Or I n Furthera nce Of Any Co ns pi ra cy .

Rea s o ns Fo r Rev i ew Fu el be r g ' s f

i rs t two gro un d s fo r rev i ew p res en t i m p o rt an t co n s t i tu ti o n al an d

s t atu to ry i s s u es rel at in g t o di s qu al i fi cat i o n an d recu s al

. Fu el b erg 's th i rd g ro u n d fo r
rev i ew p res en t s i m

p o rt an t i s s u es rel at i n g t o th e p ro p er in t erp ret at i o n o f Ru l e 8 0 1 (e)(2 )(E) o f th e Tex as Ru l es o f Ev i d en ce. Rev i ew sh o ul d b e g ran t ed as t o al l th ree i s su es u n d er Tex

. R.Ap p . Pro c. 6 6 .3 b ecau s e th e co u rt o f ap p eal s h as : (1 ) i ss ued an o p i n i on th at co n fl i ct s wi th d eci s i o ns o f o t h e r c o u rt s o f ap p eal s ; an d (2 ) d eci d e d im

p o rt an t qu es t i o n s o f s t at e l aw th at h av e no t b een b u t s h o u l d b e s et tl edb y

th is Co u rt ; (3 ) d eci ded im

p o rt an t qu es ti o n s of s tat e l aw th at c o n f l i ct wi th p ri o r d eci si o n s o f th i s Co u rtan dth e Sup rem e Co u rto f th e Un i t edSt at es ; (4 ) m i sco n s tru ed Ru l e 8 01 (e)(2 )(E) of th e T ex as Ru l es o f E v i den ce; an d

7(5 ) s o far d ep art ed fro m th e accep t ed an d u s u al co u rs e o f j u d i ci al

p ro ceed i n g s as t o cal l fo r an ex erci s e of th i s C o u r t 's po wer o f s up erv i s i o n . Di scus s i o n Of Gro unds Fo r Rev i ew Gro und Fo r Rev i ew No . 1 And Gro und Fo r Rev i ew No . 2 In h i s fi rs t p o i n t o f erro r, Fu el b erg as s ert edth at J u d g e Mi l l s was di s qu al i fi ed

u n d er Art i cl e V , §1 1 , o f th e T ex as Co n s t i tu t i o n (" No ju d g e s h al l s i t i n an y cas e wh erei n h e m ay b e i n t eres t ed " ), Ru l e 1 8 b (1 )(b ) o f th e T ex as Ru l es o f Ci v i l Pro cedu re (" Di s qu al i fi cat i o n . J u d g es s h al l d is qu a l i fy th em s el v es i nal l p ro ceed i n g s i n wh i ch

.

. . th ey kn o w th at , i n d i v idual l y o r as a fi du ci ary , th ey h av e an i nt eres ti n th e s ub ject

m at t er i n co nt ro v ers y " ), an d Art i cl e 3 0 .0 1 of th e Co d e o f C r i m in al Pro cedu re (" n o ju d g e o r ju s t i ce o f th e p eace s h al l s it i n an y cas e wh ere he m ay b e th e p art y in jured " ) b ecau s e of h i s fi n an ci al i n t eres t i n PEC as a m em b er-o wner an d h i s s t atu s as a v i ct i m
o f th e o ffen s es al l eg ed l y

co m m i t t ed b y Fu el b erg , In h is s eco n d p o i n t o f erro r, Fu el b erg as s ert ed th at J u d g e M il l s sh o u l d h av e b een recu s ed u n der Tex as Ru l e o f Ci v i l Pro cedure 1 8 b (b )(1 ) (" A ju d g e s h al l recu s e h i m s el f i n an y p ro ceed i n g i n wh i c h

. . . h is i m p art i al i ty m i g h t reas o n ab l y b e qu es ti o n ed " ) b ecau se, g iv en hi s fi n an ci al i n teres t i n PEC as a m em b er-o wn er an d h i s
s t atu s as a v ict i m of th e o ffen s es al l eg ed ly co m m i t t ed b y Fu el b erg , h i s "i m p art i al i ty
m i g h treas o n ab l y

b e qu es t i o n ed ."

8In i t s i n i ti al op i n i o n , th e co u rt o f ap p eal s ad dres s ed th e fi rs t p ro n g o f Fu el b erg 's

d i s qu al i fi cat i o n p o in t

— w h et h er J u d g e M il l s 's p ecu n iary i n t eres t d is qu al i fi ed h i m

u n d er Art i cl e V, § 1 1 o f th e Tex as Co n s ti tut i o n

— an d h el d th at Ju d g e Mi ll s was n ot d i s qu al i fi ed b ecau s e hi s fi n an ci al i n t eres t was t o o a t t e n u at ed an d co n t i n g en t to

m an d at e d is qu al i fi cat i o nu n d er Art i cl e V, § 11 . Sl i p o p . at7 , 1 0 -1 1

. Becau s e J u d g e Ri c h a r d s o n h ad fai led t o fu l l y ad dres s th e s eco nd p ro n g o f Fu el b erg 's d i s qu al i fi cat i o n i s su e

— wh et h er J u d g e M i l l s was d i s qu al i fi ed as " a p art y i n jured " u n d er Art icl e 30 .0 1

— an d h ad u t i l i zed an i m pro p er s t an d ard i n o ri g i n al l y
o v erru l i ng Fu el berg 's recu s al i s s u e, th e co u rt of ap p eal s ab at ed th e ap p eal an d

rem an dedth e cas e fo r a d et erm i n at i o n o f: (1 ) Wh et h er J ud g e M i l ls was d i s qu a l ifi ed u nd er Art i cl e 3 0 .0 1 o f th e Co d e o f Cri m i n al Pro cedu re, as i n t erp ret edb y W h i t eh ea d v. Sta t e , 2 7 3 S.W

. 3 d2 8 5 (Tex .Cri m .Ap p . 2 0 0 8 ), as a v ict i m o f th e al l eg ed o ffen ses an d h e n ce an i n

j u red o r i n t eres t ed part y t o th e o ffen s es al l eg ed in th e i n d i ctm en t , TAB # 1 at 12 -1 4, 1 8 , Fu el b er g , 4 1 0 S.W .3 d at 5 0 7 -5 0 8 , 5 1 1 ); an d (2 ) Wh et h er J u d g e Mi l l s s h o u ld h av e b een recu s ed un d er T ex as Ru l e o f Ci v i l Pro cedu re 18 b (b )(1 ) b ecau s e hi s " i m p art i al i ty m i g h t reas on ab ly be qu es t i o n ed ," TAB # 1 at 1 4 -1 8 , Fu el ber g , 4 10 S.W .3 d at 5 08 -5 1 1 , g i v en h i s fi n an ci al i n teres t in PEC an d h i s st atus as a p o t en t i al " in jured p art y " t o th e o ffen s es al l eg edi nth e i n d ict m en t
. Aft er rei n st at i n g th e ap p eal , th e co u rt o f ap peal s ' s eco n d o p i n i o n reject ed b o th

o f th es e i s s u es , h o l d i n g th at J ud g e M i l l s was n o t di s qual i fi ed u n d er Art i cl e 3 0 .0 1 o f th e Co d e o f Cri m i n al Pro cedu re as an " i n jured p art y ," an d th at J u d g e Ri ch ard s o n d id 9n o t ab us e h i s d i s cret io n i n h o ld i n g that J u d g e M i l l s sh o ul d n o t h av e b een recu s ed

u n d e r T ex as Ru l e o f Ci v i l Pro cedu re 1 8 b (b )(1 ) b ecau s e a reas o n ab l e p ers o n wo u ld

n o td o ub th i s i m

p art i al i ty . TAB # 3 at7 -1 6

. a . Rev i ew Sho ul d Be Gra nted To De t e r mi n e W hether J udg e Mi ll s ' s Pecuni a ry Interes t W a s Suffi ci ent T o J us ti fy Di s qua li fi ca ti o n Under Arti cl e V, § 1 1 o f the Tex a s Co ns ti tuti o n. Res o l u t i o n o f th e fi rs t p ro n g o f Fu el b erg 's d i s qu al i fi cat i o n i s s u e

— Art i cl e V, § 1 1 , o f th e Tex as Co n st i tut i o n

— was o ne o f " fi rs t i m p res s io n i n th i s Co u rt ." TAB # 1 at6 , Fu el b er

g , 4 1 0 S.W

. 3 dat5 0 4 . Th e co u rtco u ch edth e i s s ue as fo ll o ws : Do es a ju d g e's p art i ci p at i o n i n a m em b er-o wn ed u t i l i ty co o p erat iv e d i s qu al i f y h i m fro m h eari n g cas es th at m i gh t affect th e co o p erat iv e fi nan ci al l y ? Un d er th e fact s o f t h i s c a s e, w e an s wer n o . TAB # 1 at 6 , Fu el b er g , 4 1 0 S.W .3 dat5 0 4. Th e co u rt a c k no wl ed g ed th e wel l " s et tl ed pri n ci p le" th at the i n t eres t wh i ch d i s qu al i fi es a ju d g e i s that i nt eres t , h o wev er s m al l , wh i ch r e s t s up o n a d i rect p ecu ni ary o r p ers on al i n t eres t i n th e res u l t o f th e cas e," ci t i n g Ca mer o n v. Gr een h i l l , 5 8 2 S.W .2 d 7 7 5 , 7 76 (Tex

. 1 9 79 ). TAB # 1 at7 , Fu el ber g , 41 0 S.W .3 d at5 0 4

. Th e
co u rt al s o ackn o wl ed g ed th at i f a ju dg e h as a d i rect fi n an ci al i n teres t i n th e o u t co m e
o f th e cas e, " s uch as s t o c k o wn e r s h i p i n a co m p an y wh o i s a p art y t o the cas e," th e ju d g e i s d i s qu al i fi ed , ci t i n g W i l l i a ms v. Ci t

y Na t'l Ba n k o

f Qu an a h , 2 7 S.W

. 1 4 7 , 1 4 8 (Tex

. Ci v . Ap p . – Fo rt W o rth 1 8 9 4 , n o wri t ). Id

. Th e c o u rt a l s o n o ted Fu el b erg 's rel i an ce o n ad d i t i on al , wel l es t ab l is h ed cas e l aw th at a j u d ge wh o i s a s t o ckh o l d er in 10a co rp orat i o n i s d i s q u al i fi ed u n d er Art i cl e V, § 1 1 o f th e Tex as Co n s t i tu t i o n fro m

s i tt i n g as a ju d g e i n a tri al wh ere th at co rp o rat i o n i s a p art y . S ee Pa h l v. W

h i t t , 3 0 4 S.W .2 d 25 0 , 2 5 2 (Tex

. Ci v . Ap p.– El Pas o 1 95 7 , n o wri t ), ci t i n g Temp l et o n v. G i d d i n g s , 1 2 S.W

. 8 5 1 (Tex

. 1 8 8 9 ) an d Ki n g v. S a p p , 2 S.W

. 5 7 3 (Tex

. 1 8 8 6 ). Se e

a l s o So ver ei

gn Ca mp , W

o o d men o f th e W o r ld v. H a l e , 1 2 0 S.W

. 5 3 9, 5 4 0 (Tex

. Ci v. Ap p . 1 9 0 9 ); New Y

o rk Li fe In s . Co . v. Si d

es , 4 6 Tex

. Ci v . App . 2 4 6 ,1 0 1 S.W . 1 1 6 3 (Au st i n1 9 0 7, n o wri t ). TAB # 1 at9 -1 0 , Fu el b er g , 4 1 0 S.W .3 dat5 0 5 -5 0 6

. Ho wev er, th e co u rt at t em

p t ed t o d i s t i n gu i s h Fu el b erg 's ci tat i on o f au th o ri ty by equ at i n g J u d g e M il l ' s m em b ers h i p - o wn ers h ip i n t eres t t o th at o f a ju d g e wh o i s a
cu s t o m er o f a p ub l i c o r reg u l at ed u t i l i ty g o v ern e d by Ru l e 1 8 b (4 )(E). Id

. 3 S ee a l s o TAB #3 at 9 (" J ud g e M i l l s's o n l y p ecu n iary i n t eres t i n the PEC `i s in th e rat es th at h e p ay s , o r s h o u ld h av e p a i d , f o r u t i l i ty serv i ce, whi ch i s i n di s t i n gu i s h ab l e fro m th e i n t eres t o f a p ub li c u t i l i ty cu s t o m er.'" ci ti n g Fu el ber g , 41 0 S.W .3 d at 5 06 , an d Ru l e 1 8 b (d )(4 )(E)). Th e co u rt 's at t em

p t to d i s t i n g u i s h th es e cas es i gn o red th e real izat i o n th at J u d g e M i l ls 's PEC m em

b ers h i p -o wn ers h ip i n t e r e s t co n s t i tu t ed a trad it i o n al l eg al i n t eres t :

3 The court thus engrafted the analy sis applicable to disqualification under Rule 18b(4)(E) into the analy sis applicable for d isqualification under Article V, §11 of the Tex as Constitution, while simultaneously failing to consider the analy sis applic ab l e to disqualification under Rule 18b(d)(4)(" ` financial interest' means ownership of a leg al o r equitable interest, however, small..." ), which it h ad previously c ateg oriz ed a s an automatic recusal provision in Ex parte Ellis , 275 S.W .3d 109, 116 n.2 (Tex . App.–Austin 2008, no pet.). 11o n e s u ffi ci en t t o gran t h i m s t an d i n g i n a cl as s l i t i g at i o n as a PEC cl as s -m em ber. 4 J u d g e M i l l s ad m i t t ed t o h i s o wn ers h i p i n t eres t i n PEC an d equ at ed it t o o wn i n g fi v e
s h ares o f s t o c k o f Fo rd M o t o r Co m p an y . T he co u rt ackn o wl ed g ed J u dg e M i l l 's

o wn ers hi p i n teres t (" PEC m em bers are tech n i cal l y o wn ers " TAB # 1 at 1 0, Fu el b er g , 4 1 0 S.W .3 d at 5 0 6 ), b u t n ev ert h el es s m ai n t ai ns (i n effect ) th at J u d g e M i ll s co u ld p ro p erl y pres i d e o v er a tri al wh ere: (1 ) Fo rd M o t o r Co m pan y was th e "v i ct im " o f th e
o ffen s e; an d (2 ) res t i tu ti o n co u ld b e award ed t o Fo rd M o t o r Co m p an y . Th i s i s cl earl y
co n trary t o the cas es rel i ed up o n b y Fu el b erg , ci t ed ab o ve, an d ju s ti fi es d i s cret i o n ary
rev i ew u nd er Ru l e 6 6 .3

. Th e co u rt 's fai l u re t o r e c o g n i ze an d ad dres s th e l o n g st an d i n g an d cl ear d i s t i n ct i o n b et ween J u d g e Mi l l s 's o wn ers h i p i n t eres t an d h i s co rres p o n d i n g

co gni z a bl e l eg al i n t eres t as o p p o s ed t o g en eral i zed g ri ev an ces — th os e o f g en eral t ax p ay ers an d cu st o m ers , i n cl ud i n g u t i l i t y sub scri b ers wh o h av e n o l eg al s t ak e i n a b u s i n es s b u t st i l l h av e co n cern s ab o u t wh a t t h a t b u s i n es s d o es , al so ju s t i fi es d i s cret i o n ary rev i ew. 5 In d e e d , i t i s wel l es t ab l i s h ed th at g en eral i zed co ncern s are

4 It is undisput ed that J udg e Mills participated as a class-member o f PEC shareholders in litig ation related to this dispute. The interest that g ave the judg e standing to sue as a PEC member i s the same interest that requires d isqualification. The court made no effort to answe r t h e s i m p l e question: if the judg e was a p roper member o f a class in that case — e ven thoug h g e neral tax payer a n d consumer interests would not justify standing — why is that interest suddenly insuffi c i e n t t o mandate disqualification and recusal in the present case?

