NUMBER 13-09-168-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ROLAND R. FERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 187th District Court 

of Bexar County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Vela

Memorandum Opinion by Justice Vela

A jury convicted appellant, Roland R. Fernandez, of twelve counts of aggravated

sexual assault of a child, see TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2009), and

two counts of indecency with a child by exposure. See id. § 21.11(a)(2)(A). The jury

assessed punishment at twenty-five years’ imprisonment for each count of aggravated
This appeal was transferred to this Court from the Fourth Court of Appeals by order of the Texas 1

Supreme Court. See TEX. GOV’T CODE ANN. § 22.220 (Vernon 2004) (delineating the jurisdiction of appellate

courts); TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005) (granting the supreme court the authority to transfer

cases from one court of appeals to another at any time that there is “good cause” for the transfer).

Because the complainant, S.A., is a minor, we will refer to her by her initials. W e will also refer to 2

her mother by her initials to protect her privacy.

2

sexual assault of a child and five years’ imprisonment for each count of indecency with a

child. All of the sentences are to run concurrently. In five issues, appellant challenges the

factual sufficiency of the evidence to support his convictions and complains that this Court

lacks jurisdiction to hear this appeal. We affirm.1

I. FACTUAL BACKGROUND

A. State’s Evidence

When S.A. was four or five years old, her parents divorced, and she began living 2

in San Antonio with her mother, G.A. Because G.A. worked, S.A. spent every other

weekend at the home of G.A.’s sister-in-law, Salina Fernandez, and Salina’s husband,

appellant. S.A. testified appellant sexually abused her numerous times during the

weekends she spent with Salina and appellant. She did not remember the dates that the

abuse occurred; however, she testified the abuse happened when she was between five

and six years old in 1999 and 2000. When S.A. was twelve years old, she told her mother

some of the details about what appellant had done to her.

In May 2006, G.A. called the San Antonio Police Department to report a “sexual

assault” of S.A. Afterwards, Officer Gina Flores went to G.A.’s house and interviewed S.A.

Officer Flores testified that S.A. told her that the first incident of sexual abuse occurred:

when the aunt [Salina Fernandez] left, she [S.A.] was called to the bed. She

went to the bed and the suspect [appellant] took her shorts off. And I asked,

“What happened after that?” And she said . . . “That he started to touch me

and he put his finger down there.’” And I asked her, “Where down there?”

And she said, “In my vagina.”
The trial court admitted S.A.’s sexual-examination report into evidence as State’s exhibit 3. 3

Dr. Nancy Kellogg testified that Shirley Menard, a nurse practitioner, worked at ChildSafe for about 4

eight years and retired in 2007 “with medical issues.” Menard did not testify in this case. 

3

Officer Flores testified that S.A. told her about another incident when appellant “laid her on

the bed and he showed her his penis. . . . [H]e took her shorts off and that’s when he held

her down on her shoulders, and . . . he stuck his penis . . . in her vagina.” S.A. told Officer

Flores that the sexual abuse stopped when Salina divorced appellant. 

After Detective Jeffrey Lowder obtained statements from S.A. and G.A., he referred

both of them to the Children’s Advocacy Center for ChildSafe (“ChildSafe”). At some point,

appellant spoke to Detective Lowder about the allegations. With respect to this

conversation, Detective Lowder testified that: 

after I had read the allegations set forth by the victim, I allowed Mr.

Fernandez [appellant] to tell me if he could explain to me the allegations

themselves. And he basically told me he had no explanation why she was

coming forward and making such allegations in regards to the sexual nature

of the case.

During this conversation, appellant never said anything derogatory about S.A., and he

never tried to tell Detective Lowder why he thought S.A. would make these allegations.

Salina Fernandez testified that appellant permanently moved out of the house in

December 2000 and that she and appellant divorced in 2001. She testified that for the

period of time that S.A. was spending the weekends with them, appellant would stay home

when she left the house for an errand. On cross-examination, she testified that appellant

did not want to “stay home in charge of the kids.”

Dr. Nancy Kellogg, a professor of pediatrics who served as ChildSafe’s medical

director, reviewed S.A.’s sexual assault exam, which was performed on June 7, 2006 by 3

Shirley Menard. When the prosecutor asked Dr. Kellogg to read what S.A. “told the 4
4

examiner under the history portion” of the exam, she stated:

Because they’re going to check my privates, my uncle molested me. He

stuck his finger in my privates. He didn’t do it once. He did it a lot, like when

my aunt would leave. Wear shorts and he would take them off and my

underwear. He would unzip his pants and show himself. He would hold me

down. Sometimes he would lick me on the front private. He would stick his

penis in me, but not all the way in.

