in Re: Danny Dale Weisinger, Sr.

NO. 12-13-00377-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
DANNY DALE WEISINGER, SR., § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
In this original proceeding, Relator, Danny Dale Weisinger Sr., complains of an order
signed by a former judge on May 14, 2004, granting a motion to withdraw filed by Relator’s
appellate counsel. He seeks a writ of mandamus directing the Honorable Pam Foster Fletcher,
Judge of the 349th Judicial District Court, to vacate the order and reinstate counsel. We deny the
petition.
PREREQUISITES TO MANDAMUS
Generally, to be entitled to mandamus relief in a criminal case, a relator must establish
that he has no adequate remedy at law to redress his alleged harm, and what he seeks to compel
is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v.
Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App.
2007) (orig. proceeding).
ORDER GRANTING MOTION TO WITHDRAW
Relator claims his appellate counsel falsely alleged in his motion to withdraw that there
were no current settings or deadlines in the case. He contends that this allegation was false
because the former judge had orally appointed the withdrawing attorney to assist Relator in
preparing a motion for forensic DNA testing. He asserts that counsel was bound by this oral
pronouncement to represent him and therefore could not truthfully say there were no current
settings or deadlines in the case. Thus, Relator maintains that the May 14, 2004 order is void
and contends that he is entitled to mandamus relief regardless of whether he has an adequate
remedy at law.
Texas Rule of Appellate Procedure 6.5, which Relator cites in his mandamus petition,
pertains to an attorney seeking to withdraw from representing a party in an appellate court. That
being so, it logically follows that the “list of current deadlines and settings in the case” to be
included in the motion to withdraw pertains to deadlines and settings in the appellate court. See
TEX. R. APP. P. 6.5(a)(1). Relator does not contend that there were deadlines or settings in this
court that counsel did not list in his motion. Moreover, even if counsel had misrepresented
whether there were deadlines or settings in the appellate court, Relator has not shown that any
such misrepresentation would have rendered the withdrawal order void.
FAILURE TO ADMONISH
Relator also contends that he was forced to represent himself in his direct appeal without
being properly admonished by the former judge about the dangers of self-representation. Based
upon his conclusion that the order allowing counsel to withdraw is void, he requests that the writ
of mandamus direct the trial court to “reinstate counsel to file the necessary documents to
reinstate the direct appeal.” However, Relator has not shown that the order allowing counsel to
withdraw is void.
Additionally, this court affirmed Relator’s conviction on January 12, 2005, and the court
of criminal appeals refused Relator’s petition for discretionary review. See Weisinger v. State,
No. 12-03-00274-CR, 2004 WL 3103643, at *1 (Tex. App.–Tyler Jan. 12, 2005, pet. ref’d)
(mem. op., not designated for publication). Therefore, Relator’s conviction has been final for
almost ten years. We are unaware of any rule of appellate procedure or other law that authorizes
this court to reinstate a direct appeal of a felony conviction that has been final for this length of
time. Consequently, even if the withdrawal order were void, Relator would not be entitled to
reinstatement of the appeal.
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CONCLUSION
Based on the foregoing analysis, we conclude that Relator has not shown he is entitled to
mandamus relief. Accordingly, we deny Relator’s petition for writ of mandamus. All pending
motions are dismissed as moot.
Opinion delivered October 22, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 22, 2014
NO. 12-13-00377-CR
DANNY DALE WEISINGER, SR.,
Relator
V.
HON. PAM FLETCHER,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed
by DANNY DALE WEISINGER, SR., who is the defendant in Cause No. 03CR-05, pending
on the docket of the 349th Judicial District Court of Houston County, Texas. Said petition for
writ of mandamus having been filed herein on December 19, 2013, and the same having been
duly considered, because it is the opinion of this Court that a writ of mandamus should not issue,
it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of
mandamus be, and the same is, hereby DENIED.
By per curiam opinion.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.