5 There is a clear difference in kind, not degree, between tax payers with g eneraliz e d interests and member-owners of PEC. Ta x p a y e r s are not e ntitled to participate in c lass litig ation, but PEC 12i n s u ffi ci en t t o creat e s t an d in g an d i n s u ffi ci en t to requi re d is qu al i fi cat i o n an d recu s al

.

Ho we v e r , wh ere th e in teres t is own er s h ip , th e l aw i m

p os es a b ri g ht -l in e ru l e to p res erv e th e i n t eg ri ty

o f th e ju d i ci ary . Th atb ri g h t -l i n e ru l e was cro s s edi nth i s cas e
an d th e co u rt 's fai l u re t o reco g ni ze t h at al s o ju s t i fi es d i s cret i o n ary rev i ew. By equ at i ng J u d g e M i l l s's co n cret e i n t eres t wi th th e no n -co gn i zab l e i n t eres t s
o f the gen eral p ub l i c, th e co u rt creat es a d an g ero u s p re c e d en t th at al so ju s t i fi es d i s cret i o n ary rev i ew. Th ere i s a u n i fy i n g th em e wh en d es cri b in g " a tax p ay er o r u t i l i ty rat ep ay er" (s ee Ru l e 1 8 b (d )(4 )(E))

— n ei th er h a s an y i n t er es t a s i d

e f ro m g en er a l i

z ed gr i eva n ces . So wh en th e Leg i s l atu re p u rp o rt ed t o ex em p t " s i m i l ar i n t eres t [s ] " ( i b i d .), i t was o n l y ex em

p t i n g o th er g en eral i zed g r i e v a n c e s . Th at is en t i rel y d i fferen t fro m J u d g e M i l l s 's co g ni zab l e i n t eres ti nthe p res en tcas e. Ad d it i on al l y , d i scret i o nary rev i ew i s ju s t i fi ed b ecau s e the co u rt 's o pi n i o n wi l l

en t an g l e th e ju d ici ary i n en d l es s d i s p u t es wi th no p ri n ci p l ed b as i s fo r res ol v i n g th em , as i t i g n o re s t h a t t h e s e d is p ut es h av e b een av o id ed fo r d ecad es wi th th e u s e o f a trad i ti o n al b ri g h t -l i n e ru l e: " On ce a p ecu n i ary i n teres t i s s h own t o ex i s t , th e ju d ge i s d i s qu al i fi ed n o m at t er ho w s l i g h t th e i n t eres t ." Fo rd v. GTE Ma r ket Res ., In c. , 1 9 9 7
member/owners are. Tax payers do not have individual accounts set up where monetary awards from a proceeding may be deposited; PEC member/owners do. T ax payers (and ratepayers) are n ot entitled to recei v e ex cess revenues from utility operations; PEC member-owners are. Tex

. Util. Code § 161.059(d) ( describing when " [ t] he cooperative shall p e ri o d ically return revenues" to its " members" ). This is why stock ownership, for e x ample, is categ orically disqualifying — even where the judg e owns but a f

ew shares constituting a n i mp e r c eptible fraction of corporate ownership. Sovereign Camp, W

oodmen of the W

orld v. Hale , 120 S.W . at 540. 13W L 6 4 4 8 9 7 , at * 1 (Tex .Ap p .– Dal l as 19 9 7 , p et
. den i ed ); s ee a l s o Ca mer o n v. Gr een h i l l , 5 8 2 S.W .2 d at7 7 6 ; Pa h l , 3 0 4 S.W .2 dat2 5 2

. b . R e v i ew Sho ul d Be Gra nted To Determ i ne W hether J udg e Mi l l s W a s A "Pa rty I njured" Under Arti cl e 3 0 .0 1 And Hence Subject To Di s qua li fi ca ti o n And/ Or Recus a l

. In i t s s eco n d op i n i o n , th e co u rt h el d th at J u d g e Mi l l s was n o t a " part y i n jured "

u n d er Art i cl e 3 0 .0 1 o f t h e Co d e o f Cri m i n al Pro cedu re an d th u s , h e was n ot d i s qu al i fi ed , an d th at J u d g e Ri ch ard s o n d i d n o t ab u s e h i s d i s cret i o n i n d en y i n g
recu s al

. TAB # 3 at7 -1 6 , Fu el b er g , 2 0 14 W L 3 5 5 8 7 61 at* 3 -* 8. Th e co u rt fai led t o ad dres s an d/ o r d i s co u n ted th e u n co nt es t ed fact s Fu el b erg rel i ed up o n fo r h i s as s ert i o n th at u n der Ar t i c l e 3 0

. 0 1 o f th e Co d e o f Cri m i n al P r o c e d u r e , a s i n t e rp r e t e d b y W h i t e h e a d v . S t a t e , 2 7 3 S

. W. 3 d 2 8 5 ( T e x.Cri m .Ap p.2 0 0 8 ), 6 J u d g e M i l l s was s ub ject t o di s qual i fi cat i o n as an i n jured p art y
an d/o r sub

j ect t o recu s al b ecau s e a reas o n ab l e p ers o n m ig h t do ub t hi s i m p art i al i ty . Th e co u rt i g no red J u d g e M i l l s ' s ad m i s s i o n , at s t atu s h eari n g o n M a rch 1 2, 2 0 1 0 , th at ev ery p ro s pect i v e juro r i n Bl an co Co u n ty is a p o t en t i al vi ct i m b y v i rtu e o f

6 It is not n ecessary that the judg e actually be named in the indictment to be a p arty injured. W hitehead v. State , 273 S.W .3d 285 (Tex .Crim.App.2008). The judg e is disqualified under article 30.01, " [ i] f the evidence shows that he was among the defendant' s v ictims in the criminal transaction or epi s o d e at issue such that a reasonable person would harbor doubt as to his impartiality ." Id

. at 289. " Certainly , a trial court judg e who was a victim of the defendant might be biased ag ainst him or at least appear to be so, and allowing such a judg e to preside over t h e defendant' s trial would threaten the fair administration of justice and bring disrepute upon the judiciary ." Id . at 288. 14b ei n g a m em b er-o wn er o f PEC. Th e co u rt al s o i g n o red th e p u n i s h m en t s t ag e ev i d en c e ad du ced b y th e St at e
co n cern in g th e " v i ct i m im p act " of F u e l b e r g 's cri m es o n th e m em b ers o f PEC (s tres s i n g that th ere was trem en d o u s d am ag e t o th e " tru s t " o f th e m em b ers h i p o f PEC, p o i n t i n g o ut that th e do l l ar am o u n t co u l d n ot be as cer t a i n e d an d th at the " i s s u es in th i s l aws u i twere p arto f th e s h areh o l d er l aws ui t "). Th e co u rt d i s co u n ted th e p ub l i c o p i n i o n po l l

— i n t ro du ced at th e rem an d h eari n g v i a an ex pert wi tn es s

— th at refl ect ed th at o v er 7 0% o f res po n d en t s s ai d i t

wo u l d b e reas o nab l e t o h av e c o n c e rn s ab o ut a ju d g e b ei n g fai r an d u nbi as ed i n a

m at eri al l y i n d i s t i ng u i s h ab le fact p at t ern . Becau s e th e s u rv ey u sed th e wo rd

" co n cern s" as o pp o s ed t o " d o ub t s ," the co u rt h e l d t h at J u dg e Ri ch ard s o n co u ld p ro p erl y d i s co u nt i t
. Su ch so p h i s try i g n o res th e u n co n tro v ert ed en t i ret y o f th e p ub l i c
o p i n i o np o l l

. Th e co u rt al so g av e n o wei g h tt o Fu el b erg 's arg u m en tth atth e St at e's cl o s i n g
co m m en t s at g ui l t/ i n noc e nc e c onstitute d an ad m i s s io n th at J u dg e M i ll s was i n es s en ce
o n e o f th e " v i ct i m s " of t h e m is ap p l i cat i on an dth eft fro m PEC: Ben n i e is th e g en eral m an ag er. " Yo ur s i g n atu re i n d i cat es th at y o u h av e t ak en s t ep s t o en s u re the i n v o i ces accu rat el y refl ect go o ds an d s erv i ces recei v ed b y th e Co o p erat i v e an d n eces s ary t o be m et its o bl i g a t i o n to the m em bers hi p ." No t to the Bo a rd o f Di recto rs , no t to the g enera l m a na g er, to the m em bers hi p. And w ho i s the m em bers hi p? T he m em bers hi p i s the fa rm er i n Bl a nco Co unt y , t h e s to rek eeper i n 15Ma rbl e Fa l l s ,the ho m eo w ner in s uburba n Aus ti n. Thi s i s a g i g a nti c

a rea . Tha t' s w ho se m oney he' s ta k i ng . R ura l , s uburba n peo pl e, urba n peo pl e. He' s s tea l i ng fro m ev ery bo dy

. Fi n al l y , the co u rt al s o d i s co u n t ed J u d g e M i l l s ' s i nv o lv m en t i n th e PEC

s h areh o ld er laws u i t on th e b as i s th at h i s p ecu n iary i nt eres t w a s " i n d i s t i n g u i s h ab l e fro m th e in t eres t o f a p ub l i c u ti li ty cu s to m er." TAB # 3 at 1 5 -1 6 , Fu el b er g , 2 0 1 4 W L 3 5 5 8 7 6 1 at* 8. Th e co u rt th u s i g n o red o r d i s co u n t ed th e k ey fact s b eari n g o n th e cri t i cal i s s u e:
wo u l d a reas o n ab le p ers o n d oub t J u d g e M i l l s ' s i m p art ial i ty kn o wi ng th e fo l l o wi n g fact s? (1 ) Fu el b erg was accu s ed o f m i s ap p ly i n g an d s teal i n g ov er $ 20 0 ,0 0 0 fro m PEC; (2 ) M em b er-o wn ers o f PEC are h arm ed b y t h e m i s ap p l i cat i o n an d/ o r th efto f th e PEC's fu n d s . ( 3 ) J u d g e M i l l s was a m em ber-o wn er o f PEC du ri ng th e t i m e p eri o d Fu el berg al l eg ed l y m i s ap p l i edan ds t o l e PEC fu nd s . (4 ) J u d g e M i l l s was a m em b er o f a gro up th at s u ed Fu el b erg ci v i l l y fo r al l eg ed act s o f m i s co n du ctwh i le Fu el b erg was th e g en eral m an ag er o f PEC, s o m e o f wh i ch act s were i n cl u d edi nFu el b erg 's cri m i n al cas e. (5 ) J u d g e M i l l s wo u l d h av e t o d eci d e th e am o u nt of an y res t i tu t i o n o rd ered i f Fu el b erg was co n v i ct ed , wh ich res t i tu t io nwo u l d b en efi th i s cap i to l acco un t atPEC wh i ch th en t o t al l edap p ro x i m at el y $ 1 , 2 0 0

. Co m m on s en s e s u g g es t s th at a reas o n ab l e p ers o n w ou l d i n d eed d o ub t J u d g e M i l ls 's ab i l i ty t o b e fai r o r i m part i al u n d er th es e ci rcu m s t an ces . Becau s e a reas o n ab l e

16d o ub t is res o l v ed i n fav o r o f recu s al , Ex p ar t e El l is , 2 7 5 S.W .3 d at 1 35 , d i s cret i o n ary

rev i ew s h o u ldb e g ran t ed

. Gro und Fo r Rev i ew No . 3 Fu el berg 's Po i n t O f Erro r No s . 3 t o 6 as s ert ed th at J u dg e M i l l s ab u s ed h i s d i s cret i o n b y o v erru l i n g h is o b j ect i o n s t o the t es t i m o n y of L arry McNei l an d Dav id Du g g i n s co n t ai n i n g W al t er D e m ond' s out- of

- co u rt s tat em en t s . Fu el b erg as s ert ed th at , co n trary t o th e St at e's arg u m en t, th ey were n ot co -co n sp i rat or s t at em en t s u n der Tex as Ru l e o f Ev i d en ce 8 0 1(e)(2 )(E) b ecau s e th ey were n o t m ad e " du ri n g th e c o u r s e " o f

an d " i n f u r theran ce" o f an y co n s pi racy b et ween Dem o nd an d Fu el b erg . Fu el b erg arg u ed th atth ey

were: (1 ) n o t "du ri n g th e co u rs e" o f an y co n s pi racy b ecau s e th ey al l occu rred a f t er an y al l eg ed co n s p iracy h ad term i n at edan d/ o r b een ab an do n ed i n M arch 2 0 0 7, th e en d in g d at e o f th e o ffen s es al l eg ed i n the in d i ct m en t ; 7 an d (2 ) n o t " in fu rth eran ce" o f an y co n s p i racy b ecau s e th ey we re m ere n arrat i v e d ecl a r a t i o n s o f p as t ev en t s an d d i d n ot s o l ici t M cNei l o r Du g gi n s t o d o an yth i n g . Th e co u rt o f ap p eal s ' s eco n d o pi n i o n reject ed th i s p o i n t o f erro r, co n cl u d i n g th at " th e tri al co u rt co u l d h av e reas o n ab l y co n cl u d e d th at Dem o n d 's st at em en t s to Du g g i n s an d McNei l were in th e co u rs e o f an d i n fu rt h eran ce. " T A B # 3 a t 1 9,

