in Re Donald Gene Blanton ( 2020 )

DENIED and Opinion Filed March 27, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00288-CV
IN RE DONALD GENE BLANTON, Relator
On Appeal from the 86th Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 23078-86
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Evans
Opinion by Justice Molberg
In this original proceeding, Donald Gene Blanton petitions the Court for a writ
of mandamus to compel the trial court to order the State to obey a 2005 pretrial order
directing the State to turn over to relator grand jury transcripts1 and for this Court or
some other tribunal to conduct a hearing, with a change of venue and appointment of
counsel, regarding his claims that the trial court judge and other officials conspired
1
The appendix to the petition includes an unauthenticated copy of a “Motion to Compel Trial Court
Judge to Direct State to Obey Trial Judge Order on Grand Jury Transcripts” that relator contends he filed
with the trial court. We interpret relator’s petition as requesting mandamus relief to force the trial court to
enforce its 2005 pretrial order directly rather than to rule upon his motion to compel. Our determination to
deny relief would not change if we interpreted his petition as seeking mandamus to compel a ruling on the
motion.
to forge an 11.07 writ application for him without his consent, thus proving his
innocence. 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). Relator’s petition does not contain a certification and thus
does not comply with rule 52.3(j). See id.; In re Butler, 270 S.W.3d 757, 758 (Tex.
App.—Dallas 2008, orig. proceeding).
Moreover, to establish a right to mandamus relief, the relator must show that
the trial court violated a ministerial duty and there is no adequate remedy at law. In
re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig.
proceeding). As the party seeking relief, the relator has the burden of providing the
Court with a sufficient mandamus record to establish his right to mandamus relief.
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Rule
52.3(k)(1)(A) requires the relator to file an appendix with his petition that contains
“a certified or sworn copy of any order complained of, or any other document
showing the matter complained of.” TEX. R. APP. P. 52.3(k)(1)(A). Rule 52.7(a)(1)
requires the relator to file with the petition “a certified or sworn copy of every
document that is material to the relator’s claim for relief that was filed in any
underlying proceeding.” TEX. R. APP. P. 52.7(a)(1).
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Relator has attached copies of documents to his petition, but most of the copies
are not certified or sworn copies and thus are not properly authenticated under the
rules of appellate procedure.2 On the existing record, relator cannot establish that the
trial court has violated a ministerial duty and he is entitled to mandamus relief. See
Butler, 270 S.W.3d at 759.
Finally, we note that even if relator’s petition was properly authenticated and
supported by a properly authenticated record, it does not show relator is entitled to
mandamus relief. After the trial court’s plenary jurisdiction expires, it does not retain
general jurisdiction over a case. State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim.
App. 2002) (plurality op.). The trial court retains limited jurisdiction to address
certain matters such as ensuring that a higher court’s mandate is carried out, fact
finding on habeas applications, and presiding over post-conviction DNA testing. Id.
Relator’s belated effort to obtain pretrial discovery from the State does not fall within
the trial court’s limited continuing jurisdiction. See id. The hearing relator requests
regarding an alleged post-conviction conspiracy would fall within the purview of an
11.07 habeas writ rather than this Court’s mandamus jurisdiction. See generally TEX.
2
Documents become sworn copies when they are attached to an affidavit or to an unsworn declaration
conforming to section 132.001 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 132.001; In
re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding); In re Taylor, 28 S.W.3d 240,
245, (Tex. App.—Waco 2000, orig. proceeding) (mem. op), disapproved on other grounds by In re Z.L.T.,
124 S.W.3d 163, 166 (Tex. 2003). The affidavit or unsworn declaration must affirmatively show it is based
on the affiant’s personal knowledge. See Butler, 270 S.W.3d at 759. The affidavit or unsworn declaration
is insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to them.
See id. To comply with the rules, the affidavit or unsworn declaration must state the affiant has personal
knowledge that the copies of the documents in the appendix are correct copies of the originals. See id.
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CODE CRIM. PROC. ANN. art. 11.07; In re Harrison, 187 S.W.3d 199, 200 (Tex.
App.—Amarillo 2006, orig. proceeding) (declining to grant mandamus relief where
relator’s collateral attack on conviction more appropriately brought as article 11.07
habeas proceeding).
Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R.
APP. P. 52.8(a) (the court must deny the petition if the court determines relator is not
entitled to the relief sought).
/Ken Molberg//
KEN MOLBERG
JUSTICE
200288F.P05
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