                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00102-CV




          IN RE: CORY PAUL ZIOLKOWSKI




             Original Mandamus Proceeding




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                      MEMORANDUM OPINION

       On April 3, 2007, we affirmed Cory Paul Ziolkowski’s conviction for the murder of

James “Bucky” Ball. See Ziolkowski v. State, 223 S.W.3d 640 (Tex. App.—Texarkana 2007,

pet. ref’d). On April 25, 2013, Ziolkowski filed with the trial court a motion for appointment of

counsel to assist him in filing a post-conviction motion for DNA testing. See TEX. CODE CRIM.

PROC. ANN. art. 64.01(c) (West. Supp. 2012). Ziolkowski’s pro se petition for writ of mandamus

complains of the trial court’s failure to rule on his motion.        Because the record supports

Ziolkowski’s right to a ruling on his motion for counsel, we conditionally grant his petition for

writ of mandamus.

       One seeking mandamus relief must establish both that he or she has no adequate remedy

at law to redress the alleged harm and that the judicial action sought 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). Consideration of a request

or motion that is properly filed and before the court is a ministerial act. State ex rel. Curry v.

Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding).

       To obtain mandamus relief for the trial court’s failure to rule on a motion, a relator must

establish that: (1) the motion was properly filed and has been pending for a reasonable time,

(2) the relator requested a ruling on the motion, and (3) the trial court has not ruled. In re

Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding); In re

Sarkissian, 243 S.W.3d 860, 861 (Tex. App.—Waco 2008, orig. proceeding); In re Hearn, 137

S.W.3d 681, 685 (Tex. App.—San Antonio 2004, orig. proceeding). The relator must show that
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the trial court received, was aware of, and was asked to rule on the motion. Blakeney, 254

S.W.3d at 661; In re Villarreal, 96 S.W.3d 708, 710 (Tex. App.—Amarillo 2003, orig.

proceeding). The record establishes that Ziolkowski has met these requirements.

        On April 25, 2013, Ziolkowski filed a letter with the trial court appearing to attach three

“enclosed motions”: a motion for appointment of counsel, an affidavit of indigency, and a

request and application for writ of habeas corpus. The trial court had notice of the application

for writ of habeas corpus because the court ruled on that application August 30, 2013. This

ruling suggested that the motion for appointment of counsel, which was attached to the same

letter as the application for writ of habeas corpus, had indeed been filed and, presumably,

brought to the knowledge of the trial court.

        We requested a response from the trial court, and the trial court responded, in pertinent

part:

        In addition to Relator’s Petition for Writ of Mandamus, Respondent has reviewed
        the trial record and exhibits. While Respondent believes Relator is capable of
        representing himself, it will certainly abide by this Court’s direction in the event it
        believes the appointment of counsel is necessary. Likewise, after reviewing the
        trial court record, which includes Relator’s confession, while this Court is not
        opposed to granting DNA testing, Respondent is unable to find any basis for
        Relator’s request for additional DNA or ballistics testing. While Respondent is
        currently of the opinion that additional testing, as currently requested, will not
        assist in absolving [Relator of guilt,] Respondent is not opposed to Relator’s
        request for additional DNA or ballistics testing in the event this Court feels it is
        necessary or the Relator can point out what evidence needs to be tested and how
        that could potentially change the outcome.
The above response establishes that the trial court is aware of the motion for appointment of

counsel, which had been pending for a reasonable time.            The trial court’s response seeks


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direction from this Court as to whether it “feels” or “believes the appointment of counsel is

necessary.” The response relays the trial court’s belief that “Relator is capable of representing

himself,” while stating it is “not opposed to granting DNA testing.” We conclude that this

response demonstrates the trial court’s awareness of Ziolkowski’s motion for appointment of

counsel and its failure to rule on that motion, one way or the other. 1

        We conditionally grant the petition for writ of mandamus and instruct the trial court to

rule on Ziolkowski’s motion for appointment of counsel to assist him in filing a post-conviction

motion for DNA testing. 2 The writ will issue only if the trial court fails to comply with this

opinion within fourteen days.


                                                             Josh R. Morriss, III
                                                             Chief Justice
Date Submitted:           October 29, 2013
Date Decided:             October 30, 2013




1
 A “convicted person” is entitled to counsel during a proceeding under Texas Code of Criminal Procedure, Chapter
64 (Motion for Forensic DNA Testing), if the person informs the court that he or she wishes to submit a motion
under Chapter 64, the court finds reasonable grounds for a motion to be filed, and the court determines that the
person is indigent. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c). The record establishes that the first and last
requirements were met. The trial court’s response states, “Respondent is unable to find any basis for Relator’s
request for additional DNA or ballistics testing,” while also stating it is “not opposed to granting DNA testing.”
This Court is not aware that any ruling has been made with respect to whether reasonable grounds for the motion for
DNA test exist.
2
 We express no opinion on how the trial court should rule on the motion for appointment of counsel or on the
underlying request for DNA testing. We direct only that the trial court rule on whether Ziolkowski should be
appointed an attorney.
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