When the prosecutor asked Dr. Kellogg if S.A. “indicate[d] where he [appellant] would stick

his penis in her?”, she said, “Her front and back privates.” Dr. Kellogg stated that the

physical findings of S.A.’s sexual-assault exam were “normal.” However, she testified that

“in cases where we have history of penetration, we have somewhere in the neighborhood

of 85 to 90 percent of those exams are normal.” On cross-examination, when defense

counsel asked Dr. Kellogg, “[Y]our findings are consistent with the allegations. In other

words, they could have happened?”, she said, “The allegations could have happened.

Yes, that’s the medical opinion.”

B. Defense Evidence

Detective Lowder testified for the defense that S.A. told him “that the first time that

anything happened inappropriately, she was on her aunt’s [Salina’s] bed while her aunt

was taking a shower[.]” In that incident, appellant picked her up, placed her down, held her

down on the bed, took off her shorts and underwear, placed one of his fingers in her

vagina, and licked her vagina. Detective Lowder stated that the “second thing” S.A.

mentioned to him was an instance when she was in her cousins’ room, and appellant was

sitting in a chair. At that time, appellant exposed himself and told S.A. to kiss his penis.

When Detective Lowder asked S.A. whether anything happened in her cousins’ presence,

she responded with two separate incidents. First, while she and her cousins wrestled with

appellant, appellant placed one of his fingers inside of her vagina. Second, “while they
At the time of trial, R.F. was a minor. 5

At the time of trial, M.F. was a minor. 6

At the time of trial, P.F. was a minor. 7

5

would sit next to each other on the couch in the living room, he [appellant] would place his

hand inside her shorts and digitally penetrate her [S.A.].” She did tell him that appellant

“penetrated her bottom[.]” On cross-examination, he stated that S.A. never “deviate[d]

from the fact that she told [him] that [appellant] abused her with his penis and with his

finger and with his mouth[.]”

Appellant’s son, R.F., testified that he did not recall “wrestling around,” “playing 5

around,” or engaging in “horseplay” with S.A. or appellant. He recalled seeing nothing

suspicious between S.A. and appellant.

Appellant’s niece, M.F., testified that in 1997 when she was a young child, appellant

6

and Salina lived with her for a short time. M.F. stated that appellant never touched her or

did anything inappropriate during that time frame. She visited Salina and appellant at their

home in 1999 and 2000 and never saw any inappropriate behavior.

M.F.’s sister, P.F., testified that she was four years old in 1997. She remembered 7

appellant, his wife, and their children staying at the home in which she lived. She did not

remember appellant touching her sexually during that time.

Appellant testified that all of the allegations that S.A. made against him were false.

He testified that he never touched S.A. “in an inappropriate way” and that he never

exposed himself to her.

On cross-examination, appellant testified that about March 2000, he left the house

where he lived with Salina. When the prosecutor asked him, “Were you ever left alone with

the children, including [S.A.]?”, he said, “Yes, ma’am.” When asked if he would have been
6

the only adult with the children, he said, “Sometimes Tony was there and sometimes

Patricia, Salina’s sister was there.” He testified that his relationship with S.A. was

“relatively close.”

II. DISCUSSION

A. Sufficiency of the Evidence

In issue one, appellant challenges the factual sufficiency of the evidence to support

his convictions.

1. Standard of Review

In a factual-sufficiency review, the only question to be answered is: “Considering

all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a

reasonable doubt?” Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).

Evidence can be deemed factually insufficient in two ways: (1) “the evidence supporting

the conviction is ‘too weak’ to support the fact finder’s verdict;” or (2) “considering

conflicting evidence, the fact finder’s verdict is ‘against the great weight and preponderance

of the evidence.’” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (quoting

Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). When a court of

appeals conducts a factual-sufficiency review, it must defer to the jury’s findings. Id. The

court of criminal appeals has “set out three ‘basic ground rules’ implementing this

standard.” Id. (quoting Watson, 204 S.W.3d at 414). First, the appellate court must

consider all of the evidence in a neutral light, as opposed to in a light most favorable to the

verdict. Id. Second, the appellate court “may only find the evidence factually insufficient

when necessary to ‘prevent manifest injustice.’” Id. (quoting Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997)). Third, the appellate court must explain why the
7

evidence is too weak to support the verdict or why the conflicting evidence greatly weighs

against the verdict. Id. Although the verdict is afforded less deference during a factualsufficiency review, an appellate court is not free to “override the verdict simply because it

disagrees with it.” Id.

