## NO. 12

- 13

- 00377

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE:

DANNY DALE WEISINGER , SR.,

RELATOR §
§
§ ORIGINAL PROCEEDING

MEMORANDUM OPINION PER CURIAM In this original proceeding, Relator, Danny Dale Weisi nger 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 Cou rt, to vacate the order and reinstate counsel. We deny the petition.

P REREQUISITES TO M ANDAMUS 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, a nd 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).

O RDER G RANTIN G M OTION TO W ITHDRAW 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 oral2

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 peti tion, 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 deadl ines and settings in the appellate court. See
T EX

. R. A PP

. P. 6.5(a)(1). Relator does not contend that there were deadlines or setting s in this court that counsel did not list in his motion. Moreover, even if counsel had misrepresented
whether there wer e deadlines or settings in the appellate court, Relator has not shown that any such misrepresentation would have rendered the withdrawal order void.

F AILURE TO A DMONISH 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 couns el 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 be en 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.3 C ONCLUSION 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 m andamus. 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)

## COURT OF APPE ALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 2 2 , 2014

NO. 12

- 13

- 00377

- CR

DANNY DALE WEISINGER , SR.,

Relator V. HON. PAM FLETCHER , Respondent

O RIGINAL P ROCEEDING ON THIS DAY came to be heard the petition for writ of mandamus f iled 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 sa me 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 D ENIED

.

By per cur iam opinion

. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.