7 The date of March 14, 2007, was the date of the last p ay ment by Clark Thomas to W illiam Price and Curtis F uelberg with funds Clark Thomas had obtained f rom PEC pursuant to the alleg ed false billingscheme. 17Fu el b er

g , 2 0 1 4 W L 3 5 5 87 6 1 at* 9 -* 1 0

. D i s c r e t i o n ary rev iew sh o ul d b e g ran t ed becau s e th e co u rt fai l ed t o ackn owl ed ge, ad dres s o r di s ti n g u i s h fact s , arg u m en t s an d au th o ri ti es co n t ai n ed in Fu el b erg 's b ri ef, th ereb y v i o l at i n g th e l et t er an d s p i ri t o f Tex

. R.Ap p .Pro c. 4 7

. 1

. 8 Cri t i cal l y , th e co u rt fai l ed t o ad dres s Fu el b erg 's arg u m en t th at t h e St at e an d J u d g e M il l s h ad t ak en i n co n s is t en t po s i t i o n s reg ard i n g co -co n s p i rat o r st at em en t s du ri n g th e tri al an dt hat th es e i n co n s is t en t p o s i t i o n s refl ect ed J u d g e M i ll s ' ab u s e o f d i s cret i o n . Fu el b erg p o i n ted ou t th at th e St at e t oo k th e p o s it i o n o n the fi rs t da y o f tri a l th at th e co n s p i racy d i d n o t t erm i n at e i n M a r c h 2 0 0 7 , bu t ex t en d ed u n t i l J a n ua ry 2 0 0 8

. J u d g e M i l l s , ex p res si n g di ffi cu l ty i n u n d ers t an d i n g h o w a n y
co n sp i racy co ul d h av e co n ti nu ed pas t th e t e rm i n at i o n o f th e o b j ect i v e o f th e

8 Ru l e 47.1 states that " [ t] he court of appeals must hand down a written opinion

... that addresses every issue raised a nd necessary to disposition of the appeal." This Court has interpreted Rule 47.1 to mean that:

" ...reviewing c ourts oug ht to mention a party' s num b e r o ne argument and ex plain why it d oes n ot h av e the persuasive force the party thinks it does....This p r actice maintains the integ rity

of the sy stem and improves appellate practice....I n this way , Rule 47.1 sug g ests t h at the courts of appeals should " show their work," much as we had to when learning

longdivision in elementary school...." Sims v. State , 9 9 S.W .3d 600, 603-604 (Tex .Crim.App. 2003). This rule also requires the court of appeals to address every issue raised, A rmstrong v. S tate , 845 S.W .2d 909, 9 10 (Tex .Crim.App. 1993), to consider all relevant evidence impacting the losing party' s claim, King v. State , 848 S.W .2d 142, 143 (Tex .Crim.App. 1993), and to disting uish the primary authority r e l i e d o n b y the losing party
. Thomason v. State , 892 S.W .2d 8, 10 n. 4 (Tex .Crim.App. 1994). 18co n sp i racy i n M arch 2 0 0 7 , ex cl u d ed th at pro p os e d t es t i m o n y . 9 Sub sequ en t l y , th e

St at e to o k th e p o s it i o n on th e l a s t da y o f its ca se-i n-chi ef th at th e co n s p i racy d i d n ot t erm i n at e u n t i l Decem ber 1 5 , 2 0 0 8

. J u d g e M i l l s twi ce w arn ed th e St at e th at i t co u ld b e creat i n g rev ers i b l e erro r, b ut n ev ert h el es s al lo wed th e ad m i s s i o n o f Dem o n d 's o u t
o f-co u rts t at em en t s th ro u g h M cNei l an d Du g g i n s i nth ree s ep arat e t im e fram es : (1 ) No v em b er/ Decem

b er 2 0 0 7 ; (2 ) Feb ru ary 2 0 0 8; an d (3 ) Decem b er 20 0 8. Th e co u rt o f ap p eal s d eci d e d t h i s i s s ue w i tho u t d i s cu ss i ng cas es Fu el b erg ci t ed fro m th i s Co u rt

an d th e Sup rem e Co u rt , al l o f wh i ch s upp o rt Fu el b erg 's p o s i t i o n th at th e st at em en t s
were n o t m ad e du ri n g th e co u rs e o f th e co n s p i racy b ecau se t here was n o s ub s i d i ary ag reem en tt o co n ceal

. 1 0

9 T his related to the State' s e f f o r t t o i nt r o d u c e D emond' s J anuary 2008 out-of-court statements to W illiam Price. J udg e Mills sustained F uelberg ' s objections.

1 0 F uelberg argued that the Tex as Rules of Evidence, a n d specifically the co-conspirator hearsay ex emp t i on, mirror the F ederal Rules of Evidence. In the advisory c ommittee' s notes to F ederal Rule of Evidence 801(d)(2)(E), t h e d rafters stated their intent that the ex emption be " consistent with the position o f the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been a chieved." F ed

. R

. Ev i d

. 8 01(d)(2)(E) advisory committee’s note (citing W ong Sun v. United States , 371 U.S. 4 71 (1963); Krulewitch v. United States , 336 U.S. 440 (1949)). Fu elberg relied on Krulewitch , in which the Supreme Court rejected the g overnment' s argument that statements made after the main objective of the conspiracy had been achieved were nonetheless admissible i f ma d e t o conceal the crim e . See Krulewitch 336 U.S. at 442-443. The Supreme Court later explained and reaffirmed its holding in Krulewitch , stating : The crucial t e a c h i n g o f Krulewitch is that a fter the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment. As was there stated, all o w i n g such a conspiracy to conceal to be 19Di s cret i o n ary rev i ew s h o u l d al s o b e g ran t ed becau s e th e c o u r t al s o

m i s co n stru ed au tho ri t i es ci t ed i n i t s o p i n io n . T he co u rt rel i ed up on F o rma n v. Un i t ed Sta t es , 3 6 1 U.S. 4 1 6 , 4 2 3 -2 4 (1 9 6 0 ), o verru l ed i n p art o n o th er g ro un d s , Bu rk s v. Un i t ed Sta t es , 4 3 7 U.S. 1 , 1 7 -1 8 (1 9 7 8), s ee TAB # 3 at 1 8

. Ho wev er, rel i an ce o n Fo rm an is i n ap pro p ri at e b ecau s e th ere, un l i k e th e p res en t cas e, th e i n d i ct m en t al l eg ed

a co n t i nu i n g co n s p i racy fro m 1 9 4 2 t o 1 9 5 3 t o ev ad e th e i n co m e t ax es o f Sei jas an d h i s wi fe fo r th e y ears 1 9 4 2 t o 1 9 4 5 an d th e co n t i nu i n g co n ceal m en t o f th ei r " h o l d o ut " i n co m e u n t i l 19 5 3 as al l eg ed b y o v er t a c t s i n th e i n di ct m en t
. Thu s , an ex p res s
co n sp i racy t o co n ceal was a ll eg ed i n th e in d ict m en t , an d th ere was n o i s su e as to wh et h er a s ub s i d i ary co n sp i racy t o co n ceal th e m ai n co n s p i racy co u l d b e i m p l i ed f r o m c i r cu m s t an t i al ev i d en ce. Fo rma n d oes no t s upp o rt th e p ro po s it i on th at an i m p l i ed co n s p i racy t o c o n c e al can b e d is cern ed fro m th e ev i d en ce p res en t ed in

inferred or implied f

rom mere overt acts of concealm e n t wo u l d result in a g reat widening of the scope of conspiracy prosecutions, since it would ex tend the life of a c onspiracy indefinitely

. Acts of covering up, even though done in the contex t of a mutually understood n eed for secrecy, cannot themselves c onstitute proof that concealment o f the crime after its commission was p a rt o f the initial agreement among the conspirators. F o r every conspiracy is by its very nature secret: a case can hardly be supposed where men concert tog e ther for c rime and advertise their purpose to the world. A n d ag ain, every conspiracy will inevitably be followed by actions taken to cover the conspirators' traces. Sanctioning the G overnment’s theory would for all practical purposes wipe out the statute of limitations i n c o n spiracy cases, as well as e x tend indefinitely the time w ithin which hearsay declarations will bind coconspirators. Grunewald v. U

nite d States , 353 U.S. 391, 401-02 (1957). Review should be g ranted because the court completely ig nored Grunewald and F uelberg ' s arguments in reliance upon it. 20Fu el b erg 's cas e, an d in deed , th ere w as ab s o l ut el y no ev id en ce o f a n y a g reem en t

b et ween Dem on d an d Fu el b erg t o co n ceal an ythi n g o n ce th e l as t paym en t w as m ad e t o Cu rt i s Fu el b erg an dW i l li am Pri ce i nM arch 2 00 7

. T h e c o u rt 's rel i an ce o n Un i t ed Sta tes v. M a n n , 1 61 F.3 d 8 4 0 , 8 5 7 ( 5 t h C i r . 1 9 9 8 ), s ee TAB # 3 at 1 8

- 1 9 , i s al s o m i s p l aced

. Ma n n d eal t wi th th e s tatu t e o f l i m i tat i on s , an d s p eci fi cal l y r e l i e d u p o n Gr u n ewa ld , no t i n g th at " aft er th e cen tral cri m i n al p urp o s es o f a co n s pi racy h av e b een at t ai n ed , a s ub s i d i ary co n sp i racy t o
c o n c eal m ay n o t b e i m

p l i ed fro m ci rcu m s t an t i al ev i d en ce s h o wi n g m erel y th a t t h e
co n sp i racy was k ep t a s ecret an d th at th e co n s p i rat o rs t o o k care t o co v er up th ei r cri m e i n o rd er to es cap e d et ect i o n an d p u n i s h m en t ." 1 6 1 F.3 d at 8 5 8 (qu o t i n g Gr u newa ld

). Ma nn n o t ed th at " Gr u n ewa ld re c o g n i z e d , h o wev er, th at `a v i t al d i s t i n ct i o n m

u s t b e m ad e b et ween act s o f co n ceal m en t d o ne i n fu rt h e r an ce o f th e

ma i n cri m i n al o bject i v es o f th e co n s p i racy , an d act s o f co n ceal m en t do n e aft er th es e
cen tral o b

ject iv es h av e b een at t ai n t ed .' " I d

. at 8 5 9

. In Fu el b erg 's cas e, th e m ai n
o b ject i ve o f th e i n d i ct m en t o ffe n s e s w a s at t ai n ed i n M arch 2 0 0 7 an d th ere was n o
ev i d en ce o f ac t s o f c o n c eal m en t d o n e aft er th e cen tral o bject i v e h ad b een at t ai n ed fro m wh i ch a s ubs i di ary ag reem en t t o co n ceal co u ld be i m p l i ed

. In d eed , u n l i k e Ma n n
an d Fo rm a n , b ot h o f wh i ch i n v ol v ed i nd i ct m en t s al l eg i n g co n t i nu i n g co ns p iraci es to

ev ad e/ d efrau d the IRS l o n g aft er t h e m ai no bject i v es h adb een o b t ai n ed , Fu el b erg 's

21i n d i ct m en t al l eg ed s ch em es t o m i s ap p l y an d s t eal th at en ded o n M arch 1 3 , 2 0 0 7 , an d

th u s , th e co u rth as fai l edt o n o te Gr u n ewa ld's " v i t al d i s t i n ct i o n" an ds an ct io n ed th e ad m i s s i b i l i ty of p u rp o r t e d i n d i v i du al act s o f co n ceal m en t d o ne as m u ch as twen ty
m o nt h s aft er t h e cen tral o b ject i v es were at t ai ned

. Im p o rt an t l y , th e co u rt ign o r ed Fu el berg 's as s ert i o n th at Dem o nd 's st at em en t s t o h i s l aw p art ners i n th e th ree d i s t i n ct t i m e fram es were n o t " i n fu rt h eran ce" o f an y
co n sp i racy beca us e they w ere m ere na rra ti v e decl a ra ti o ns o f pa s t ev ents a nd di d

no t s o l ici t McNei l or Dug g i ns to do a n y t h i n g . 1 1 Th e co u rt 's co n cl us i o n

— al b ei t wi th o u t an y d i s cu s s i o n o f Fu el b erg 's as s ert i on th at Dem o n d 's s tat em en t s t o h i s l aw p art n ers w ere n o t i n " i n fu rth eran ce"

— al s o co n fl i ct s w i th th is Co u rt 's o p i n i o n in Byrd v. Sta t e , 1 87 S.W .3 d 4 3 6 , 4 4 3 ( T e x .Cri m .Ap p . 2 0 0 5). Byrd h el d th at Ru l e 8 0 1 (e)(2 )(E) was a v ery n arro w h ears ay ex em p t i o n a n d th at s t at em en t s fo u n d `t o fu rther' th e co n sp i racy were s t at em en t s that s et i n m o t i o n tran s act i o ns that were a i n t eg ral p art o f th e co mm o n o bject i v e o f th e co n s p i racy , wh ereas s t at em en t s fo u n d

n o tt o fu rth er t he co n s pi racywere s t at em en t s th at d idn o t ad van ce the o b j ect i v es o f

11 D e m o n d ' s o ut
- o f-court statements to McNeil and Dug g ins: (1) ex plained F uelberg ' s a l l e g e d actions and statements in a w a y so that it would not raise suspicion among the other attorney s at Clark Thomas; ( 2) ex p lained Price and Curtis Fu e l b e rg's r oles for PEC; and (3) claimed that F uelberg h a d P E C B o ard a pproval for his actions. Essentially , D emond indicated that every thing was normal with the PEC account and blame-shifted in c laiming that F uelberg had told him that he had PEC board approval ( meaning that either there was PEC b oard approval or that F uelberg lied). Such blame-shifting statements are unreliable and i n a d m i ssible under Mendez v. State , 56 S.W .3d 880 (Tex

. App.–Austin 2001, pet. ref' d ), cited by F uelberg and not addressed by the court. 22th e co n s pi racy. F u r t h erm o re, th e `i n fu rth eran ce' requ irem en t draws a d i st i n ct i o n

b et ween fu tu re co n ceal m en t an d c onc e a lm e nt onc e t h e co n s p i racy has t erm i n at ed