Our review of a factual sufficiency challenge should be examined under the

principles of review for a hypothetically correct jury charge. Grotti, 273 S.W.3d at 280-81.

“‘Such a charge [is] one that accurately sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof, or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.’” Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009)

(quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

2. Applicable Law-Aggravated Sexual Assault of a Child

In counts one through six and eight through thirteen, the jury convicted appellant of

twelve counts of aggravated sexual assault of a child. Section 22.021(a) of the penal code

provides, in relevant part, that a person commits the offense of aggravated sexual assault

of a child if the person:

(B) intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of a child

by any means;

(ii) causes the penetration of the mouth of a child by the sexual

organ of the actor;

(iii) causes the sexual organ of a child to contact or penetrate the

mouth, anus, or sexual organ of another person, including the

actor;

(iv) causes the anus of a child to contact the mouth, anus, or

sexual organ of another person, including the actor; or
8

(v) causes the mouth of a child to contact the anus or sexual

organ of another person, including the actor; and

(2) if:

* * *

(B) the victim is younger than 14 years of age. . . .

TEX.PENAL CODE ANN. § 22.021(a)(1)(B)(i)-(v), (2)(B). The testimony of a child victim alone

is sufficient to support a conviction for aggravated sexual assault of a child. Perez v. State,

113 S.W.3d 819, 838 (Tex. App.–Austin 2003, pet. ref'd); see TEX. CODE CRIM PROC.ANN.

art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.–Dallas 2002, pet.

ref'd).

a. Counts Three, Four, Ten, & Eleven

To prove counts three and ten as set forth in the charge, the State was required to

establish beyond a reasonable doubt that appellant “did intentionally or knowingly cause

the penetration of the female sexual organ of [S.A.], a child who was younger than 14

years, by [appellant’s] male sexual organ, . . . .” To prove counts four and eleven as set

forth in the charge, the State was required to establish beyond a reasonable doubt that

appellant “did intentionally or knowingly cause the female sexual organ of [S.A.], a child

who was younger than 14 years, to contact the male sexual organ of [appellant], . . . .“ 

S.A. testified that on one occasion, appellant took off her shorts and underwear and

that she saw his erect penis. She stated that appellant “placed it in my vagina, but he

didn’t place it all the way in where it could hurt.” When the prosecutor asked S.A. how

many times she recalled appellant placing his penis in her vagina, she said, “More than five

times.” Based upon S.A.’s testimony, a rational jury could reasonably conclude that while

S.A. was younger than fourteen years of age, appellant (1) caused the penetration of
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S.A.’s female sexual organ by his male sexual organ on at least two occasions and (2)

caused S.A.’s female sexual organ to contact his male sexual organ on at least two

occasions.

b. Counts One, Two, Eight, & Nine

To prove counts one and eight as set forth in the charge, the State was required to

establish beyond a reasonable doubt that appellant “did intentionally or knowingly cause

the penetration of the anus of [S.A.], a child who was younger than 14 years, by

[appellant’s] male sexual organ, . . . .” To prove counts two and nine as set forth in the

charge, the State was required to establish beyond a reasonable doubt that appellant “did

intentionally or knowingly cause the anus of [S.A.], a child who was younger than 14 years,

to contact the male sexual organ of [appellant], . . . .”

When the prosecutor asked S.A. “[c]an you tell us if he [appellant] ever placed his

penis anywhere else?”, she said, “Yes. In my bottom.” When asked if she was “familiar

with the word anus,” she said that she was. And, when the prosecutor asked her, “Is that

the area you’re talking about?”, she said, “Yes.” She testified that while she and appellant

were in Salina’s bedroom, “[m]y shorts were off and my underwear were off, and he had

turned me over and he was putting his penis in my bottom, and then he stopped, like he’s

always stopped.” When asked what she meant by “he always stopped,” she said, “Like he

would put it in, but he wouldn’t put it all the way to where it would hurt. And I felt that it was

wet and he was up.” She said that the “wetness” came from his penis and that when she

said that “‘he was up,’” she meant “that his penis was erect.”

