COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

DONAL D HOUSTON HODGE S, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00112- CR

Appea l from County Court at L aw No. 12 of B exar County , Texas (TC # 989339)

O P I N I O N Donald Houston Hodg es appea ls his conviction of assault causing bodily injury

. After a jury found Appellant g uilty , the trial court assessed his punishment at a fine of $700 and confine ment for

one y ear , but the court suspended the sentenc e and place d Appellant on community supervision for two y ear s. We affirm. F ACTUAL SUMMA RY I n the ea rly evening hours of Nove mber 16, 2006, Bar bara Miller was walking home from Walgr een’ s. Another neig hbor, W en d y Arnold, drove up and Miller stopped to visit with her. Arnold drove awa

y and Miller walked by Appellant’s home on the g rass about two to three fee t from the curb beca

use there was no sidewalk. When she saw Appellant staring at her from his drivewa y , she g ree ted him. Appellant told Mil ler that she w as trespa ssing. He then ra n over to her, g rabbe d her by the throat, and picked her up off of the g round. Miller could not brea the and she fe ar ed Appellant was g oing to kill her. Appellant put her down but maintained his g rip on her throat while continuing to tell her th at s he was trespassing

. He then took Miller over to his drivewa y and slammed her fac e into his car . After she reg ained her balanc e and attempted to stand up, Appellantslammed her fac e-f irst into the g round. When Miller g ot up, she told Appellant she was g oing to call the police. She then ran into her home and t o l d h er n ep h ew, Daniel Having , to call 911. San Antonio Police Offic er Richard Sanchez arr ived and found Miller bleeding fro m t h e fa ce . After speaking with Mill er a

nd other witnesse s, Sanchez arr ested Appe llant. CHALLENGE TO TH E TRANSFER ORDER I n Points of Error Two throug h Five, Appellant contends we lack jurisdiction of the appea l beca use the order issued by the Texas Supreme Court transfe rring the appea l from the San Antonio Court of Appeals to the Ei g hth Court of Appeals is void. More specific ally , he arg ues i n Point of Error Two that Section 73.001 of the Texas Gover nment Code violates the Equal Protection Clause 1 of the United States Constit ution beca use it does not g ive proper eff ect to the Texas voters who elec t the justices of the intermediate appellate courts. I n Point of Error Three , he claims the transfe r order is void becau s e S ec t ion 73.001 conflicts with the provisions of the Texas Constit ution g iving the Court of Criminal Appea ls exclusive authority to deter mine criminal law matters. I n Point of Error Fo u r, Appellant maintains that we lack jurisdiction beca use the transfe r order violates the Equ al Protectio n and Due Course of L aw provisions in the Texas Constit ution. Finally , Appellant challeng es our jurisdiction on the g round that Section 73.001 violates the separ ation o f p ower s provision found in Article 2, Section 1 of the Texas Constit ution. Appellant reque sts that we transfe r the case back to the Four

th Court of Appea ls. The State responds that Appellant failed to pr eser ve

er ro r by following the procedure established by the Tex as S upreme Court in Miles v. Ford Mot o r Company , 914 S.W .2d 135, 137 (Tex.1995). The Supreme Court transfe rre d sever al appea ls, including the instant appea l , t o t h i s court

T h e s u p r e m e c o u r t m a y o r d e r c a s e s t r a n s f e r r e d f r o m o n e c o u r t o f

a p p e a l s t o a n o t h e r a t a n y t i m e t h a t , i n t h e 1
o p i n i o n o f t h e s u p r e m e c o u r t , t h e r e i s g o o d c a u s e f o r t h e t r a n s f

e r . T E X . G O V ’ T C O D E A N N . § 7 3

. 0 0 1 ( V e r n o n 2 0 0 5 )

.pursuant to Section 73.001 of the Texas Gover nment Code. M I S C . D O C K E T O R D E R 09-9049 (Tex. Marc h 31, 2009). I n Arocha v. State , a defe ndant raised the same issues reg arding the transfe r order

. Arocha v. State , No. 08-07-00108- CR, 2009 WL 1883733 (Tex.App.--El Paso June 30, 2009, pet. g rante d). W e h el d t hat the defe ndant was require d to prese rve those arg uments by following the proce dure outlined by the Texas Supreme Court in Miles

