                                NO. 07-08-00090-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                                     APRIL 27, 2010


                       BEAU JACKSON FUQUA, APPELLANT

                                           v.

                         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.


                              MEMORANDUM OPINION


       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

Justice.   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.
                                          Background


       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 re-

direct 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.




       1
         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).

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       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

conduct.


       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
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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

Division.


                                         Analysis


       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

decision.


       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.).               Generally, a

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

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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

punishment.       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

sentencing).


       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.




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       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 twelve-

year-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

decision-making.    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
                                                                     Justice




Do not publish.




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