. See Kr u l ewi tch v. Un i t ed Sta t es , 3 3 6 U.S.4 4 0 (1 9 4 9 ); Byrd , 1 8 7 S.W .3 d at 4 4 2 -4 4 3 (qu o ti n g Gu id

ry v. Sta t e , 9 S.W .3 d 1 3 3 , 1 4 7 -4 8 (Tex

. Cri m .Ap p . 1 99 9 )). A s t at em en t

m ad e du ri n g th e pen d en cy o f a co n s pi racy "m u s t al s o requi re o r s u g g es t act i on o n th e p art o f ei th er p art y o r an y ot h er p ers o n , [o r] p ro v i d e i n fo rm at i o n `th at [i s ] n eces sary ' t o act i n an y w ay i n fu rth eran ce o f th e co n s p iracy ." S p eer v. Sta t e , 8 9 0 S.W .2 d 8 7 , 9 4 (Tex

. Ap p.– Ho u s t o n [1 s t Di s t.] 1 9 9 4 , p et
. ref’ d). T h erefo re, a s t at em en t can n o t b e `i n fu rtheran ce' o f a co n s pi racy i f i t d o es n ot ad v an ce th e co n s p i r a cy . Al th o u g h n ot d i s cu s s ed b y th e co u rt i n d i s p o s i n g o f Fu el b erg 's " i n f u rt heran ce" arg u m en t , Dem o n d 's s t at em en t s t o M cNei l an d Du g g i n s d i d n o t ad v an ce th e al l eg ed co n s p i racy t o m is ap p l y

/ s t eal m o n ey fro m PEC t o p ay Curt i s Fu el b erg o r W i ll i am Pri ce. Th ey
were n arrat i v e d ecl arat i o n s o f wh at Dem o n d cl ai m ed [Fu el b erg ] h ad t o l d h i m ab o ut PEC b o ard ap p ro v al an d h o w t o b il l PEC. Dem o n d 's s tat e m e n t s t o M cNei l an d Du g g i n s i n n o way co u l d be i n t erp ret ed as Dem o n d (l et al on e Fu el b erg ) try in g t o g et

o th ers (M cNei l o r Du g g i n s ) t o jo i n o r as s i s t i n th e co n sp i racy (es p eci al l y s i n ce an y
c o n s p i r a cy h ad t erm i n at ed an d/ o r was ab an d o n ed ei g h t t o twen ty m o n th s p ri o r t o Dem o n d 's s t at em en t s t o M cNei l an d Du g g i ns ). Dem o n d ’ s s t at em en ts to M cNei l an d Du g g i n s were st at em en t s m ad e t o h i s l aw p art n ers ab ou t pas t act i o n s reg ard i n g PEC,

23n o t fu tu re act i o n s , an d it was u n co n tro v ert ed t h a t D e m o n d d i d n o t as k M cNei l o r

Du g g i n s t o t ak e an y

act i o n wh at s o ev er. Di s cret i o n ary

rev i ew i s u n qu es t i o n ab l y warran t ed

. CONCLUSI ON AND PRAYER W HEREFORE, PREM ISES CONSIDERED, Fu el berg res p ect fu l l y p ray s th at th i s Co u rt g ran t d is cret i on ary rev i ew o f al l th ree g ro u n d s fo r rev i ew an d rev ers e th e
o p i n i o no f th e co u rto f ap p eal s . Res p ect fu l ly s ub m i t t ed , / s /Dav i d L. Bo t sfo rd St at e Bar No

. 02687950 CERTIFICATE OF COMPLIANCE I hereby c ertif

y that excluding the portions of this petition exem pted by T ex.R.App.P. Rule 9.4(i)(1), this petition contains 4,495 w ords as calculated by W ord Perf ect 5.1, which I used to draf

t this petition. /s/ David L. Botsf ord CERTIFICATE OF SERVICE I c ertif y that a true and correct c opy o f the f orego i n g h a s been em ailed to Mr. Bill Davis, Assistant Solicitor General, on the day it was electronically f iled with this Court, and that a copy was m ailed to the S tate Prosecuting Attorney , P.O. Box 12405, C a pital Station, Austin, Texas, 78711, on the day it was electronically

f iled with the Court. /s/ David L. Botsf

ord

24TAB #1 August 27, 2013 Opinion Of The Court Of Appeals-----------------------

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO.03-11-00317-CR

Bennie Fuelberg, Appellant
v. The State of Texas, Appellee

FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT NO. CROI015, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING

OPINION

A jury found appellant Bennie Fuelberg guilty of misapplication of fiduciary property, theft, and money laundering. See Tex. Penal Code §§ 31.03, 32.45, 34.02. The jury assessed punishment at ten years' imprisonment for each offense, but recommended that the
sentences be suspended and Fuelberg be placed on community supervision. In seven appellate issues, Fuelberg asserts that (1) the trial judge, the Honorable Daniel H. Mills, was disqualified from the case; (2) the assigned judge abused his discretion in failing to recuse Judge Mills; (3) the trial
court abused its discretion in admitting testimony of two of the State's witnesses; and (4) the trial
court erred in" its determination of restitution. We will abate and remand this appeal.

BACKGROUND The Pedemales Electric Cooperative (PEC) is a member-owned utility that provides electrical service to twenty-four counties in Central Texas. See Tex. Util. Code §§ 161.001-.254(describing formation and operation ofutility cooperatives). Any resident in the PEC's service area is required to join the PEC in order to receive electric service, and as of 2008 the PEC had over 225,000 members. As a utility cooperative, the PEC operates on a n.on-profit basis, meaning that the rates, fees, and other charges paid by PEC members can be spent only on reasonable business expenses, and any excess revenue must be refunded to members. See id. § 161.059. Fuelberg was the general manager of the PEC from 1976 until his retirement in February of 2008, and was given broad authority to oversee its day-to-dayoperations. The State alleged that between November 1996 and March 2007, Fuelberg conspired with Walter Demond
to funnel over $200,000 in PEC funds through Demond's law firm to Fuelberg's brother and the

son of a former PEC board member. The State charged Fuelberg and Demond with first-degree misapplication of fiduciary property and theft and second-degree money laundering. See Tex. Penal Code §§ 31.03, 32.45, 34.02. Prior to trial, Fuelberg and Demond filed motions to disqualify or, alternatively,

recuse Judge Mills from their respective cases. The motions asserted that as a PEC member, Judge Mills had a financial interest in the outcome of the trial and was a putative victim of the alleged offenses. Following a brief discussion with the parties, Judge Mills declined to voluntarily

recuse himself and referred the motions to the presiding judge, who assigned the motions to the Honorable Bert Richardson. See Tex. R. Civ. P. 18a (prescribing procedure for resolving motions
to disqualify and recuse).t Judge Richardson conducted a hearing after which he denied Fuelberg' s

1 Although Fuelberg and Demond were tried separately, they filed identical motions to disqualify and recuse Judge Mills, and Judge Richardson conducted a single hearing for both Fuelberg's and Demond's motions. 2and Demond's motions. Fuelberg and Demond filed petitions for writ of mandamus, seeking orders from this Court directing Judge Richardson to reverse his rulings. This Court denied the mandamus petitions. See In re Fuelberg, No. 03-10-00027-CV, 2010 Tex. App. LEXIS 1256, at *2-4 (Tex. App.-Austin Feb. 19,2010, orig. proceeding [leave denied]) (mem. op.). After a nine-day trial, the jury found Fuelberg guilty of third-degree misapplication offiduciary property, theft, and money-laundering, indicating that the value of the property misapplied, stolen, and laundered was between $20,000 and $100,000. See Tex. Penal Code §§ 31.03(e)(5), 32.45(c)(5), 34.02(e)(2). Following a punishment hearing, the jury assessed punishment at ten years' imprisonment for each offense, but recommended that the sentence be suspended and Fuelberg be placed on community supervision. The trial court rendered a judgment consistent with the jury's verdict, and also ordered Fuelberg to pay $126,000 in restitution. This appeal followed.

DISCUSSION Fuelberg raises seven issues on appeal, which we group into the following four complaints. First, Fuelberg asserts that Judge Mills was disqualified from presiding over his trial, and therefore his trial and conviction are void. Second, Fuelberg claims that Judge Richardson abused his discretion in failing to recuse Judge Mills from Fuelberg's trial. Third, Fuelberg argues that the trial court abused its discretion in admitting the testimony of two witnesses because their testimonies were hearsay and violated the confrontation clause. Finally, Fuelberg claims that the trial court erred in ordering restitution above the amount reflected in the jury's verdict. We will address Fuelberg's first two appellate issues in turn and need not reach his third and fourth issues,

as explained below. 3Disqualification In his flrst issue on appeal, Fuelberg asserts that Judge Mills was disqualifled from presiding over his trial. See Tex. Const. art. V, § 11. Speciflcally, Fuelberg claims that Judge Mills

was disqualifled because, as a PEC member, he {l} had a pecuniary interest in the subject matter in controversy and (2) had a personal interest in the case because he was putative victim of the alleged offenses. See id.; Tex. R. Civ. P. lSb(a}(l} (defming disqualifying flnancial interest};2 Tex. Code Crim. Proc. art. 30.01 (defIning "injured party" as disqualifying interest). According to Fuelberg, Judge Mills lacked authority to hear this case, and thus the underlying proceedings are void. See TescoAm.,Inc. v. Strong Indus.,Inc. , 221 S.W.3d550,555 (Tex. 2006)(noting that iftrial judge is disqualifled, any orders or judgments issued by court are ''void and without effect"). "Since Texas became a state in lS45, judicial disqualiflcation has always been a matter of constitutional dimension." Tesco Am., Inc., 221 S.W.3d at 551. The Texas Constitution provides that "[ n]o judge shall sit in any case wherein the judge may be interested

.... " Tex. Const.
art. V, § 11. Rule lSb(a} of the Rules of Civil Procedure and article 30.01 ofthe Code of Criminal Procedure clarify when a judge is disqualifled, but these statutes "expound rather than expand the Constitution." Tesco Am., Inc., 221 S. W.3d at 553. Therefore, regardless ofwhetherdisqualiflcation is discussed in terms of Rule lSb(a} or article 30.01, disqualiflcation is a constitutional issue in this

2 Although this is a criminal case, it is well established that the standards for disqualiflcation and recusal of a trial judge provided for in the Rules of Civil Procedure are applicable in the criminal context "absent an explicit or implicit legislative intent indicating otherwise." Gaal v. State, 332 S.W.3d 448,452-53 (Tex. Crim. App. 2011) (applying rule lSb of Rules of Civil Procedure to disqualiflcation and recusal issue in criminal case) (internal quotations omitted). We cite to the current versions of the Rules of Civil Procedure for convenience because there have been no intervening amendments that are material to our disposition of this appeal. 4case. See id.; see also Kilgarlin & Bruch, Disqualification and Recusal of Judges, 17 St. Mary's L.J. 599,602 (1986) (discussing "constitutional statutory provisions" that embody article V, section 11 of Texas Constitution). A disqualified judge may perform a ministerial act, but "is prohibited from performing any and all acts that call for the exercise of judicial discretion." Koll v. State, 157 S.W.2d 377,379 (Tex. Crim. App. 1941 ) (concluding disqualified judge's order transferring venue was void). Thus any discretionary orders or judgments by a disqualified judge are void. See Whitehead v. State, 273 S.W.3d 285,289 (Tex. Crim. App. 2008) (noting that if trial judge is disqualified under article 30.01 of Code of Criminal Procedure, conviction is nullity). Therefore, ifJudge Mills was disqualified from Fuelberg's trial, Fuelberg's judgment of conviction and all of Judge Mills's discretionary rulings would be void and this case would be remanded for new proceedings.

Standard of review Whether ajudge is disqualified is a question oflaw that we generally review de novo. However, the State asserts that this Court's prior mandamus opinion-in which we rejected Fuelberg's disqualification and recusal issues-is the law ofthe case. See In re Fuelberg, 2010 Tex. App. LEXIS 1256, at *2-4; see also Texas Parks & Wildlife Dep 't v. Dearing, 240 S.W.3d 330, 338 (Tex. App.-Austin 2007, pet. denied) (explaining law-of-the-case doctrine). "Under the law-ofthe-case doctrine, a court of appeals is ordinarily bound by its initial decision on a question oflaw if there is a subsequent appeal in the same case." Dearing, 240 S.W.3d at 348. If a prior legal conclusion is the law of the case, that conclusion will not be disturbed unless it was "clearly erroneous." Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).
5The law-of-the-case doctrine is prudential rather than statutory, and the decision
to revisit a previous holding is generally left to the discretion of the court under the particular circumstances of a given case. City of Houston v. Jackson, 192 S.W.3d 764, 769 (Tex. 2006). When a court denies mandamus without any comment on the merits, the mandamus is not the law of the case. Perry Homes v. Cull, 258 S.W.3d 580,586 (Tex. 2008). Some courts have held that the law-of-the-case doctrine may apply when the court's denial of mandamus addresses the merits. See, e.g.,In re B. G.D., 351 S. W.3d 131, 141 (Tex. App.-Fort Worth 2011, no pet.). This Court has

never extended the doctrine to a mandamus ruling. Without foreclosing the possibility of our doing

so in the future, for purposes of this appeal we will not treat our previous denial of mandamus as law of the case, and we will address the disqualification issue de novo. Pecuniary interest Fuelberg asserts that Judge Mills was disqualified from this case, in part, because he had a pecuniary interest in the subject-matter in controversy. See Tex. R. Civ. P. 18b(a)(2). Specifically, Fuelberg claims that as a PEC Member, Judge Mills stood to potentially gain from any restitution he ordered. This issue was the primary focus of Fuel berg's disqualification motion, Judge Richardson's findings of fact and conclusions oflaw, and our opinion denying mandamus. See In re Fuelberg, 2010 Tex. App. LEXIS 1256, at *2-4. Furthermore, it presents an issue of first impression in this Court: Does a judge's participation in a member-owned utility cooperative disqualify him from hearing cases that might affect the cooperative financially? Under the facts of this case, we answer no.