. Id. at *5. Acc ording to Miles , the proper proce dure f

or obtaining a tra

nsfer is by motion: The party reque sting a transfe r should file a copy of the motion to transfe r in eac h of the two courts of appea ls, asking that, when the motion is forwa rded to the Supreme Court, eac h court of appea ls advise the Supreme Court in writing whether it has any objection to the proposed transfe r. Any bri ef s i n favor of the proposed transfe r should also be filed in eac h court of appea ls and forwa rded with the transfe r motion. We will then have the motion, the briefs, and the comments of the two courts of appea ls in determining w hether to gr ant the motion to transfer

. Miles , 914 S.W .2d at 137 n.2. Prior to the issuance of our decision in Arocha , Appellant filed wi t h the Supreme Court a “Specia l Appea

ranc e and Objection to Case Transf er of Case from Courts of Appea ls.” We rec eived

a courte sy copy on May 4, 2009. The Supreme Court denied the objection on J une 17, 2009. M I S C . D O C K E T O R D E R 09-9098 (Tex. J une 17, 2009). The specia l appea ranc e and objection filed with the Supreme Court does not comply with the proce dures set forth in Miles beca use Appellant did not file
a mot ion to transfe r i n t h i s court and, to our knowledge , he did not file a motion to transfe r i n the Four th Court of Appea ls. The Supreme Court could have denied Appellant’s objection beca use he fa i l ed t o follow the specifie d proce dure. For that rea son alone, we believe Appellant has n o t prese rved the complaints prese nted in Points of Error Two throug h Five. Additionally , we note that the objection filed with the Supreme Court is limit ed to arg uin g that the transfe r order is void beca use the Court of Criminal Appe als has exclusive authority to deter mine criminal law matters. That objection would not prese rve the complaints raised in Points of Error Two, Four , and Five. SeePena v. State , 285 S.W .3d 459, 464 (Tex.Crim.App. 2009)(r equiring the substance of the objection

at trial to comport with that on appe al; otherwise the matter is waive d). Assuming Appellant’s objection prese rved the arg ument raised in Point of Error Three , we find it is without merit

. Appellant arg ues that we lack jurisdiction of the appea l beca use Section 73.001 conflicts with the provisions of the Texas Constit ution g iving the Court of Criminal Appea ls exclusive authority to deter mine criminal law matters. Our jurisdiction is d ef i n ed by the Texas Constit ution and by statute. See T E X .C O N S T . art. V, § 1 (cour ts in which judicial power is vested), T E X .C O N S T . art. V, § 6 (cour ts of appea ls); T E X .G O V ’ T C O D E AN N . § 21.001 (Ve rnon 2004)(inher ent power and duty of courts), T E X .G O V ’ T C O D E A N N . § 22.220 (civil jurisdiction), T E X .G O V ’ T C O D E AN N . § 22.201 (Ve rnon Supp. 2009) (cour ts of appea ls districts), T E X .G O V ’ T C O D E AN N . § 22.221 (writ power ), T E X .G O V ’ T C O D E AN N . §§ 73.001-7 3 .002 (Ve rnon 2005)(tra nsfer of courts of appea ls’

case s); T E X .C O D E C R I M .P R O C .AN N . art. 4.01 (Ve rnon 2005)(pr oviding that courts of appea ls have jurisdiction in criminal actions); T E X .C O D E C R I M .P R O C .AN N . art. 4.03 (providing that “[t] he Courts of Appea ls sha ll have appellate jurisdiction c oextensive w ith the limit s of their respe ctive districts in all criminal case s except those in which the death penalty has been assessed.” ). Article V, Section 6 o f the Texas Constit ution expressly provides that the court of appea ls “shall have s u ch o t h er jurisdiction, orig inal and appellate , as may be presc ribed by law.” T E X .C O N S T . art. V, § 6. Section 73.002 of the Gover

nment Code provides that the court of appea ls to which a case is transfe rre d has jurisdiction of the case without reg ard to the district in which the case orig inally was t ri ed an d t o which it is returna

ble on appea l. T E X .G O V ’ T C O D E AN N . § 73.002(a) (Ve rnon 2 0 0 5 ). Even if we d et er m i n ed that Section 73.001 conflicts with the constitutional provisions g ranting the Court of Criminal Appea ls’ exclusive jurisdiction over criminal law matters, we would not lack jurisdiction of the appea l beca

use it has been provided for by statute. See Arocha , 2009 WL 1883733 at *5; seealso Simmons v. State , No. 07-07-0282- CR, 2009 WL 2341921 (Tex.App.--Ama rillo J uly 30, 2009, pet. ref ’d)( reje cting arg uments t h at t ra n s fer of appea l violated the Texas Constit ution). Points of Error Two throug h Five a