Regarding the number of times this conduct occurred, we note that the prosecutor,

before questioning S.A. about appellant putting his penis in her anus, had questioned S.A.

about the number of times that appellant put his penis in her vagina. When the prosecutor
10

asked S.A. how many times appellant put his penis into her vagina, she said, “More than

five times.” After the prosecutor finished this line of questioning, he began questioning her

about the incidents when appellant put his penis in her anus. When the prosecutor asked

her how many times that happened, she said, “It was less than the other times” but “more

than one time.” By “other times” she was referring to the number of times appellant put his

penis in her vagina, which was “[m]ore than five times.” Based upon S.A.’s testimony, a

rational jury could reasonably conclude that while S.A. was younger than fourteen years

of age, appellant (1) caused his sexual organ to penetrate S.A.’s anus on at least two

occasions and (2) caused S.A.’s anus to contact his male sexual organ on at least two

occasions.

c. Counts Five and Twelve

To prove counts five and twelve as set forth in the charge, the State was required

to establish beyond a reasonable doubt that appellant “did intentionally or knowingly cause

the penetration of the female sexual organ of [S.A.], a child who was younger than 14

years, by [appellant’s] finger, . . . .” S.A. testified that while she and her cousins were

laying on a bed with the covers over them, appellant came into the bedroom and “put his

finger in my vagina.” She moved away from him, and he left the room. On another

occasion, she and appellant were in a bedroom while appellant slept on the bed. Her

cousins were also in this bedroom, playing video games. She testified that while she sat

on the bed, appellant “woke up and . . . like, put his hand in my shorts and he had put his

finger in my vagina, and it hurt so I moved away and I got up.” She recounted another

incident when her cousins were outside the house and Salina was at HEB. She said that

as she walked into Salina’s bedroom, appellant pulled down her shorts and underwear and

started “putting [his fingers] in my privates.” By “privates” she meant her “vagina area.”
11

She testified that she could feel his fingers inside of her vagina. When the prosecutor

asked her, “How many times did he do that to you?”, she said, “Well, that exactly, probably

a couple of times.” She also testified that “[i]t would sometimes happen in my cousins’

room.” When the prosecutor asked her to “[t]ell us about the time that it happened in your

cousins’ room[,]” she said that appellant was sitting in a rocking chair, watching TV. While

she sat on his lap, facing him, “he put his fingers in [her] vagina area.” She testified that

she felt his fingers inside of her vagina. When the prosecutor asked her, “Besides these

two times, did he ever put his finger in your vagina area as you described?”, she said,

“Yes.” However, she could not remember how many times this happened. When the

prosecutor asked her, “Could it be more than ten or less than ten?”, she said, “More than

five.” Based upon S.A.’s testimony, a rational jury could reasonably conclude that while

S.A. was younger than fourteen years of age, appellant on at least two occasions caused

the penetration of S.A.’s female sexual organ by his finger. 

d. Counts Six and Thirteen

To prove counts six and thirteen as set forth in the charge, the State was required

to establish beyond a reasonable doubt that appellant “did intentionally or knowingly cause

the female sexual organ of [S.A.], a child who was younger than 14 years, to contact the

mouth of [appellant], . . . .” When the prosecutor asked S.A. if appellant had ever touched

her with any other part of his body, she said, “His mouth.” She testified that appellant

“would put it on my vagina.” She stated that he did this “[m]ore than five times” while she

was on Salina’s bed. When the prosecutor asked if she “remember[ed] how . . . he put his

mouth on your vagina?”, she said he “would put his mouth and he would start licking me,

. . . .” Based upon S.A.’s testimony, a rational jury could reasonably conclude that while

S.A. was younger than fourteen years of age, appellant on at least two occasions caused
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S.A.’s female sexual organ to contact his mouth.

