in Re Antwon Bernard Hamilton

• Court: Court of Appeals of Texas
• Decided: January 7, 2020
• Docket: 05-19-01458-CV
• Status: Published

Opinion

DENIED and Opinion Filed January 7, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01458-CV

IN RE ANTWON BERNARD HAMILTON, Relator

Original Proceeding from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-080420-99

MEMORANDUM OPINION Before Justices Myers, Molberg, and Nowell Opinion by Justice Molberg Antwon Bernard Hamilton has filed a petition for writ of mandamus complaining about

the trial court’s delay in responding to a document he filed styled “Leave for Discovery and

Enforcement of Judgment on the State’s Original Motion” which is connected to a notice the State

filed in the trial court declaring an intent to destroy evidence in relator’s criminal case.1 We deny

relief.

A petition seeking mandamus relief must contain a certification stating that the relator “has

reviewed the petition and concluded that every factual statement in the petition is supported by

competent evidence included in the appendix or record.” TEX. R. APP. P. 52.3(j). Under this

Court’s precedents, relator’s certification must state substantially what is written in rule 52.3(j).

1 According to the Court’s records, relator was convicted of aggravated sexual assault with two enhancement paragraphs and received a life sentence. See Hamilton v. State, No. 05-02-00451-CR, 2003 WL 1734999, at *1 (Tex. App.—Dallas Apr. 2, 2003, no pet.) (not designated for publication). Although various items collected during the investigation were tested, no scientific evidence linking relator to the offense was discovered. Id. at *2. Relator was convicted on victim and witness testimony. Id. Subsequently, the Court affirmed the trial court’s denial of relator’s motion for post-conviction DNA testing, agreeing with counsel’s Anders brief that the appeal was frivolous and without merit. See Hamilton v. State, No. 05-06-01273-CR, 2008 WL 217564, at *1 (Tex. App.—Dallas Jan. 28, 2008, no pet.) (mem. op., not designated for publication). See In re Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig. proceeding). Relator’s

petition does not contain a certification and therefore does not comply with rule 52.3(j). See id.

Furthermore, Relator has not filed a record with his petition. Rules 52.3 and 52.7 require

the relator to provide a certified or sworn copy of any order complained of, any other document

showing the matter complained of, every document that is material to the relator’s claim for relief

that was filed in any underlying proceeding, and a transcript of any relevant testimony. TEX. R.

APP. P. 52.3(k)(1)(A), 52.7(a); Butler, 270 S.W.3d at 758–59.

Certified copies may be ordered from the district clerk. Documents become sworn copies

when they are attached to an affidavit or to an unsworn declaration stating under penalty of perjury

that the person making the affidavit or unsworn declaration has personal knowledge that the copies

of the documents attached are correct copies of the originals. See TEX. GOV’T CODE ANN. §

132.001; Butler, 270 S.W.3d at 759; In re Taylor, 28 S.W.3d 240, 245, (Tex. App.—Waco 2000,

orig. proceeding), disapproved on other grounds by In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003).

Without an authenticated petition and supporting record, relator has not established that

he is entitled to mandamus relief. See Butler, 270 S.W.3d at 758–59. Thus, we deny relator’s

petition for writ of mandamus.

/Ken Molberg// KEN MOLBERG JUSTICE

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