re ove rruled. CONTINUANCE I n Point of Error One, Appellant arg ues that the trial court abused its discr etion by deny ing his motion for continuance and continuing the trial in Appellant’s absenc e. A trial court’s ruling on

a motion for continuance is r eviewe d for an abuse of discretion. Vasquez v. State , 67 S.W .3d 229, 240 (Tex.Crim.App. 2002); W right v. State , 28 S.W .3d 526, 532 (Tex.Crim.App. 2 0 0 0 ). To establish an abuse of discretion, an appellant m u st show that the denial of his motion resulted in
actua l prejudice

. Id. Article 33.03 provides that in a misdemeanor case wher e the punishment is imprisonment in jail, the defe ndant must be persona lly prese nt at trial; but if he voluntarily absents himself afte r pleading to the information or indictment, the trial may p roce ed to its conclusion. T E X .C O D E C R I M .P R O C .AN N . art. 33.03 (Ve rnon 2006). We revie w a trial court’s deter mination that

a defe ndant has voluntarily absente d himsel f fr o m t ri al under the abuse of discretion standard. Moore v. Stat e , 670 S.W .2d 259, 261 (Tex.Crim.App. 1984). Gene rally , the t rial court ab u s es i t s discretion if its decision or acti o n is arbitra ry , unrea sonable, and made without ref ere nce to any g uiding rules or principles. Pena v. S t a t e , 155 S.W .3d 238, 243-44 (Tex.App.--El Paso 2004, no pet.), citing Montgomery v. State , 810 S.W .2d 372, 391 (Tex.Crim.App. 1991). I n the context of an

asser ted violation of Article 33.03, we will not disturb the trial court’s ruling if there is no evidenc e to ref ute the trial court’s deter

mination that a defe ndant’s absenc e is voluntary

. Moore , 670 S.W .2d at 261. The g uilt-innocence phase of the ju ry t ri al b eg an on November 17, 2008 and continued throug h November 20, 2008. Appellant was prese nt for t h e fi rs t two day s of trial but he did notappea

r on the third day , November 19. At this point, the State had rested and the defe nse had beg un prese nting ev idence

. Def ense counsel informed the court that he had spoken on the telephone to Appellant’s ex-wife, Arlene Hodg es, and she had repor tedly taken him to University Hospital. Ms. Hodg es had testified the previous day that Appellant had been ill for the previous y ear with Hepa titis C and has liver damag e. She rela ted that Appellant had been taking something “like chemo” and he had interna l bleeding on one occ asion four months ea rlier. When the trial judge asked defe nse counsel t o prese nt evidenc e establishing the nature of Appellant’s medical condition, counsel ref err ed to Ms. Hodg es’ testimony

. Counsel also stated he had a letter from Appellant’s doctor but he did not believe he could show it to the trial court beca use

o f “H I P AA laws.” The trial court briefly rec essed to allow defe nse counsel to obtain mor e i nformation. After the rec ess, counsel informed the court that he had spoken with Ap p el l an t

. Appellant did not intend to testify and he had not y et been seen by a d o ct o r b u t wa s at University Hospital. The trial court conclude d, based on the information available at that point, that Appellant had voluntarily absente d himself and th e case would proce ed without him. Def ense counsel then asked for a continuance on the g round that it was a medical emer g ency . The trial court g rante d the motion and co n t i n u ed t he case until the following morning

. The following day , November 20, defe nse counsel announce d they wer e not rea dy to proce ed beca use Appellant was still hospitaliz ed at Univer sity

Medica l Center. The trial court then sta ted the following : Okay

. We discussed this y esterda y and we rea ched an ag ree ment afte r g rea t leng th, afte r an hour and a half of try ing to deter mine what the true circ umstances wer e. And y our client indicated to y ou, at least y ou repr esente d to me as an office r of the Court that if his medical situation was such that he could not attend today he would permit y ou to proce ed without him. Are y ou rea dy to proce ed, Mr. Richa

rdson? Def ense coun s el s t ated he was not rea dy to proce ed without Appellant prese nt and the trial court stated:And y ou also told this Court that if I would continue it until this morning , which I

did, I g rante d y our continuanc e y esterda y when I had a jur y waiting

.