6"It is a settled principle of law that the interest which disqualifies a judge is that interest, however small, which rests upon a direct pecuniary or personal interest in the result of the case." Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex. 1979). Thus, if a judge has a direct fmancial interest in the outcome of the case, such as stock ownership in a company who is a party to litigation, thejudge is disqualified. See Williams v. City Nat 'I Bank of Quanah , 27 S.W. 147, 148 (Tex. Civ. App.-Fort Worth 1894, no writ) (concluding that ten shares in bank that was party to suit disqualified trial judge). However, ajudge's interest which is "merely indirect, incidental, remote, contingent,

or possible" or based on his status as "a resident or taxpayer" in which he "will be no more affected by any decision which may be made in the case than every other citizen of the county who is a taxpayer" is not disqualifying. Elliot v. Scott, 25 S.W.2d 150, 152 (Tex. 1930). For this reason, a judge is not disqualified from hearing a case that may affect a public utility or regulated utility of which he is a customer. See Tex. R. Civ. P. 18b(d)(4)(E) ("[A]n interest as a taxpayer or utility ratepayer, or any similar interest, is not a 'financial interest' unless the outcome of the proceeding could substantially affect the liability of the judge

... more than other judges.") (emphasis added); Hidalgo Cnty. Water Imp. Dist. No. 2v. Blalock, 301 S.W.2d593, 596 (Tex. 1957); City of Houston

v. Houston Lighting & Power Co., 530 S.W.2d 866,868 (Tex. Civ. App.-Houston [14th Dist.] 1975, writrefdn.r.e.). Thus, it is the nature of the judge's fmancial interest, rather than its potential value, that determines whether the interest is disqualifying.3

3 To the extent our prior mandamus opinion could be read to conclude that Judge Mills's fmancial interest was not disqualifying because it was de minimis, that conclusion would be incorrect. See In re Fuelberg, No. 03-1O-00027-CV, 2010 Tex. App. LEXIS 1256, at *2-4 (Tex. App.-Austin Feb. 19,2010, orig. proceeding [leave denied]) (mem. op.). 7By statute, an electric cooperative like the PEC "shall operate without profit to its members." See Tex. Util. Code § 161.059(a) (emphasis added). The "rates, fees, rents, and other charges" for a co-op's services must be used to fIrst pay for prudent business expenses, including the repayment of loans, and then to create reserves. Id. § 161.059(b)-(c). A utility cooperative "must periodically return revenues not required for those purposes to its members in proportion to that amount of business done with each member"-in the form of a cash payment, abatement of charges, or a general rate reduction--effectively reimbursing members for charges that they should
not have paid. See id. § 161.059(d)(emphasis added). This statutory framework is consistent with the testimony of the PEC' s Chief Financial Offtcer, Michael Vollmer, at the disqualification and recusal hearing concerning how the PEC calculates reimbursements to its members. Vollmer explained that excess funds, which he called "margins," are calculated annually and then allocated to each member's "capital credit account" based on the "relative amount of electricity that [the member] purchased during the previous year." From there, the PEC board of directors can "distribute" portions of each member's capital credit account to the member. Vollmer emphasized that margins should not be called profIts and distributions should not be called dividends, indicating that they are distinguishable, at least from

an accounting standpoint. At the time of the recusal hearing, Judge Mills had approximately $1,200 in his PEC capital credit account. Judge Mills did not receive a distribution from this account unti12007-27 years after he first became a PEC member-and that distribution was for approximately $18. Vollmer's testimony indicated that the PEC would be making more distributions in the near future.

8Furthennore, Vollmer testified that any restitution that was ordered in this case could increase the PEC's margin, thereby increasing the amount allocated to each member's capital credit account for that year, which in turn could lead to a larger distribution in the future. Fuelberg asserts that the potential distribution that Judge Mills could receive from ordering restitution is a direct, disqualifying pecuniary interest. Fuelberg relies primarily on Pahl v. Whitt, 304 S.W.2d 250,252 (Tex. Civ. App.-El Paso 1957, no writ), which appears to be the only Texas case that directly addresses whether a judge's membership in a utility cooperative is disqualifying. The court in Pahl concluded that the interest was disqualifying because "if a Cooperative makes money, its members may receive dividends in the fonn of money or lowered
rates for electricity, thus such members are in very much the same situation as stockholders in a corporation." Id. To the extentPahl can be read to mean that distributions by all utility cooperatives

are like dividends from a private corporation, we respectfully disagree. See 304 S.W.2d at 252. Each case must be reviewed on its own facts with regard to the character of the cooperative's distributions to its members. Given the statutory framework and real-world application at PEC, as outlined above, the PEC's distributions to its members-whether in the fonn of cash distributions or reductions in future rates-function as a refund to members for previous overcharges. PEC members' capital credit accounts operate as an accounting tool to keep track ofthese overcharges and in no way equate to an ownership interest in the PEC. Therefore, the distributions from the capital credit accounts are

more akin to a tax rebate or rate reduction than a dividend paid based on a company's profits. This interpretation is consistent with section 161.059( a) of the Utility Code, which specifically requires

9that an electric cooperative must operate "without profit to its members." Given that Judge Mills automatically became a member ofthe PEC when he purchased his home and electrical service, his interest in obtaining lower electricity rates from the PEC in these ways is indistinguishable from that ofajudge who is a customer ofa public or regulated utility.4 See Tex. R. Civ. P. 18b(d)(4)(E); Hidalgo Cnty., 301 S.W.2d at 596; City of Houston, 530 S.W.2d at 868. The record indicates that Judge Mills has no other fmancial interest in the PEC. Although PEC members are technically owners, their ownership is nontransferable-even to subsequent property owners-and terminates upon their withdrawal or death. Vollmer testified that if the PEC dissolved, members could be entitled to the amounts in their capital credit accounts, but there is no indication that they would be entitled to any other distribution. Therefore, the only financial interest that Judge Mills has in the PEC is in the rates that he pays, or should have paid, for utility service, which is indistinguishable from the interest of a public utility customer. See Tex. R. Civ. P. 18b(d)(4)(E). Finally, as the State correctly notes, this is a criminal proceeding, and neither the PEC

nor its members are actually parties to this case. Therefore, Judge Mills's potential fmancial interest

4 Fuelberg also asserts that Judge Mills's interest in the PEC is equivalent to that of a policyholder ofa mutual insurance company, which has been held to be disqualifying. See Sovereign Camp v. Hale, 120 S.W.539, 540 (Tex. 1909); New York Life Ins. Co. v. Sides, 46 Tex. Civ. App. 246, 247 (Tex. 1907). However, the judges in Hale and Sides had a pecuniary interest in those cases not because they technically owned a portion of the insurance company, but because any fmancial harm to the insurance company would have endangered the pay-outs of their individual life insurance policies. See Sovereign Camp, 120 S.W. at 540; New York Life Ins. Co., 46 Tex. Civ. App. at 247; see also Tex. R. Civ. P. 18b(d)(4)(C) ("[l1he proprietary interest of a policyholder in a mutual insurance company ... is a 'financial interest' in the organization only if the outcome of the proceeding could substantially affect the value of the interest. "). Thus, thejudges' pecuniary interest in the mutual insurance cases are distinguishable from Judge Mills's interest in this case because Judge Mills does not have a distinct future payout that could be endangered by his decision. 10Q

is even more attenuated than it would be in a civil case because he stood to gain only ifFuelberg was convicted; Judge Mills, in his discretion, ordered Fuelberg 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. We have not found any Texas cases that address whether a trial judge's potential benefit from criminal restitution can be disqualifying, and the federal cases on the issue are split. 5 See United States v. Rogers, 119 F.3d 1377, 1383 (9th Cir. 1997) (noting circuit split). Furthermore, those federal courts which have found that this type of interest can be disqualifying noted that only a judge with a "substantial interest" in the corporate victim ofthe crime should disqualify himself. See United States v. Nobel, 696 F.2d 231,234--35 (3d Cir. 1982). The
court in Nobel explained that a judge who owned stock in the "corporate victim of the crimes does
not have a 'fmancial interest in the subject matter in controversy,'" but for sake of appearance may nonetheless be required to be disqualified. See id. Given that the Texas rules governing fmancial interests do not require disqualification for the sake of appearances, the federal court's reasoning in Nobel appears to be more in line with Texas's recusal standards, and thus has little if any applicability to disqualification under Texas law. See supra n.5. In addition, although the court in Nobel did not define what "substantial interest" means, there is nothing in the record that could

5 The federal rule for disqualification "includes disqualification for the appearance of impropriety," which is addressed in the Texas rules for recusal. In re Wilhite, 298 S.W.3d 754, 760-61 (Tex. App.-Houston [1st Dist.] 2009, orig. proceeding [mand. denied]). "Because federal cases discussing recusal and disqualification often use the terms interchangeably, those cases are of limited guidance in interpreting Texas's rule for disqualification that does not include the appearance of impropriety as a basis for disqualification." Id. 11arguably support a claim that Judge Mills has a substantial financial interest in either the PEC or the outcome ofthis case. See 696 F.2d at 234-35 (concluding that judge's impartiality might reasonably be questioned when he owned between $10,000 and $15,000 in victim's corporate stock). Therefore, we conclude that Judge Mills did not have a disqualifying pecuniary interest in the subject matter ofthis case. Judge Richardson did not err in denying Fuelberg' s motion to disqualify Judge Mills on this basis. We overrule Fuelberg's fITst appellate issue with respect to Judge Mills's pecuniary interest in this case. Injured Party Fuelberg also asserts that Judge Mills was disqualified from this case as a putative victim ofthe offenses alleged. Specifically, Fuelberg claims that as a PEC member, Judge Mills was
a "party injured" within the meaning of article 30.01 ofthe Code of Criminal Procedure. Therefore, according to Fuelberg, Judge Mills has a disqualifying personal interest in the subject matter at issue. Article 30.01 states that "[ n]o judge or justice ofthe peace shall sit in any case where he may be the party injured

.... " The statute does not defme who qualifies as "the injured party" in a criminal case, although it would presumably always include the victim named in the indictment. See Exparte Ambrose, 24 S. W. 291, 291-92 (Tex. Crim. App. 1893) (concluding that county judge

was disqualified from presiding over trial for assault where he was victim of alleged assault); but see Lane v. State, 634 S.W.2d 65,66 (Tex. App.-Fort Worth 1982, no pet.) (concluding that "judge presiding at a trial in which perjury is committed does not thereby become an 'injured party'" in subsequent perjury trial). In this case, however, the PEC-Dot the PEC members generally nor Judge Mills specifically-is the victim named in the indictment.
12Whether the judge was named as the victim in the indictment, however, does not necessarily end the inquiry. The court of criminal appeals recently addressed a similar case in which the trial judge was not named in the indictment but was nonetheless involved in the underlying offense. See Whitehead v. State, 273 S.W.3d 285,286 (Tex. Crim. App. 2008). In that case, the judge was one ofthe people threatened in a letter written by the defendant that formed the basis for the State's motion to revoke the defendant's community supervision. Id. The court of criminal appeals rejected the intermediate court's conclusion that the judge was not an injured party merely because he was not named in the indictment, and held that he "may be the party injured,

... if the evidence shows that he was among the defendant's victims in the criminal transaction or episode at issue, such that a reasonable person would harbor doubts as to the judge's impartiality.,,6 Id. at 289 (internal quotations omitted). The court further held that a reasonable person would harbor doubts about the judge's impartiality in that case, and therefore the judge was disqualified. See id. Given that Judge Mills is not the victim named in the indictment, he is an injured party, if at all, because he was a victim in the criminal transaction or episode at issue such that a reasonable person would doubt his impartiality. See id. Judge Richardson did not make fmdings

6 The defendant in Whitehead v. State did not file a motion to recuse the trial judge, and thus the court of criminal appeals considered only whether the trial judge was disqualified. See 273 S.W.3d 285, 289 (Tex. Crim. App. 2008). Given that the rationale and standard established in Whitehead are identical to the rationale and standard for recusal under rule 18b(b)( 1) of the Rules of Civil Procedure, it is possible that the interest addressed in Whitehead could more aptly be resolved under recusallaw. See id. ("We have no doubt that [the trial judge's] integrity is of the highest and that he would have recused himselfhad a motion for recusal been filed. "). Nevertheless, the court determined that the interest was disqualifying under article 30.01 of the Code of Criminal Procedure, and we are bound to conform our opinions to those of the court of criminal appeals. See State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.-Austin 2006). 13of fact or conclusions of law as to whether Judge Mills was an injured party within the meaning of article 30.01 or whether a reasonable person would doubt his impartiality. As we will discuss below, we are abating this appeal and remanding this cause for

a new hearing on the issue of whether Judge Mills should have been recused under rule 18b(b)(1) of the Rules of Civil Procedure. The objective reasonable-person standard for disqualification established in Whitehead is identical to the objective reasonable-person standard for recusal under rule 18b(b)(1). Compare Whitehead, 273 S.W.3d at 286, with Ex parte Ellis, 275 S.W.3d 109, 115-17 (Tex. App.-Austin 2008, no pet.) (describing objective reasonable-person standard for recusal under rule 18b(b)( 1)). Therefore, we will also abate this appeal and remand this cause with instructions to determine whether Judge Mills is disqualified as an injured party under Whitehead. See 273 S. W.3d at 286; see also Gamez v. State, 644 S. W.2d 879, 880-81 (Tex. App.-San Antonio 1982, pet. ref d) (abating case and remanding for factual determination of whether trial judge was disqualified under article 30.01).