3. Applicable Law-Indecency With a Child by Exposure

In counts seven and fourteen, the jury convicted appellant of two counts of

indecency with a child by exposure. Section 21.11 of the penal code provides that a

person commits the offense of indecency with a child by exposure “if, with a child younger

than 17 years of age, . . . the person: . . . (2) with intent to arouse or gratify the sexual

desire of any person: (A) exposes the person’s anus or any part of the person’s genitals,

knowing the child is present: . . . .” TEX. PENAL CODE ANN. § 21.11(a)(2)(A); see

Breckenridge v. State, 40 S.W.3d 118, 128 (Tex. App.–San Antonio 2000, pet. ref’d). A

fact finder can infer the requisite, specific intent to arouse or gratify the sexual desire of any

person “from the defendant’s conduct, remarks, and all surrounding circumstances.” Id.

(citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981)). The testimony

of a child victim alone is sufficient to support a conviction for indecency with a child. Perez,

113 S.W.3d at 838; see TEX. CODE CRIM PROC. ANN. art. 38.07; Tear, 74 S.W.3d at 560.

To prove counts seven and fourteen as set forth in the charge, the State was

required to establish beyond a reasonable doubt that appellant “did, with the intent to

arouse or gratify the sexual desire of any person, expose part of his genitals, knowing that

[S.A.] a female child younger than seventeen (17) years and not the spouse of [appellant]

was present, . . . .” 

S.A. testified that on one occasion while her cousins played video games in the

living room, she was lying on the edge of Salina’s bed. She stated that appellant took off

her shorts and underwear and that she saw his erect penis. She stated that on another

occasion, she and appellant were in the living room, playing. During this encounter, she

said he “had his penis out” and asked her to kiss it. She refused and turned her head
13

away. When the prosecutor asked her, “Do you remember at that time when he had his

penis out, whether it was erect, whether it was up?”, she said, “Yes, I remember . . . .”

Based upon S.A.’s testimony, a rational trier of fact could find beyond a reasonable doubt

that appellant on at least two occasions, while knowing that S.A., a child younger than

seventeen years of age and not his spouse was present, exposed part of his genitals to

her with intent to arouse or gratify sexual desire.

In challenging the factual sufficiency of the evidence, appellant contends: (1) S.A.

was the only witness to testify that the sexual abuse occurred; (2) both Salina Fernandez

and her son, R.F., who were present when S.A. stayed the weekends at their house, never

“saw or perceived anything unusual” occur between S.A. and appellant; (3) there was no

physical evidence that any sexual assaults occurred; (4) S.A. told Detective Lowder that

the first time that appellant sexually abused her was when Salina was in the shower;

however, S.A. told Officer Flores that it happened when Salina left the house to run

errands; (5) appellant never threatened S.A. or told her anything “during most of the

episodes despite the fact that his sons were present and on occasion his wife,” Salina; (6)

S.A.’s father would sometimes stay with S.A. at the home of Salina and appellant; (7)

Salina testified that when S.A. stayed at her home, she “appeared” happy, well-adjusted,

and never tried to hide from appellant; (8) Salina testified that appellant did not like staying

at home with the kids “and would sometimes” do the errands and go to H.E.B.; (9) Salina’s

son, R.F., never saw anything suspicious or inappropriate between S.A. and appellant; (10)

S.A.’s sexual-assault exam was normal; (11) appellant denied that he had ever exposed

his genitals to S.A.; and (12) appellant denied that he had ever touched S.A. in a sexual

manner or in any inappropriate manner. Initially, we note that the jury is the sole judge of

the credibility of the witnesses and the weight to be given the evidence, and may choose
14

to believe all, some, or none of it. TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979);

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Rachal v. State, 917

S.W.2d 799, 805 (Tex. Crim. App. 1996). Thus, the jury is permitted to believe or

disbelieve any part of the testimony of any witness. Jones v. State, 984 S.W.2d 254, 258

(Tex. Crim. App. 1998); Perez, 113 S.W.3d at 838. “Reconciliation of evidentiary conflicts

is solely a function of the trier of fact”. Perez, 113 S.W.3d at 838 (citing Losada v. State,

721 S.W.2d 305, 309 (Tex. Crim. App. 1986)). The jury could have accepted that portion

of S.A.’s testimony as sufficient to support the convictions and disregarded the

inconsistencies. “A decision is not manifestly unjust because the jury resolved the

manifestly conflicting views of the evidence in favor of the State.” Cain, 958 S.W.2d at

409.

Viewing all of the evidence neutrally, we conclude that the evidence supporting the

convictions is not so weak that the jury’s determinations are clearly wrong and manifestly

unjust, or that the verdict is against the great weight and preponderance of the evidence.

