Beau Jackson Fuqua v. The State of Texas--Appeal from 100th District Court of Carson CountyAnnotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
APRIL 27, 2010
BEAU JACKSON FUQUA, APPELLANT
THE STATE OF TEXAS, APPELLEE
FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;
NO. 3594; HONORABLE STUART MESSER, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Beau Jackson Fuqua appeals the trial court=s judgment adjudicating
him guilty of the offense of aggravated sexual assault of a child and sentencing him to
twenty-nine years in the Institutional Division of the Texas Department of Criminal
Through one point of error, appellant contends the trial court abused its
discretion by considering evidence outside the record in reaching its sentencing
decision. We disagree, and affirm.
Appellant plead guilty to aggravated sexual assault of a child,1 and the trial court
entered an order deferring adjudication of his guilt and placing him on community
supervision. Appellant=s deferred adjudication community supervision was conditioned
on his compliance with specified terms and conditions. The State later filed its First
Amended Motion to Adjudicate Guilt of Defendant, alleging appellant violated twelve
terms and conditions of his community supervision.
The allegations included
appellant’s commission of three additional offenses.
At the hearing on the State=s motion, appellant entered pleas of Atrue@ to each of
the State=s allegations. Thereafter, the State presented the testimony of appellant=s
probation officer and a police officer.
Appellant=s probation officer testified that appellant was noncompliant with the
terms of his probation and opined appellant was not a good candidate for continued
probation. On cross-examination, the officer agreed that many of appellant=s violations
were related in some way to his use of controlled or intoxicating substances. On redirect examination, the officer agreed that appellant also had failed to register as a sex
offender as required by law and had been in a household where young children were
present, in violation of conditions of his community supervision.
See Tex. Penal Code Ann. ' 22.021(a)(2)(B) (Vernon 2007). This is a first
degree felony punishable by imprisonment for life or a term of not less than five years or
more than 99 years. Tex. Penal Code Ann. ' 12.32 (Vernon 2003).
The police officer testified to a traffic stop of appellant, during which appellant
exhibited signs of intoxication, admitted he had consumed beer, and was shown by
intoxilyzer to have a blood alcohol concentration of 0.136.
Appellant testified on his own behalf.
With regard to his underlying offense,
appellant admitted he engaged in consensual sexual activity with an underage girl,
more than three years younger than himself, at a party where they were drinking and
taking illicit drugs. Appellant testified he had a problem with drugs he was unable to
control. He asked the court for another chance to get his life straightened out and to
allow him to receive treatment for his problems. Appellant=s father testified in support of
his son, describing his own problems with methamphetamine.
He further testified
appellant should not be sent to prison but instead should get the help he needs.
Appellant’s father’s testimony contains the statement, AHe=s [appellant] a good baby.
He=s been a good baby all of his life until that little heifer came into his life. And dang it,
y=all know how she was. I mean B .” The victim of appellant’s assault was twelve years
old at the time of the offense.
During the prosecutor’s closing argument, he mentioned the “little heifer”
statement, pointing to it as a part of appellant’s pattern of blaming others for his
As he announced appellant’s sentence, the trial judge commented on appellant’s
failure to take advantage of the opportunity afforded him by the court’s earlier deferral of
his adjudication and the community supervision program. The court also took note of
appellant’s father’s “little heifer” remark, stating: AI=ve had a 12-year-old daughter. And I
don=t feel nearly as hardBI mean, as kindly towards you as I do that 12-year-old girl. Her
description from a witness in this very chair where she was compared to an animal rings
in my ears, and I see my daughter there as a 12-year-old girl.@
The court rejected appellant’s argument for a sentence focusing on drug
treatment and, as noted, sentenced appellant to twenty-nine years in the Institutional
On appeal, appellant contends the trial judge’s comment referring to the judge’s
own daughter shows he considered evidence outside of the record when determining
appellant’s sentence, and shows the court’s “own bias” entered into his sentencing
A trial judge is given wide latitude to determine the appropriate sentence in a
given case. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984); Harvey v.
State, 173 S.W.3d 841, 850 (Tex.App.BTexarkana 2005, no pet.).
sentence will not be disturbed as long as it is within the proper range of punishment.
Jackson, 680 S.W.2d at 814. A trial judge=s decision on punishment is reviewed under
an abuse of discretion standard.
Id. A trial court abuses its discretion when the
decision lies outside the zone of reasonable disagreement. Apolinar v. State, 155
S.W.3d 184, 186 (Tex.Crim.App. 2005).
We initially note the trial court’s sentencing decision reflects no abuse of
discretion. In a revocation proceeding, the trial judge is the sole trier of the facts, and
determines the credibility of the witnesses and the weight to be given to the testimony.
Lee v. State, 952 S.W.2d 894, 897 (Tex.App.BDallas 1997, no pet.). The trial court was
free to accept the probation officer’s testimony that appellant was a poor candidate for
continued probation, and was free to find that conclusion reinforced by appellant’s
admitted violations of the conditions of his probation, including three additional
violations of law.
The sentence the court imposed is within the proper range of
See Tex. Penal Code Ann. ' 12.32 (Vernon 2003) (providing a
punishment range of imprisonment for life or any term of not more than 99 years or less
than 5 years); Jackson, 680 S.W.2d at 814 (noting discretion given trial court in
A neutral and detached judge is a fundamental component of the fair trial to
which appellant was entitled.
Dockstader v. State, 233 S.W.3d 98, 108
(Tex.App.BHouston [14th Dist.] 2007, pet. ref=d), citing Markowitz v. Markowitz, 118
S.W.3d 82, 86 (Tex.App.BHouston [14th Dist. 2003, pet. denied). In the absence of a
clear showing to the contrary, a reviewing court will presume that the trial court was
neutral and detached. Jaenicke v. State, 109 S.W.3d 793, 796-97 (Tex.App.BHouston
[1st Dist.] 2003, pet. ref=d).
To reverse a judgment on the ground of improper conduct or comments of the
judge, we must find (1) that judicial impropriety was in fact committed, and (2) probable
prejudice to the complaining party. Dockstader, 233 S.W.3d at 108. The scope of our
review is the entire record. Id.
Judicial remarks during the course of trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. Id. See also Garcia v. State, 246 S.W.3d 121, 147 (Tex.App.BSan
Antonio 2007, pet. ref=d) (noting same for recusal purposes). From our review of the
entire record, it is clear that, by stating he felt more “kindly” toward the twelve-year-old
victim of appellant’s assault than for appellant, the trial court merely was expressing his
disapproval of appellant’s father’s “little heifer” remark and its inference that the twelveyear-old was to blame for appellant’s conduct. The judge’s disapproving statement
does not support an assertion he was biased against appellant or impartial in his
Nor does the judge’s expressed mental comparison between the
victim and his recollection of his own daughter at that age constitute “evidence”
improperly considered in the sentencing decision.
We overrule appellant=s point of error and affirm the trial court=s judgment.
James T. Campbell
Do not publish.