Recusal In his second issue on appeal, Fuelberg asserts that Judge Richardson erred in denying his motion to recuse Judge Mills. Specifically, Fuelberg argues that Judge Mills should have been recused because, given his fmancial interest in the PEC and his status as a victim of the offenses alleged, his "impartiality might reasonably be questioned.'" See Tex. R. Civ. P. 18b(b )(1). Although

, Fuelberg also asserts that Judge Mills should have been recused because he had "a fmancial interest in the subject matter in controversy." See Tex. R. Civ. P. 18b(b)( 6). However, Fuelberg did not raise this argument in his amended motion to recuse Judge Mills, nor did he assert it as a separate ground for recusal at the hearing before Judge Richardson. Therefore, Fuelberg has not preserved this issue for appeal. See Blackwell v. Humble, 241 S.W.3d 707, 713 (Tex. App.-Austin 2007, 14these complaints mirror the arguments for disqualification discussed above, recusal is concerned not only with actual personal or pecuniary interests, but also the appearance of impartiality when all factors are reviewed as a whole. See id.; Rogers v. Bradley, 909 S.W.2d 872, 873 (Tex. 1995) ("Declaration of Recusal" by Gammage, J.) (noting that issue is one of perception). "[B]eyond the demand that a judge be impartial is the requirement that judge appear to be impartial so that no doubts or suspicions exist as to the fairness or integrity of the court." Sears v. Olivarez, 28 S.W.3d 611, 613-14 (Tex. App.-Corpus Christi 2000, no pet.). Thus, according to Fuelberg, even ifJudge Mills's alleged interests in this case do not rise to the level of constitutional disqualification, those interests nevertheless cause his impartiality to be reasonably questioned. In determining whether recusal is required, "the proper inquiry is whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge and the case, would have a reasonable doubt that the judge is actually impartial." Ex parte Ellis, 275 S.W.3d at 115-17 (internal quotations omitted). Thus, unlike the subjective issue of whether Judge Mills has a personal or pecuniary interest in this case, recusal is determined from an objective standard, and asks whether a reasonable person would doubt that Judge Mills could remain impartial. Id. As discussed above, we will not treat our previous mandamus opinion as law of the

case with respect to recusal. Therefore, we review Judge Richardson's ruling on Fuelberg's recusal motion for an abuse of discretion. Wesbrook v. State, 29 S. W.3d 103, 120 (Tex. Crim. App. 2000). Judge Richardson issued an order denying Fuelberg's disqualification and recusal motions, in which he adopted the findings of fact and conclusions of law he previously announced

no pet.) (noting that party who fails to timely raise grounds for recusal waives right to complain about judge's failure to recuse). 15during the disqualification and recusal hearing. At the hearing, Judge Richardson mostly focused

on the motion to disqualify and made only the following fmdings of fact and conclusions oflaw with respect to recusal:

The recusal issue is something completely different. They argue the recusal issue under the Code ofJudicial Conduct and that Judge Mills could not be fair and impartiaL And the only thing I have to rely on at this point is as to Cannon [sic] Four, which states the following: "A judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge or interfere with the proper performance of judicial duty." I haven't found any cases directly on point that deal with this issue, although the defense relies on Whitt,8 and I'll comment on that in just a minute. Specifically, Judge Mills stated in court during the first hearing when the motion to recuse and disqualify was first brought to his attention that he could be fair and impartial, that he had no recollection of ever having received any kind of check from PEC, and didn't feel like he needed to step aside. And so the Court is relying on that representation to resolve the recusal issue, and that is that he can be. The defense chose not to call him, so that is the only thing that is reflected in the record as to whether or not he could be fair and impartial so I'll rely on his representation that he can be. Judge Richardson also issued a supplemental order, in which wrote that "neither side chose to call Judge Mills as a witness. Therefore, the Court will rely upon the Judge's representations in the record vis-a-vis his ability to be fair and impartiaL" Judge Richardson noted that Judge Mills had received only one distribution for $18, and concluded "[t]hat amount hardly seems sufficient to

8 The "Whitt" case Judge Richardson is referring to is Pahl v. Whitt, 304 S.W.2d 250,252 (Tex. Civ. App.-EI Paso 1957, no writ), the case discussed above concerning disqualification based on membership in an electric cooperative. Judge Richardson did not discuss Whitt in terms of recusal, and it appears that his brief reference to it during his discussion of recusal is not relevant. 16create a bias that rises to the level of recusal or disqualification--especially in light ofhis statements to the contrary in the first hearing on the matter." These are Judge Richardson's only fmdings or comments with respect to Fuelberg's recusal motion. At no point in his oral pronouncement, his original order, or his supplemental order did Judge Richardson reference the objective reasonable-person standard that applies to recusal. Judge Richardson's fmdings of fact and conclusions of law indicate that he applied a subjective standard to determine whether Judge Mills was in fact impartial, relying solely on Judge Mills's own subjective state of mind and beliefs concerning whether he could be fair and impartial. Instead, Judge Richardson should have determined whether a reasonable person would doubt Judge Mills's impartiality. Therefore, we conclude that Judge Richardson abused his discretion by applying the incorrect legal standard to Fuelberg's motion to recuse. See State v. Herndon, 215 S.W.3d 901,907 (Tex. Crim. App. 2007) (noting that trial court abuses discretion when misapplies the law). Based upon this conclusion, we now must decide the appropriate remedy. One of

our sister court of appeals recently addressed a similar case in which a recusal court abused its discretion by "misapplying or misinterpreting recusallaw." See Kniatt v. State, 239 S.W.3d 910, 919-920 (Tex. App.-Waco 2007, no pet.) (op. on reh' g). In that case, the appellate court noted that it had "not determined that the assigned judge abused his discretion in denying [the defendant's] recusal motion under a correct application of recusallaw." Id. at 920. Therefore, the appellate court concluded that it should abate the appeal and remand the case for a new recusal hearing so that the
court below could apply the correct recusal standard. Id. at 922 (citing several cases from other
courts of appeals abating appeal for new recusal hearing). The court took this action even though the trial court had already rendered a judgment of conviction.
17We have determined that this procedural approach is appropriate in this case. The record does not clearly establish as a matter oflaw that Judge Mills should or should not have been recused. Furthermore, Judge Richardson has not considered or determined whether a reasonable person would doubt Judge Mills's impartiality. Therefore, we will abate this appeal and remand the

case for a new recusal hearing with instructions to apply the correct reasonable-person standard. Because we are abating this appeal and remanding this case for a new recusal hearing, we need not reach Fuelberg's remaining issues at this time. See Tex. R. App. P. 47.1 (requiring appellate courts to hand down opinions that are as brief as possible while addressing those issues necessary to final disposition of appeal).

CONCLUSION We overrule Fuelberg's complaint that Judge Mills was disqualified based on his alleged pecuniary interest in the subject-matter of this case. We abate this appeal and remand this

cause for a new hearing, with instructions to address whether, under an objective reasonable-person standard, Judge Mills (1) was disqualified as an interested party, see Whitehead, 273 S. W.3d at 286,

or (2) should have been recused because his impartiality might reasonably be questioned, see Tex. R. Civ. P. 18b(b)(1). The district court shall submit to this Court its fmdings and conclusions, along with

a transcription of the hearing, in a supplemental clerk's record and reporter's record on or before October 28, 2013. At that time, we may request supplemental briefmg from the parties as necessary.

18Scott K. Field, Justice Before Chief Justice Jones, Justices Pemberton and Field Abated Filed: August 27,2013 Publish

19TAB #2 January 7, 2014 Order Of The Court Of AppealsTEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO.03-11-00317-CR

Bennie Fuelberg, Appellant
v. The State of Texas, Appellee

FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT NO. CROI015, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING

ORDER

PER CURIAM We abated this appeal and remanded this cause for a new hearing, with instructions to address whether, under an objective reasonable-person standard, the Honorable Judge Daniel H. Mills (1) was disqualified as an injured party from hearing this case or (2) should have been recused because his impartiality might reasonably be questioned. See Fuelberg v. State, 410 S.W.3d 498, 510-11 (Tex. App.-Austin 2013, no pet.). The district court has since filed a supplemental clerk's record with an order concluding that Judge Mills was not disqualified and should not have been recused. This appeal is reinstated. We request supplemental briefmgs from the parties on the limited issue of whether the district court erred in concluding that Judge Mills should not have been disqualified or recused.The appellant should file his brief no later than February 6,2014. The State's response will be due within thirty (30) days of the filing of the appellant's brief. It is so ordered this 7th day of January 2014.

Before Chief Justice Jones, Justices Pemberton and Field Do Not Publish

2TAB #3 July 16, 2014 Opinion Of The Court Of AppealsTEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO.**03~11-00317-CR**

Bennie Fuelberg, Appellant
v. The State of Texas, Appellee

FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT NO. CROI015, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING

OPINION

A jury found appellant Bennie Fuelberg guilty of misapplication of fiduciary property, theft, and money laundering. See Tex. Penal Code §§ 31.03, 32.45, 34.02. The jury assessed punishment at ten years' imprisonment for each offense, but recommended that the sentences be suspended and Fuelberg be placed on community supervision. In seven appellate issues, Fuelberg asserts that (1) the trial judge, the Honorable Daniel H. Mills, was disqualified from the case; (2) the assigned judge abused his discretion in failing to recuse Judge Mills; (3) the trial court abused its discretion in admitting testimony of two of the State's witnesses; and (4) the trial court erred in its determination of restitution. We affirm the judgment of the trial court.BACKGROUND The facts ofthis case are discussed in this Court's prior opinion in Fuelberg v. State, 410 S.W.3d 498,501-02 (Tex. App.-Austin 2013, no pet.). We repeat only those facts that are relevant to our disposition of this appeal.

Factual background The Pedemales Electric Cooperative (PEC) is a member-owned utility that provides electrical service to twenty-four counties in Central Texas. See Tex. Util. Code §§ 161.001-.254 (describing formation and operation of utility cooperatives). Any resident in the PEC' s service area is required to join the PEC in order to receive electric service, and as of 2008 the PEC had over 225,000 members. Fuelberg was the general manager of the PEC from 1976 until his retirement in February 2008, and he was given broad authority to oversee its day-to-dayoperations. The State alleges that between November 1996 and March 2007, Fuelberg conspired with Walter Demond to funnel over $200,000 in PEC funds to Fuelberg' s brother Curtis and William Price, the son of a former PEC board member.} Demond was a partner at Clark, Thomas & Winters, PC (Clark Thomas), a law firm that had represented the PEC for several decades. According to Larry McNeil, the president of Clark Thomas, Demond was the law fIrm's informal chief fInancial offtcer and head of the "energy group," which was the section of Clark Thomas that handled the PEC's representation. Fuelberg was Demond's primary contact at the PEC, and the PEC paid Clark Thomas an average of $900,000 per year for its legal services.

} We refer to Curtis Fuelberg by his fIrst name to avoid confusion. 2According to the State, Fuelberg instructed Demond to hire Curtis as a consulting lobbyist for Clark Thomas and then have Clark Thomas bill the PEC to pay Curtis's salary. The State introduced evidence that between October 1996 and December 2003, Clark Thomas billed the PEC $30,000 every six months to cover "the PEC's share" of Curtis's salary.2 Similarly, the State alleged that beginning in 2003, Fuelberg instructed Demond to keep Price on retainer as counsel for Clark Thomas. The State introduced evidence that Clark Thomas paid Price $2,000 per month and then billed the PEC for most of those payments. Finally, the State introduced evidence that from January 2004 through March 2007, Demond billed the PEC $7,000 per month to cover both Price's retainer and Curtis's salary. All told, the state's forensic accountant testified that the PEC paid Clark Thomas $630,000 for Curtis's salary and $86,000 for Price's retainer. 3 At trial, PEC board members testified that they never knew about or approved Fuelberg's payment ofPEC funds to Curtis or Price. Price also testified that he did not know that his retainer was being paid with PEC's money. Finally, Curtis testified that he did not learn that his income from Clark Thomas was being paid with PEC funds until 2002 or 2003. The State also introduced evidence that when the PEC' s Human Resources Director asked Clark Thomas to explain the $7,000 monthly payments, Fuelberg told Demond to ignore that request and send billing invoices directly to Fuelberg for approval.

2 Clark Thomas initially paid Curtis $5,000 per month, but his salary ultimately increased to $7,000 per month. The PEC's $30,000 semiannual payment to Clark Thomas did not increase, and therefore the PEC was not reimbursing Clark Thomas for all of Curtis's salary.

3 There is conflicting evidence about whether Curtis did any actual work as a lobbyist for the PEC. Price, however, testified that he never performed any work for the PEC or Clark Thomas despite asking Demond several times if there was any work that he could do. 3David Duggins, another partner at Clark Thomas, testified that he spoke with Demond about their firm's payments to Curtis and Price in November or early December 2007. According
to Duggins, Demond assured him that the PEC was not being billed for Curtis's or Price's work. Two months later, however, Duggins "heard a reference made to PEC's share of these payments," and he asked Demond ''what is this about PEC' s share?" Duggins testified that Demond showed him

an invoice for the $7,000 per month that the PEC was paying to Clark Thomas, which Demond explained was for the PEC's share of Clark Thomas's payments to Curtis and Price. Demond told Duggins that Fuelberg instructed him to conduct this billing arrangement and that Fuelberg assured Demond that the PEC Board of Directors had approved the arrangement. However, when Duggins asked Demond for written proof of the PEC board's approval, Demond stated that he had none. Fuelberg retired from the PEC in February 2008. One month later, the PEC's new general manager hired Navigant Consulting to investigate and prepare a report about the PEC's outside consulting expenditures during Fuelberg's tenure. Part ofNavigant's investigation included PEC's payments to Clark Thomas. On December 15, 2008, Navigant issued its report (the Navigant Report), detailing Fuelberg and Demond's alleged scheme to transfer PEC funds to Curtis and Price through Clark Thomas. A few days before the Navigant Report was issued, a PEC representative who

was helping prepare the Navigant Report contacted Demond to discuss Clark Thomas's billing. According to the PEC representative, Demond did not provide an explanation for the $30,000 semiannual payments at the time--the same payments that were allegedly used to cover Curtis's lobbying salary as outlined above. Duggins testified that Demond called him to discuss the PEC's

4investigation, explained the purpose of the $30,000 payments, and stated that he was not sure what to tell the PEC. Duggins told Demond that they needed to meet with McNeil to discuss the situation. Duggins and McNeil testified that at that meeting, Demond explained the full extent of Clark Thomas's payments to Curtis and Price and how the firm was billing the PEC for its share of these expenses.
Procedural history Seven months after the Navigant Report was issued, Fuelberg and Demond were each indicted for first-degree felony misapplication of fiduciary property, first-degree felony theft, and second-degree felony money laundering. See Tex. Penal Code §§ 31.03(e)(7) (making theft

a first-degree felony if value of property stolen was more than $200,000), 32.45(c)(7) (same punishment range for misapplication of fiduciary property), 34.02( e)(3) (making money laundering

a second-degree felony ifvalue of fund is more than $100,000 but less than $200,000). Prior to trial, Fuelberg and Demond filed motions to disqualify or, alternatively, recuse Judge Mills from their respective cases. The motions asserted that as a PEC member, Judge Mills had a personal and pecuniary interest in this case and that a reasonable person might question Judge Mills's impartiality. Judge Mills declined to voluntarily recuse himself and referred the motions to the presiding judge, who assigned the motions to the Honorable Bert Richardson. See Tex. R. Civ. P. 18a (prescribing procedure for resolving motions to disqualify and recuse). Judge Richardson conducted a hearing, after which he denied Fuelberg's and Demond's motions. Fuelberg and Demond were tried separately, with Fuelberg's trial taking place three months before Demond's. In Fuelberg' s trial, the State called a total of nineteen witnesses, including
5Duggins and McNeil, who testified about their conversations with Demond outlined above. Fuelberg called a total of eight witnesses, including his brother Curtis, who testified about the work he performed for Clark Thomas. Finally, Fuelberg testified in his own defense, asserting that he had the authority to pay Curtis for consultant work and therefore there was nothing improper in his doing

so through Clark Thomas. Fuelberg also stated that he did not know that Demond was charging the PEC for Price's retainer. The jury found Fuelberg guilty of third-degree misapplication of fiduciary property, theft, and money-laundering, meaning that the value ofthe property misapplied, stolen, and laundered

was between $20,000 and $100,000. See Tex. Penal Code §§ 31.03(e)(5), 32.45(c)(5), 34.02(e)(2). The jury assessed punishment at ten years' imprisonment for each offense, but recommended that the
sentence be suspended and Fuelberg be placed on community supervision. The trial court rendered

a judgment consistent with the jury's verdict and also ordered Fuelberg to pay $126,000 in restitution. 4 This appeal followed.