We, therefore, hold that the evidence is factually sufficient to support the convictions for

indecency with a child by exposure and for aggravated sexual assault of a child. Issue one

is overruled.

B. Jurisdiction

In issues two through five, appellant challenges this Court’s jurisdiction over his

appeal. He contends that chapter 73 of the Texas Government Code violates the Equal

Protection Clause of the United States Constitution, because it does not give proper effect

to the voters of Texas who elect the justices of the intermediate appellate courts. See U.S.

CONST. amend. XIV.; TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005). He also argues that

this Court lacks jurisdiction over his appeal because the Texas Supreme Court’s order of
See also Arocha v. State, No. 08-07-00108-CR 2009 WL 1883733, at *4 (Tex. App.–El Paso June

8

30, 2009), (mem op.) (not designated for publication); pet. dism’d improvidently granted, 2010 WL 2618421

(Tex. Crim. App. June 30, 2010). In Arocha, the Court of Criminal Appeals granted discretionary review to

determine whether the Eighth Court of Appeals erred in rejecting Arocha’s jurisdictional arguments on the

basis of a procedural default, however, upon reviewing the record, it concluded that granting Arocha’s petition

was improvident. Arocha v. State, (No. PD-1189-90) 2010 W L 2618421 (Tex. Crim. App. June 30, 2010).

15

transfer is unconstitutional under the Texas Constitution due to a conflict between the

Texas Constitution and chapter 73 of the Texas Government Code. He further argues that

this Court lacks jurisdiction over his appeal because the order of transfer violates the Equal

Protection and Due Course of Law provisions of the Texas Constitution and is a void

exercise of legislative authority over the judiciary in violation of the Separation of Powers

provision contained in article II, section 1 of the Texas Constitution. See TEX. CONST. art.

II § 1. He requests that we transfer this appeal back to the Fourth Court of Appeals.

The Texas Supreme Court may transfer cases to this Court, pursuant to section

73.001 of the Texas Government Code, “at any time that, in the opinion of the supreme

court, there is good cause for transfer.” TEX. GOV’T CODE ANN. § 73.001. Section 73.002 8

of the government code provides that the transferee court of appeals “has jurisdiction of

the case without regard to the district in which the case originally was tried and to which

it is returnable on appeal.” TEX. GOV’T CODE ANN. § 73.002. Appellant argues his

constitutional issues as challenges to our jurisdiction. Generally, a party is not required to

preserve a challenge to the court of appeals’ jurisdiction. See; e.g., Arocha v. State, No.

08-07-00108-CR 2009 WL 1883733, at *5 (Tex. App.–El Paso June 30, 2009) (mem op.)

(not designated for publication); pet. dism’d improvidently granted, 2010 WL 2618421 (Tex.

Crim. App. June 30, 2010). However, the Eighth Court of Appeals in Arocha concluded

that constitutional jurisdictional challenges such as this must be preserved, because

“[e]ven if section 73.001 is unconstitutional as applied to [Arocha], we would not be

divested of jurisdiction” under section 73.002. Id. 
16

The proper procedure for obtaining a transfer between appellate courts is by motion

to the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001. The Texas Supreme

Court has established the following procedure for a transfer:

The party requesting transfer should file a copy of the motion to

transfer in each of the two courts of appeals, asking that, when the motion

is forwarded to the Supreme Court, each court of appeals advise the

Supreme Court in writing whether it has any objection to the proposed

transfer. Any briefs in favor of the proposed transfer should also be filed in

each court of appeals and forwarded with the transfer motion. We will then

have the motion, the briefs, and the comments of the two courts of appeals

in determining whether to grant the motion to transfer.

Id. (citing Miles v. Ford Motor Co., 914 S.W.2d 135, 137 n.2 (Tex. 1995)). Failure to follow

the established procedure results in failure to preserve complaints about the transfer of an

appeal. See id. 

If appellant had followed the required procedure by filing a motion to transfer, his

complaints about the constitutionality of section 73.001 would be remedied. Id.

Alternatively, if his motion to transfer was denied, this Court would be in a position to

address the constitutional issues. Id. We conclude appellant did not follow the proper

procedure requesting transfer, and therefore, his complaint is not preserved. We overrule

issues two through five.

III. CONCLUSION

We affirm the trial court’s judgment. 

ROSE VELA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

19th day of August, 2010.