                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-16-00126-CR
                                   ________________________


                            DUSTIN MERLE WHALEY, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE



                              On Appeal from the 47th District Court
                                       Potter County, Texas
                    Trial Court No. 70,323-A; Honorable Dan Schaap, Presiding


                                             July 24, 2018

                                 MEMORANDUM OPINION
                        Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       Pursuant to an open plea of guilty, Appellant, Dustin Merle Whaley, was convicted

of evading arrest with a vehicle, a third degree felony.1 Punishment was assessed by the

trial court at six years confinement and a $500 fine. By two issues, Appellant (1) questions



       1   TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2017).
the procedure for presentment of an indictment and whether the trial court had jurisdiction

where an indictment was merely “filed” and (2) posits that if the procedure followed is

accepted as proper presentment, he was denied his rights under the Equal Protection

Clause of the United States Constitution.         He seeks dismissal of the underlying

indictment. We affirm.


       BACKGROUND

       Appellant was indicted for evading arrest with a vehicle. Pursuant to an open plea

of guilty, he was convicted of the offense. He does not challenge the sufficiency of the

evidence to support his conviction. His issues relate to presentment of the indictment

and concomitantly, the trial court’s jurisdiction over the case.


       APPLICABLE LAW

       “An indictment is ‘presented’ when it has been duly acted upon by the grand jury

and received by the court.” TEX. CODE CRIM. PROC. ANN. art. 12.06 (West 2015). “When

the indictment is ready to be presented, the grand jury shall through their foreman, deliver

the indictment to the judge or clerk of the court. At least nine members of the grand jury

must be present on such occasion.”         Art. 20.21.   The fact of a presentation of an

indictment shall be entered in the “record of the court.” Art. 20.22.


       ISSUE ONE—PRESENTMENT OF AN INDICTMENT

       At the commencement of the hearing on Appellant’s open plea of guilty, the trial

court announced, “it appears the Grand Jury of Potter County has returned an indictment

against you alleging a felony offense of evading arrest or detention with a vehicle.”




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Appellant acknowledged the trial court’s announcement without making any objections

and the trial court proceeded with the customary admonishments.


        Appellant concedes that the indictment complied with articles 12.06 and 20.21 of

the Code. His issue is whether the trial court had jurisdiction over the case when the

record only reflects filing of the indictment and not direct evidence of presentment.2

According to his brief, despite his request that the appellate record include the trial court’s

docket sheet, no docket sheet or other documents indicating presentment appear in the

trial court clerk’s file. The State responds that “[a]fter an exhaustive search, it has been

determined that the Orders of Court/Docket Sheet has gone missing for this case after

the record was checked out for the inmate withdrawal of funds order.”


        Article V, section 12(b) of the Texas Constitution vests the trial court with

jurisdiction over a case when an indictment is presented to the court by a grand jury. TEX.

CONST. art. V, § 12(b). In Casey v. State, 414 S.W.2d 657, 658 (Tex. Crim. App. 1967),

the Court found that the language “presentment of this indictment” contained in the

indictment satisfied the presentment requirement. In State v. Dotson, 224 S.W.3d 199,

204 (Tex. Crim. App. 2007), the Court concluded that “an original file stamp of the district

clerk’s office is strong evidence that a returned indictment was ‘presented’ to the court

clerk within the meaning of Article 20.21.”


        The indictment in this case alleges that “on or about the 6th day of March 2016,

and before the presentment of this indictment,” Appellant intentionally fled from a peace



        2Appellant concedes that to challenge the indictment as being improper would most likely result in
wavier. Instead, he challenges the trial court’s jurisdiction which may be raised for the first time on appeal.

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officer while using a vehicle. The indictment is signed by the foreperson and is file-

stamped “CAROLINE WOODBURN, DISTRICT CLERK, POTTER COUNTY, TEXAS”

dated “MAY 20, 2015 AM 11:54.” The indictment also bears the initials of a deputy clerk.

Article 20.21 provides the disjunctive conjunction “or” in requiring delivery of the

indictment to the judge or clerk of the court. On its face, the indictment was presented in

compliance with article 20.21.


       Disagreeing, Appellant, relies on Flores v. State, 143 Tex. Crim. 382, 158 S.W.2d

1012 (Tex. Crim. App. 1942), and argues that “filing does not equate to presentment.” In

Flores, the indictment failed to allege that the offense charged was committed “anterior”

to its presentment—an error Flores claimed was fundamental. The Court observed that

the indictment showed the offense was committed on March 1, 1941, and the indictment

was presented on April 1, 1941—affirmatively showing the offense was “anterior” to

presentment.3 The Court found that “[t]he filing of an indictment, unless some error is

shown, is evidence of its presentment by a grand jury, and unless thus presented no filing

should be shown.” Id. at 1013.


