Jacob Mediano v. State ( 2017 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00211-CR
Jacob Mediano, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
NO. D-14-1052-SB, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted Jacob Mediano of aggravated sexual assault of a child. See Tex.
Penal Code § 22.021(a)(2)(B). Punishment was assessed at fifty years’ imprisonment. In two issues
on appeal, Mediano contends that the district court lacked jurisdiction because there was no evidence
of “actual presentment” of his indictment and alternatively, if his indictment was properly presented,
such presentment violated his right to equal protection. We will affirm the district court’s judgment.
BACKGROUND
The record reflects that Mediano was indicted by a grand jury for aggravated sexual
assault of a child after his 13-year-old niece gave birth to a baby and DNA tests showed that
Mediano could not be excluded as the father of the child.1 Mediano’s indictment stated, in relevant
part:
The Grand Jurors for the County of Tom Green, State of Texas, duly selected,
impaneled, sworn, charged and organized as such at the July Term 2014, of the 119th
District Court of said County, upon their oaths present in and to said Court, that
JACOB MEDIANO, Defendant on or about the 15th day of July, 2013, and before
the presentment of this indictment, in said County and State, did then and there
intentionally or knowingly cause the penetration of the sexual organ of [victim], a
child who was then and there younger than 14 years of age and not the spouse of the
defendant, by the defendant’s sexual organ; AGAINST THE PEACE AND
DIGNITY OF THE STATE.
A jury unanimously found Mediano guilty of aggravated sexual assault of a child as alleged in the
indictment, and the district court assessed his punishment at fifty years’ imprisonment. Mediano
filed a one-sentence motion for new trial contending that the verdict was contrary to the law and
evidence. His motion was overruled by operation of law. This appeal followed.
DISCUSSION
Presentment of indictment
In his first issue, Mediano contends that there was no proper presentment of his
indictment and the district court lacked jurisdiction because there was no evidence of “actual
presentment.” Our sister court considered this argument in Helsley v. State, a similar appeal from
a conviction for sexual assault of a child. See Helsley v. State, No. 07-15-00350-CR, 2017 Tex. App.
1
The jury heard forensic DNA analyst Rachel Burch testify that 99.999998% of the male
population is excluded from the possibility of being the biological father of the victim’s child.
2
LEXIS 1986, at *1-3 (Tex. App.—Amarillo Mar. 8, 2017, pet. filed) (mem. op., not designated for
publication). Here, like the appellant in Helsey, Mediano states:
“Filing” and “presentment” are distinct concepts. Jurisdiction vests on presentment
of an indictment, i.e., one “duly acted upon” by the grand jury and received by the
court. “Duly acted upon” includes the indictment’s delivery by the foreman to the
judge or court clerk. The court’s records must note presentment; here they reflect
only filing. Absent positive evidence of actual presentment recorded by the judge or
court clerk—which “presentment” strictly requires—did jurisdiction lie below?
Id. at *1.
Presentment occurs when an indictment is delivered “to the judge or clerk of the
court.” Tex. Code Crim. Proc. art. 20.21 (“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.”); State v. Dotson,
224 S.W.3d 199, 204 (Tex. Crim. App. 2007). Presentment of an indictment to a court vests the
court with jurisdiction of the cause. Tex. Const. art. V, § 12(b); Dotson, 224 S.W.3d at 204; Helsley,
2017 Tex. App. LEXIS 1986, at *1. A signed indictment featuring 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 of the Code of Criminal Procedure. Dotson, 224 S.W.3d at 204
(indictment bearing original file stamp “convincingly show[ed] the presentment requirement was
satisfied”); Helsley, 2017 Tex. App. LEXIS 1986, at *2.
The record reflects that Mediano’s indictment was issued by a grand jury and signed
by its foreman. The face of the indictment bears the stamp of Sheri Woodfin, the District Clerk of
Tom Green County, Texas, dated October 6, 2014, stating “FILED FOR RECORD.” As the State
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points out, filing the indictment would be impossible without it being presented to the clerk.
Additionally, the clerk’s record contains a case summary with an entry labeled “Indictment” on
October 6, 2014, stating “Delivered to Clerk through Grand Jury foreman with at least 9 members
of the GJ present and returning indictment.” We conclude that the indictment’s original file stamp
and the case-summary entry for the indictment convincingly show that the presentment requirement
was met. See Tex. Code Crim. Proc. art. 20.21; Dotson, 224 S.W.3d at 204; Helsley, 2017 Tex. App.
LEXIS 1986, at *2.
Further, there is evidence in the record that the district court received the grand jury’s
indictment. See Tex. Code Crim. Proc. art. 12.06 (“An indictment is considered as ‘presented’ when
it has been duly acted upon by the grand jury and received by the court.”). The face of the indictment
in this record states: “The Grand Jurors for the County of Tom Green, State of Texas, duly selected,
impaneled, sworn, charged and organized as such at the July Term 2014, of the 119th District Court
of said County, upon their oaths present in and to said Court . . .” The record also shows that the
district court had the prosecution read the indictment to Mediano in open court at the start of the trial
and that the court asked Mediano to enter a plea to the offense charged in the indictment. See
Helsley, 2017 Tex. App. LEXIS 1986, at *2-3 (noting that if trial court had not received indictment
“it would seem rather ludicrous for it to ask the defendant to enter a plea to the charges contained
therein once read to him in open court”). On this record, we conclude that the presentment
requirement was met and that the district had jurisdiction to try Mediano for the offense of
aggravated sexual assault of a child as alleged in the indictment. We overrule Mediano’s first issue.
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Equal protection
In his second issue, Mediano contends that if his indictment was properly presented,
such presentment violated his right to equal protection. Like the appellant in Helsey, Mediano asks:
Is equal protection denied if the circumstances here are accepted as proper
presentment of a State-prepared document such as an indictment, while a motion for
new trial—which is virtually always a defense filing—requires far more
documentation to qualify as “presented”?
See id. at *3. But it appears that Mediano did not preserve this issue for our review. See id. Equal
protection claims must be preserved for appellate review. Moreno v. State, 409 S.W.3d 723, 728-29
(Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (citing Saldano v. State, 70 S.W.3d 873, 889-90
(Tex. Crim. App. 2002)); Helsley, 2017 Tex. App. LEXIS 1986, at *3-4; see also Tex. Code Crim.
Proc. art. 1.14 (“If the defendant does not object to a defect, error, or irregularity of form or substance
in an indictment . . . before the date on which the trial on the merits commences, he waives and
forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on
appeal or in any other postconviction proceeding.”). Mediano contends that he raised this issue at
his “earliest opportunity” because it depended on this Court’s rejection of his first issue as to whether
presentment of his indictment was proper. We disagree. Mediano knew that his indictment had been
accepted as properly presented because his case proceeded to trial where the court made multiple
references to the indictment. Mediano points to no authority supporting his decision to delay his
complaint about a perceived equal-protection issue on presentment requirements for indictments and
motions for new trial. Because Mediano has not shown that he made his equal-protection argument
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to the district court, we conclude that he failed to preserve this issue for appellate review. See
Helsley, 2017 Tex. App. LEXIS 1986, at *4. We overrule Mediano’s second issue.
CONCLUSION
We affirm the district court’s judgment of conviction.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Field and Bourland
Affirmed
Filed: July 18, 2017
Do Not Publish
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