DISCUSSION Fuelberg raises seven issues on appeal, which we group into the following four categories. First, Fuelberg asserts that Judge Mills was disqualified from presiding over this case because (a) as a PEC member, he has a pecuniary interest in the subject matter of the case and (b) as

a PEC member, he is a "party injured" within the meaning of article 30.01 ofthe Code of Criminal

4 The trial court also ordered Fuelberg to serve a total of 300 days in the Blanco County Jail as a condition of his community supervision. See Tex. Code Crim. Proc. art. 42.12, § 12(a) (authorizing judge to require defendant on community supervision for a felony offense to submit to confmement in county jail as condition of community supervision). 6Procedure. See Fuelberg, 410 S. W.3d at 503 (discussing Fuelberg' s disqualification claims). Second, Fue1berg argues that Judge Richardson erred in denying Fuelberg's motion to recuse Judge Mills. Third, Fuelberg complains that Duggins's and McNeil's testimony about their conversations with Demond constituted hearsay and violated the Confrontation Clause. Fourth, Fuelberg claims that the trial court abused its discretion in ordering restitution higher than the amount reflected in the jury's verdict. We will address each issue separately. Disqualification and recusal In our prior opinion, we overruled Fuelberg's assertion that Judge Mills had a disqualifying pecuniary interest in this case. See id. at 504-07. However, we remanded the case to Judge Richardson to determine "whether, under an objective reasonable-person standard, Judge Mills (1) was disqualified as an interested party
... or (2) should have been recused because his impartiality might reasonably be questioned." Id. at 511 (citing Whitehead v. State, 273 S.W.3d285, 286 (Tex. Crim. App. 2008); Tex. R. Civ. P. 18b(b)(1». On remand, Judge Richardson conducted a second disqualification and recusal hearing. Following that hearing, Judge Richardson again denied Fuelberg's motion to disqualify and recuse Judge Mills. Fuelberg argues that Judge Mills was disqualified under article 30.01 of the Code of Criminal Procedure, which states that a judge is disqualified from sitting in "any case where he may be the party injured." As we discussed in our prior opinion, Judge Mills "is an injured party, if at all, because he was a victim in the criminal transaction or episode at issue such that a reasonable person would doubt his impartiality." Id. at 508 (citing Whitehead, 273 S.W.3d at 286). "The objective reasonable-person standard for disqualification" as an injured party is "identical to the
7objective reasonable-person standard for recusal under rule 18b(b)( 1)." Id. (comparing Whitehead, 273 S.W.3d at 286, with Ex parte Ellis, 275 S.W.3d 109, 115-17 (Tex. App.-Austin 2008, no pet.». Therefore, in addressing either disqualification under article 30.01 of the Code of Criminal Procedure or recusal under section 18b(b)(1) of the Rules of Civil Procedure, the ultimate issue is the same-would "a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge and the case, ... have a reasonable doubt that the judge is actually impartial[?]" Ex parte Ellis, 275 S.W.3d at 116 (internal quotations omitted). This objective reasonable-person standard "is concerned not only with actual personal

or pecuniary interests, but also the appearance of impartiality." Fuelberg, 410 S.W.3d at 509. "[B]eyond the demand that a judge be impartial is the requirement that a judge appear to be impartial

so that no doubts or suspicions exist as to the fairness or integrity ofthe court." Sears v. Olivarez, 28 S.W.3d 611, 614 (Tex. App.-Corpus Christi 2000, no pet.); see also Rogers v. Bradley, 909 S.W.2d 872, 873 (Tex. 1995) ("Declaration of Recusal" by Gammage, J.) (noting that issue is

one of perception). The determination of whether a reasonable person would doubt Judge Mills's impartiality "should be based on a studied analysis of all of the circumstances involved rather than

a knee-jerk reaction to one fact in isolation." Ex parte Ellis, 275 S.W.3d at 116. "Courts enjoy a presumption of judicial impartiality." Id. at 117 (internal quotations omitted). This presumption stems from "the notion that the conscientious judge will, as far as possible, make himself aware of his biases

... and, by that very self-knowledge, nullify their effect." See Liteky v. Unites States, 510 U.S. 540, 562 (1994) (Kennedy, J., concurring) (internal quotations omitted). As Justice Kennedy explained, "[t]he acquired skill aild capacity to disregard extraneous

8matters is one of the requisites of judicial office." Id. Therefore, a "party seeking recusal"-and, by extension, disqualification under article 30.01 of the Code of Criminal Procedure-"must satisfy

a high threshold before a judge must be recused." See Ex parte Ellis, 275 S.W.3d at 116 (internal quotations omitted). We review Judge Richardson's denial of Fuel berg's motion to disqualify and

recuse Judge Mills for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App.2000). Therefore, we will only reverse Judge Richardson's ruling if it is outside the zone of reasonable disagreement. Id. In this case, Judge Mills's potential interests in the PEC generally and this case specifically can be grouped into two categories-pecuniary and personal. As we explained in our prior opinion, Judge Mills's only pecuniary interest in the PEC "is in the rates that he pays, or should have paid, for utility service, which is indistinguishable from the interest of a public utility customer." Fuelberg, 410 S.W.3d at 506; see also Tex. R. Civ. P. 18b(d)(4)(E) ("[A]n interest as

a taxpayer or utility ratepayer, or similar interest, is not a 'fmancial interest' unless the outcome of the proceeding could substantially affect the liability of the judge

... more than other judges."). Similarly, Judge Mills's pecuniary interest in the outcome of this case is very attenuated "because he stood to gain only if Fuelberg was convicted; Judge Mills in his discretion, ordered Fuelberg 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." Fuelberg, 410 S. W.3d at 506. Even if all ofthose events occurred, Judge Mills stood to gain $5.00 at most from any potential restitution. Having already determined that Judge Mills's pecuniary interest in this case does not support his

9disqualification, we turn to the issue of whether Judge Mills's personal interests in this case require disqualification or recusal. Judge Mills's potential personal interest in this case can best be understood as his status as a putative victim of the underlying offenses. See id. at 507-08. Fuelberg argues that although Judge Mills is not the victim named in the indictment, as a PEC member he was "among the defendant's victims in the criminal transaction or episode at issue." See Whitehead, 273 S. W .3d
at 289. Judge Mills's status as a putative victim of Fuelberg's theft, misapplication of fiduciary property, and money laundering could require disqualification or recusal ifit would lead a reasonable person to question Judge Mills's ability to remain impartial. See Fuelberg, 410 S.W.3d at 507-08. On remand, Fuelberg introduced expert testimony from Jeffrey Alan Smith, a professional pollster and statistician who has conducted over 400 public opinion polls in his career. Smith testified that he conducted a random survey of 402 adult residents of Bandera County, Texas, who are all customers of the Bandera Electric Cooperative. 5 The survey included the following relevant statements and questions:

An electric utility cooperative is a non-profit organization that provides utility services to its members. It is overseen by a manager and board of directors whose duty is to operate the utility for its members' benefit. Members have an interest in the efficient management of the co-op that they trust management to protect
....

5 According to the State, the Bandera Electric Cooperative has approximately 23,000 members, and therefore is less than 10% the size of the PEC. Smith explained that he chose to interview members of the Bandera Electric Cooperative because he believed they would have "at least a passing familiarity with the concept of an electric co-op" but they would not be "tainted by this particular case." 10Suppose that the manager of an electric co-op had conspired with the co-op's legal advisor to steal a great deal of co-op funds for their own benefit. Would you consider the co-op members to have been harmed by this theft and breach of trust, even ifthe fmancial impact on individual customers was minimal?

Suppose that the judge in that trial was a member of the same co-op that the defendants were accused of stealing from. Would it be reasonable to have concerns about the judge being fair and unbiased in that particular case? According to Smith, 87.6% of those surveyed stated that they believe the members would be harmed by the theft and breach of trust. Furthermore, 70.6% of those surveyed stated that it would be reasonable to have concerns about the judge being fair and unbiased. Smith stated that the poll had

a 4.9% margin of error. Although this statistical evidence is somewhat related to the recusal issue, as Judge Richardson correctly noted in his fmdings of fact, Smith's survey "did not fully put forward the 'reasonable person' test required to be answered for recusal" and disqualification under Whitehead, 273 S. W.3d at 286. First, the survey did not provide all ofthe relevant facts concerning Judge Mills and this case. See Ex parte Ellis, 275 S.W.3d at 116. Among other things, the survey does not mention that the hypothetical utility co-op has over 225,000 members; everyone who lives in the co-op's service area is required to join the co-op; the hypothetical judge could receive at most $5 in restitution from this case; and that restitution would occur only if the co-op's board of directors, in its discretion, increased the allocation to all of the members' capital accounts and then approved distribution from those capital account to the members. See Fuelberg, 410 S. W.3d at 506 (discussing Judge Mills's attenuated financial interest in this case).

11Furthermore, Smith's survey does not pose the appropriate legal question-i.e., whether the survey participant would doubt the hypothetical judge's impartiality. See Ex parte Ellis, 275 S.W.3d at 116 (noting correct question is whether member of public would reasonably doubt judge's impartiality). Rather, it asks the survey taker whether "it would be reasonable to have

concerns about the judge's impartiality." Judge Richardson could have reasonably believed that "concern" is not an appropriate synonym for "doubt," and therefore Smith's survey failed to accurately gauge whether the average survey taker would doubt the hypothetical judge's ability to remain impartial. Finally, as Judge Richardson correctly noted in his findings of fact, the "'reasonable person' standard is a legal standard," and "evidence derived from survey results attempting to ascertain public opinion related to judicial bias" is not controlling. A reasonable person is "[ a] hypothetical person used as a legal standard

... [and] 'is not necessarily the same as the average man-a term which implies an amalgamation of counter-balancing extremes.'" Black's Law Dictionary 1380 (9th ed. 2009) (quoting R.F.V. Heuston, Salmond on the Law of Torts 56 (17th ed. 1977). "[J]udges determine appearance of impropriety-not by considering what a straw poll of the only partly informed man-in-the-street would show-but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge." In re Drexel Burnham Lambert Inc., 861 F.2d 1307,1313 (2d Cir. 1988). Therefore, although the opinion of the average person is related to the opinion of the hypothetical reasonable person, the terms are not synonymous, and public polling is not a substitute for an appropriate legal analysis of the reasonable-person standard.

12Given that Smith's survey did not provide all of the relevant facts concerning Judge Mills and this trial, the survey did not ask survey takers whether they would doubt the hypothetical judge's impartiality, and surveys generally are not a substitute for the reasonable-person standard, Judge Richardson could have reasonably discounted this survey's probative value. Having determined the relative weight--or lack thereof--of Smith , s survey, we turn to Fuelberg' s remaining arguments concerning recusal and disqualification. First, Fuelberg notes that during its closing argument, the State asserted that by stealing from the PEC, Fuelberg was really stealing from "the farmer in Blanco County, the storekeeper in Marble Falls, the homeowner in suburban Austin." In short, the State argued that Fuelberg was stealing from every PEC member, a group which includes Judge Mills. Fuelberg contends that this argument underscores the fact that-even by the State's own admission-all PEC members were the victims of Fuelberg's alleged theft, and therefore Judge Mills was disqualified

as a victim. As we explained in our previous opinion, Judge Mills is disqualified as a party injured if he was a victim of this underlying offense "such that a reasonable person would doubt his impartiality." See Fuelberg, 410 S.W.3dat 508. Therefore, thefactthatthe State characterizes PEC members as victims of Fuel berg's theft does not end the relevant inquiry. The State might similarly characterize taxpayers as victims ofpublic corruption or members ofthe public generally as victims of insider trading, even though such Ubiquitous injuries would not necessarily support a judge's disqualification or recusal. See Lane v. State, 634 S.W.2d 65, 66 (Tex. App.-Fort Worth 1982, no pet.) (concluding that judge was not disqualified from presiding over perjury trial where perjury was

13-------------------**--~--**

committed in judge' s court}. Therefore, the fact that the State chose to characterize PEC members

as victims of Fuel berg and Demond's conspiracy does not meaningfully address whether a reasonable person would question Judge Mills's impartiality. Second, Fuelberg asserts that the venue in this case was transferred from Blanco County, at least in part, based on concerns that the jurors were likely PEC members and therefore may be biased against the defense. See generally Tex. Code Crim. Proc. art. 31.03(a}{l} (stating defendant can file motion to change venue if there exists "so great a prejudice against him that he
cannot obtain a fair and impartial trial."). According to Fuelberg, this change of venue underscores the fact that membership in the PEC raises concerns of bias or impartiality which would be equally applicable to Judge Mills. Fuelberg concedes that venue was transferred in this case by consent of the parties, and thus the trial court never found that the prejudice against Fuelberg was so great that he could not receive a fair and impartial trial in Blanco County.6 Compare id. art. 31.03(a}(I}, with id. art. 31.03(b} (stating venue may be transferred "upon motion of the defendant and with the consent ofthe attorney for the state" for convenience of the parties or in the interest of justice). However, even if venue had been transferred based on a concern of a tainted jury pool, it does not necessarily follow that Judge Mills should be recused. Judges enjoy a presumption of impartiality, and exercising the ability to disregard extraneous information is one of the skills that is expected of the judiciary. See Ex parte Ellis, 275 S.W.3d at 116. Therefore, the same extraneous knowledge that might support

6 The State asserts that the parties agreed to transfer venue because this case received a high level of press coverage in Blanco County. 14disqualifying a juror or even transferring venue might not support recusing a trial judge. See id. (noting that party seeking to recuse judge must satisfy high threshold). Finally, and perhaps most persuasively, Fuelberg notes that Judge Mills was among the participants in the "Worrall Suit"-a class-action lawsuit brought on behalf of all PEC members against the PEC, Fuelberg, and various PEC officers and directors. The plaintiffs in the Worrall Suit alleged that the defendants breached their fiduciary duties by, among other things, "failing properly
to oversee, object to and prevent Fuelberg's