       Here, Appellant concedes the indictment complies with articles 12.06 and 20.21 of

the Code. No error being reflected in the indictment, its filing was strong evidence of

presentment under Dotson, 224 S.W.3d at 204.


       Article 20.22 of the Code requires the fact of a presentment to be entered upon the

record of the court. The statutory purpose behind article 20.22 is to “ensure that persons


        3 Flores had relied on Meadows v. State, 137 Tex. Crim. 91, 128 S.W.2d 414 (1939), in which the

complaint was made and filed on the same day that it was alleged the offense was committed—an
erroneous complaint because the date of the offense must be anterior to presentment of the indictment.
See Flores, 158 S.W.2d at 1012-13.

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are tried only under true bills.” See Crenshaw v. State, No. 13-00-692-CR, 2002 Tex.

App. LEXIS 3770, at *11 (Tex. App.—Corpus Christi May 23, 2002, pet. ref’d) (mem. op.,

not designated for publication) (citing Reese v. State, 142 Tex. Crim. 254, 151 S.W.2d

828 (Tex. Crim. App. 1941)); Hawkins v. State, 792 S.W.2d 491, 493-94 (Tex. App.—

Houston [1st Dist.] 1990, no pet.). Without a complaint from a defendant that he was not

tried under a true bill, only a technical violation of article 20.22 occurs and such a violation

has been held to be “merely directory despite the use of” mandatory wordage. Jenkins

v. State, 468 S.W.2d 432, 435 (Tex. Crim. App. 1971) (finding mandatory language in

article 20.20 (preparation of an indictment) to be directory and not mandatory).


       In this case, the missing docket sheet merely prevents us from knowing if the trial

court recorded presentment of the indictment in its internal docket sheet. It does not

establish a lack of presentment, nor does it establish whether the presentment was

entered into the “record of the court” maintained by the trial court clerk. Appellant does

not dispute that the grand jury voted to true bill him, nor does he dispute whether the trial

court clerk maintained a record of the official filings in his case. Having found strong

evidence of presentment when the indictment was delivered to the Potter County District

Clerk and duly file-marked, the lack of supporting documentation in the trial court’s

records is rendered harmless as the language in article 20.22 has been found to be

directory and not mandatory. Issue one is overruled.


       ISSUE TWO—DENIAL OF EQUAL PROTECTION

       The Fourteenth Amendment to the United States Constitution affords any person

equal protection of the laws. U.S. CONST. XIV. Appellant concedes he faces an “uphill

climb” in prevailing on his equal protection argument. He analogizes presentment of an

                                               5
indictment to presentment of a motion for new trial and argues that the disparity with which

each is reviewed violates equal protection.


       A motion for new trial that is not brought to the attention of the trial court is

disfavored on appeal. See generally Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim.

App. 2005) (holding that presentment of a motion for new trial must give the trial court

actual notice of a timely-filed motion).          Appellant maintains that if presentment

requirements are not identically enforced, it is tantamount to a denial of equal protection.


       The State counters that Appellant’s equal protection argument was not preserved

for review. See Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (finding

that alleged violations of a defendant’s rights under the Equal Protection Clause must be

preserved or be subject to forfeiture on appeal). See also Helsley v. State, No. 07-15-

00350-CR, 2017 Tex. App. LEXIS 1986, at *3-4 (Tex. App.—Amarillo March 8, 2017, pet.

ref’d) (mem. op., not designated for publication). Notwithstanding Appellant’s compelling

argument, we agree with the State that issue two was not preserved for review.


       After briefs were filed in this appeal, this court issued its opinion in Mayes v. State,

536 S.W.3d 102, 107 (Tex. App.—Amarillo 2017, pet. ref’d), in which identical issues to

those now raised by Appellant were resolved against Mayes.               Mayes argued that

presentment of his indictment was insufficient to confer jurisdiction without more than

mere filing and that he was denied equal protection. Here, as in Mayes, we find that

verifiable evidence of presentment is not required to satisfy article 20.21. See id. at 107-

08. See also Helsley, 2016 Tex. App. LEXIS 1986, at *1-2. Also, Appellant’s failure to

object at his plea hearing that he was denied equal protection of the law because of the


                                              6
disparity in the procedures for presentment of a motion for new trial and presentment of

an indictment waives his argument. Id. at 108. Issue two is overruled.


      CONCLUSION

      The trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                    Justice


Do not publish.




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