In Re: Danny Dale Weisinger, Sr.--Appeal from 349th District Court of Houston County
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NO. 12-11-00101-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN RE: § DANNY DALE WEISINGER, SR., § RELATOR § ORIGINAL PROCEEDING MEMORANDUM OPINION Relator was convicted of aggravated assault with a deadly weapon and sentenced to imprisonment for twenty years. He appealed pro se, and this court affirmed his conviction. See Weisinger v. State, No. 12-03-00274-CR, 2004 WL 3103643, at *8 (Tex. App. Tyler Jan. 12, 2005, pet. ref d) (mem. op., not designated for publication). Relator now seeks a writ of mandamus compelling the trial court to delete the deadly weapon finding in the judgment of conviction. As grounds, Relator alleges in his petition that the jury did not affirmatively find the use of a deadly weapon as required by Polk v. State, 693 S.W.2d 394 (Tex. Crim. App. 1985). Therefore, he maintains that the trial court had no authority to make the finding and therefore should be directed to delete it. We deny the petition. To obtain mandamus relief in a criminal matter, the relator must establish that (1) the act sought to be compelled is ministerial, and (2) there is no adequate remedy at law. Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987). However, mandamus is not available where one fails to pursue the remedies provided by law. In re Thomas, 119 S.W.3d 378, 378 (Tex. App. Tyler 2003, orig. proceeding). Here, Relator appealed his conviction, but did not challenge the deadly weapon finding. Moreover, Relator has failed to identify why this issue was not raised during his direct appeal or how it was not capable of being presented at that time. See In re Luna, No. 07-10-00079-CV, 2010 WL 1050236, at *2 (Tex. App. Amarillo Mar. 23, 2010, orig. proceeding) (mem. op., not designated for publication). Accordingly, Relator s petition for writ of mandamus is denied. All pending motions are overruled as moot. JAMES T. WORTHEN Chief Justice Opinion delivered May 18, 2011. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 2
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