... lavish self-dealing"; failing to manage, invest, and dispose of PEC members' "capital credit accounts"; and negligently purchasing a for-profit software subsidiary. See Fuelberg, 410 S. W.3d at 505 (explaining function ofPEC members' capital credit accounts). Judge Mills did not opt out of the Worrall Suit, which was settled by the parties. Judge Mills stated that he did not participate in the Worrall Suit beyond not opting out, that he "did
not pretend to know all the terms and conditions" of the suit, and that he only vaguely knew the
terms ofthe settlement agreement. According to the PEC' s Chief Financial Officer, Judge Mills had received a distribution from his capital credit account for approximately $18, and under the terms of the settlement agreement, Judge Mills and all other PEC members would likely be receiving additional, nominal distributions in the future. We recognize that some ofthe allegations in the Worrall Suit relate to the underlying facts of Fuel berg's criminal trial. However, Judge Mills's financial interest in the settlement of that lawsuit is the same pecuniary interest that we determined was not disqualifying because it is "indistinguishable from the interest of a public utility customer." See id. at 506; see also Gulf Mar. Warehouse Co. v. Towers, 858 S.W.2d 556,558 (Tex. App.-Beaumont 1993, writ denied) (noting that pecuniary interest requiring disqualification means same thing as fmancial interest that might
15--------------- ---------------

support recusal). The financial compensation that Judge Mills received from the suit is generally the same type ofrebate that a public utility customer would receive for previous overpayments. See Fuelberg, 410 S.W.3d at 505. Ultimately, there is evidence in the record that Judge Mills did not actively participate in the Worrall Suit, that his interest in this case was indistinguishable from that ofthe other 225,000 PEC members, that any resident in the PEC's coverage area had to purchase his electricity from the PEC, and that Judge Mills stood to gain $5.00 at most from any restitution that he ordered in this case in addition to the approximately $18 he received under the terms of the Worrall settlement. Based on the record as a whole, Judge Richardson could have reasonably concluded that a reasonable person would not doubt Judge Mills's ability to remain impartial. See Ex parte Ellis, 275 S.W.3d at 116 (noting that courts determine whether judge should be recused "based on a studied analysis of all of the circumstances involved rather than a knee-jerk reaction to one fact in isolation."). Therefore, we cannot say that Judge Richardson abused his discretion in denying Fuelberg's motion to disqualify and recuse Judge Mills. We overrule Fuelberg's fITst and second appellate issues. Admissibility of Duggins's and McNeil's testimony In his third, fourth, fifth, and sixth issues on appeal, Fuelberg asserts that the trial court erred in overruling his objections to Duggins's and McNeil's testimony. Specifically, Fuelberg claims that Duggins's and McNeil's testimony about their conversations with Demond constituted inadmissible hearsay that does not fall within a recognized exception. See generally Tex. R. Evid. 801-04. Furthermore, Fuelberg argues that the witnesses' testimony violated the
16**~~~~------**

Confrontation Clause because Fuelberg could not confront Demond about his out-of-court
statements. See generally U.S. Const. amend. VI. We address Fuelberg' s hearsay and confrontationclause arguments separately.
Hearsay In his third and fifth issues on appeal, Fuelberg complains that Duggins's and McNeil's testimony about their prior conversations with Demond should have been excluded

as hearsay. We review a trial court's decision to admit or exclude evidence under an abuse-ofdiscretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). We will uphold the trial court's decision if it is supported by the record and is correct under any theory of applicable law. Martin v. State, 173 S.W.3d 463,467 (Tex. Crim. App. 2005). Hearsay is an out-of-court statement "offered in evidence to prove the truth of the
matter asserted." Tex. R. Evid. 801(d). Generally, a hearsay statement is not admissible unless the statementfalls within a recognized exception to the hearsay rule. See Pena v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011). The State asserts that Duggins's and McNeil's testimony about what Demond told them is not hearsay because it constitutes an admission by Fuelberg's co-conspirator "during the course and in furtherance of the conspiracy." See Tex. R. Evid. 801 (e)(2)(E) (defining admissions of party- opponent's co-conspirator as not hearsay). "To come within [the co-conspirator] rule, the State must show that a conspiracy existed, that the co-conspirator was a member of or participated in the conspiracy, and that the
statement was made to advance or facilitate the conspiracy." Maynard v. State, 166 S. W.3d 403,411 (Tex. App.-Austin 2005, pet. ref d). "Statements made in furtherance of a conspiracy include
17attempts to induce others to cooperate with or assist co-conspirators; attempts to induce another
to join or continue with the conspiracy; discussions related to concealment of the conspiracy; or conversations to identify the roles of the conspirators." Id. At trial, the State asserted that Fuelberg conspired with Demond to funnel PEC funds
to Curtis and Price. The State also argued that as part of this underlying conspiracy, Fuelberg and Demond conspired to conceal these payments from the PEC board by not identifying who was performing the work for which Clark Thomas was billing. Fuelberg claims that any alleged conspiracy between himself and Demond ended when Clark Thomas made its final payments to Curtis and Price in March 2007. Therefore, according to Fuelberg, Demond's statements to Duggins and McNeil could not have been in furtherance of the conspiracy because those statements

were not made until November 2007, January 2008, and December 2008. Although Fuelberg may be correct that the primary objective of the alleged conspiracy-i.e., funneling PEC funds to Curtis and Price-ended when Clark Thomas stopped making the relevant payments, the State introduced evidence that Fuelberg and Demond engaged in

a conspiracy, which continued until the Navigant Report was issued in mid-December 2008, to hide those payments. See Forman v. United States, 361 U.S. 416,423-24 (1960) (concluding evidence supported assertion that conspiracy to evade taxes continued for eight years after last fraudulent tax return was filed because concealment had to continue if evasion was to succeed), overruled on other grounds by Burks v. United States, 437 U.S. 1, 18 (1978).7 "Concealment is sometimes a necessary

7 When, as here, the Texas Rules of Evidence are patterned on their federal counterparts, we find it appropriate to look to federal cases and commentary for guidance. See Taylor v. State, 268 S.W.3d 571,579 (Tex. Crim. App. 2008).
18part of a conspiracy, so that statements made solely to aid the concealment are in fact made during and in furtherance of the charged conspiracy." United States v. Mann, 161 F.3d 840, 857 (5th Cir. 1998). Thus, the fact that Demond's statements to Duggins and McNeil occurred after the underlying theft, misapplication of fiduciary property, and money laundering were completed does
not mean that those statements were not in furtherance of Demond'S alleged conspiracy with Fuelberg. See United States v. Godinez, 110 F.3d448, 454 (7th Cir. 1997) ("It is irrelevant that the [co-conspirator's statements were] not made within the time frame charged in the indictment."). The State introduced testimony that in 2004, Fuelberg instructed Demond not to respond to the PEC's request for an explanation of Clark Thomas's $7,000 monthly bill that paid for Curtis's salary and Price's retainer. Similarly, Duggins testified that during his conversation with Demond in November 2007, Demond told Duggins that none of Curtis's or Price's payments

were being paid with PEC funds. Finally, both McNeil and Duggins testified that days before the Navigant Report was issued, Demond finally explained his arrangement with Fuelberg to have Clark Thomas pay Curtis and Price and then bill the PEC for the majority of those payments. Demond's alleged statements to McNeil and Duggins could arguably be seen as an attempt to encourage them to help Demond conceal the conspiracy in order to protect Clark Thomas. Based on this record, the trial court could have reasonably concluded that Demond's
statements to Duggins and McNeil were in the course of and in furtherance of a conspiracy between Demond and Fuelberg to conceal theft, misapplication of fiduciary property, and money laundering from the PEC. Therefore, we cannot conclude that the trial court abused its discretion in admitting Duggin's and McNeil's testimony as a non-hearsay admission by a co-conspirator. We overrule Fuelberg's third and fifth appellate issues.
19Confrontation Clause In his fourth and sixth issues on appeal, Fuelberg asserts that Duggins's and McNeil's testimony concerning Demond's previous out-of-court statements violated the Confrontation Clause. Specifically, Fuelberg argues that he could not cross-examine Demond about the statements because Demond could invoke his right to remain silent. See U.S. Const. amend. V; Mendez v. State, 56 S.W.3d 880,892 (Tex. App.-Austin 2001, pet. refd) (introducing confession of non-testifying accomplice violated defendant's Sixth Amendment rights). The Confrontation Clause to the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against



### .. him." U. S. Const. amend. VI. Generally, courts have construed the Confrontation Clause to prohibit prosecutors from admitting "testimonial" out-of-court statements against a defendant unless the defendant has been afforded the opportunity to cross-examine the declarant. See De La Paz v. State, 273 S.W.3d 671,680 (Tex. Crim. App. 2008). A statement is testimonial "when the surrounding circumstances objectively indicate that the primary purpose" for the declarant making the statement

was "to establish or prove past events potentially relevant to later criminal prosecution." Id. (internal citations omitted). "Generally, a co-conspirator's statements made in furtherance of the conspiracy

are nontestimonial." King v. State, 189 S.W.3d 347, 359 (Tex. App.-Fort Worth 2006, no pet.) (citing several federal and Texas cases supporting proposition); see also Crawford v. Washington, 541 U.S. 36, 56 (2004) ("Most ofthe hearsay exceptions covered statements that by theirnature were not testimonial-for example,

... statements in furtherance of a conspiracy."). As we have already

20concluded, the trial court could have reasonably determined that Demond's statements to Duggins and McNeil were made in furtherance of a conspiracy between Demond and Fuelberg to conceal theft, misapplication of fiduciary property, and money laundering. Therefore, we cannot conclude that the trial court abused its discretion in determining that Demond's out-of-court statements were non-testimonial, and thus Duggins's and McNeil's testimony did not violate the Confrontation Clause. See id. We overrule Fuelberg's fourth and sixth appellate issues.

Restitution In his seventh and final issue on appeal, Fuelberg asserts that the trial court abused its discretion in ordering him to pay $126,000 in restitution. Specifically, Fuelberg asserts that because the jury only convicted him of third-degree felony theft, misapplication of fiduciary property, and money laundering, the jury implicitly found that Fuelberg at most stole, misapplied,

or laundered $100,000. See Tex. Penal Code §§ 31.03(e)(5), 32.45(c)(5), 34.02(e)(2). Therefore, according to Fuelberg, the trial court abused its discretion in ordering restitution above the amount reflected in the jury's verdict. We review a trial court's restitution order for an abuse of discretion. Cartwright v. State, 605 S.W.2d 287,289 (Tex. Crim. App. 1980). "The amount of the restitution must be just, and it must have a factual basis within the loss of the victim." Campbell v. State, 5 S.W.3d 693,696 (Tex. Crim. App. 1999). In determining the appropriate amount of restitution, the court must consider (1) the amount of loss sustained by the victim and (2) other factors the court deems appropriate. Tex. Code Crim. Proc. art. 42.037(c). The victim's "loss must be a 'but for' result of the criminal offense and resulted 'proximately,' or foreseeably, from the criminal offense." Hanna
21v. State, 426 S.W.3d 87,95 (Tex. Crim. App. 2014). The State bears the burden of proving the
amount of restitution, but unlike the guilt-innocence phase of trial, the amount of restitution need only be proven by a preponderance of the evidence. See Tex. Code Crim. Proc. art. 42.037(k). Fuelberg concedes that there is a factual basis to support $86,000 for restitution-the
amount ofPEC funds used for Price's retainer. 8 The State asserts that in addition to this $86,000, there was reliable testimony that the PEC spent between $40,000 and $56,000 during the investigation for the Navigant Report to try to recover data that Fuelberg deleted from four of his laptops. See Campbell, 5 S.W.3d at 701 (noting that amount ofrestitution is not limited by propertyvalue range reflected in indictment or conviction). In response, Fuelberg argues that the testimony about the PEC's investigation costs is insufficient to justify the restitution because (1) the witness estimated some of the work hours that went into recovering the lost data; (2) the data recovery process began before the investigators learned that PEC funds were being used to pay Price's retainer, and therefore could not have related to investigations of payments to Price; and (3) the witness could only provide some documentation to support his estimates, and some of that documentation was arguably inconsistent with his valuation. Evidence of damages can come from many sources, including expert testimony, estimates from insurance adjusters, and lay testimony from a property owner about the value of

8 Fuelberg asserts-and the trial court appears to have believed-that based on the record and the jury's verdict, the jury must have concluded that the PEC received fair value for Curtis's lobbying work, and thus the PEC's payments to Curtis cannot form the basis for the restitution order. We need not reach this issue because, as we will explain, there is a sufficient factual basis to affirm the trial court's restitution order regardless of whether it includes restitution for money paid to Curtis. 22his property. See Campbell v. State, 426 S.W.3d 780,783-84 (Tex. Crim. App. 2014) (explaining different methods of proving damages for restitution). The Navigant investigator's estimate of the cost of trying to recover the data that Fuelberg deleted was supported in part by copies of the Navigant's bills to the PEC and the investigator's own recollection of hours spent on the data recovery. Thus, the witness's testimony was supported both by his first-hand knowledge of the work done and documentation of the costs. Similarly, the fact that the bills did not separately delineate the cost of data recovery does not make the evidence insufficient because the witness

was able to independently approximate the work done in the recovery effort. See Elomary v. State, 796 S.W.2d 191, 193-94 (Tex. Crim. App. 1990) (explaining why insurance adjuster estimate of damage is sufficient to support restitution order). Finally, we [md Fuelberg's argument that the PEC should not be entititled to restitution for costs that it incurred before it learned that PEC funds were being paid to Price unconvincing. The Navigant investigator testified that Navigant ultimately could recover little relevant data from Fuelberg's computers because it had been so thoroughly deleted. However, Navigant was able to recover subject lines from several emails indicating that the computers did contain emails from Fuelberg to Demond concerning the PEC's payments to Clark Thomas. Therefore, the trial court could have reasonably concluded that Fuelberg had intentionally deleted the information on the laptops to conceal increnienting information about his conspiracy to use PEC funds to pay Price's retainer. The fact that Fuelberg was extremely successful in deleting the data from his computer does not mean that the PEC's investigation expenses are not

23compensable-rather, the investigation expenses are another injury that the PEC bore as a result of Fuel berg's complicated theft, misapplication, and money laundering offenses. The record contains a factual basis for the trial court's determination that the PEC incurred at least $40,000 in investigation expenses for the data that Fuelberg deleted from his computers. Given that Fuelberg concedes that the record supports the remaining $86,000 in restitution, we conclude that the trial court did not abuse its discretion in ordering a total of$126,000 in restitution. We overrule Fuelberg's seventh and final issue on appeal.

CONCLUSION Having overruled Fuelberg's seven appellate issues, we affIrm the trial court's judgment of conviction.

Scott K. Field, Justice Before Chief Justice Jones, Justices Pemberton and Field AffIrmed Filed: July 16,2014 Publish

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