* * * You said that we could proce ed this morning , there would be no problem to proce ed without y our client a

t 8:30. Def ense counsel t hen presented the court with a mot ion for continuance. Attache d to the m otion is a letter signe d by “L

. Das, MD” stating that Appellant was seen at th e “ExpressMed” on November 19, 2008 and he would be under medical car e in the hospital until November 21, 2008. The trial court denied the motion based on Appellant’s repr esenta tion the previous day that the trial could proce ed in his absenc e in the event he could not be prese nt on November 20. The defe nse rested, both sides closed, and final ar g ument proce eded in Appellant’s absenc e. Appellant was prese nt at the p u n i s h m en t p h ase of trial on Dec ember 12, 2008. Def ense counsel moved for a mistrial on the g round that the court had deter mined Appellant’s absenc e to be voluntary , but he did not present a

ny evidenc e in support of that motion. Po i n ting to the evidence showing he has a chronic illness and was hospitaliz ed, Appellant maintains that the rec ord contains evidenc e ref uting the trial court’s deter mination that his absenc e

was voluntary

. There is no evidence , howeve r, that Appe llant was in the hospital a s a result of, or for trea tment of, his chronic illness. The trial court asked defe nse counsel more than once to prese nt evidenc e showing the nature of Appellant’s illness and the rea son for his hospitaliz ation, but counsel failed to do so. I mplicit in Appellant’s ar gu m en t is the notion that evidenc e of hospitaliz ation is alway s suffici en t to establish the absenc e is involuntary , but case law does not support this assumption. See e.g., Bottom v. State , 860 S.W .2d 266, 267 (Tex.App.--F ort W o rt h 1 9 9 3, no pet.)(c ontinuing trial in the absenc e of defe ndant, who was in the hospital beca use he had attempted suicide or some ha

rm to himself, was not a

n abuse of discre tion; defenda nt was pre sent when jurywas sele cted a nd his a bsence was voluntary to the extent that he chose to ing est larg e quantities of aspirin and arthritis medicatio n ) ; s e e also Maines v. State , 170 S.W .3d 149, 150 (Tex.App.--Ea stland 2005, no pet.)(de termining that defe ndant voluntarily absente d himself from trial when he chose to overdose on presc ription drug s); Heard v. State , 887 S.W .2d 94, 98-99 (Tex.App.--Te x arka na 1994, pet. ref’d )( h o l d ing absenc e voluntary when cause d by self-induc ed intox icated condition). I n the absenc e of some evidenc e that Appellant’s absenc e was involuntary , we are unable to f ind tha t the trial court a

bused its discretion. Even if the trial court abused its discretion by continuing the trial in Appellant’s absenc e, we would not reve rs e fo r a v i olation of Article 33.03 unless we deter mine that the err or aff

ecte d a substantial rig ht. T E X . R. A P P . P. 4 4.2(b); Tracy v. State , 14 S.W .3d 820, 827 (Tex.App.--Da llas 2000, pet. ref ’d)( finding violation of Article 33.03 to be statutory err or and apply ing Rule 44.2 (b )). A substantial rig ht is affe cted whe n the err or (1) had a “substantial and injurious” eff ect or influenc e in deter mining the jury ’s verdic t or (2) leave s one in g rave doubt conce rning whether it had such an eff ect

. Tracy , 14 S.W .3d at 827. A substantial rig ht is not aff ecte d and the err or is harmless if, afte r revie wing the entire rec ord, we deter mine the err or did not influence , or had only a slight influence ,
on the trial’s outcome. Id

. Appellant’s brief does not addre ss the harm analy sis, but the State arg ues any err or is harmless unde r Rule 44.2(b). Appellant was prese nt for trial from its commence ment, voir dire, the State’s case -in-chie f, and defe nse’s prese ntation of evid en ce , an d the punishment phase. He was absent only for final arg ument and announce ment of the jury ’s verdic t at the conclusion of the g uilt-innocence phase of trial. During the discussion about Appellant’s absenc e, his att o rn ey i nformed the court that Appellant did not wish to testify

. There is no evidenc e in the rec ord that, as a result of his absenc e, Ap p el l an t wa s unable to assist counsel. Consequently , we find that any err or which might haver e s u lt e d from proce eding with final arg ument in Appellant’s absenc e is harmless under Rule 44.2 ( b )

.

See Tracy , 14 S.W .3d at 827. We overr ule Appellant’s first point of err or and aff irm the judgme nt of the trial c ourt. Aug ust 18, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)