Orlean Ayers v. State

CAUSE NO. 597938
ORLEAN AYERS § IN THE 176TH DISTRICT
V § COURT OF
THE STATE OF TEXAS § HARRIS COUNTY, TEXAS
MOTION FOR OBJECTION FOR THE PRESERVATION
OF APPELLATE REVIEW PURSUANT TO ART. 64.04
TO THE HONORABLE JUDGE OF SAID COURT:
Comes Now Respectfully, ORLEAN AYERS, Movant, in the above style
and number cause who is proceeding in pro se files and submits
this Objection For The preservation Of Appellant Review.
STATEMENT OF FACTS
l.,0.n June-2, 1992 Orlean Ayers(Defendant) was convict by a jury
for the felony offense of Aggravated Robbery in cause number
597938 in the 176th District Court of Harris County, Texas and
was sentenced to confinement for life in the Texas Department
of Criminal Justice- Institutional Division.
2. On May 12, 1994 the Fourteeth Court of appeals delivered
an opinion affirming the trial court's judgement in cause nu
mber 597938. Ayers v,. Sstate 879 S-W. 2d 176(Tex.App. Houston
[14th Dist.] 1994. no pet.)
3. On December 24, 2008, Defendant filed a Motion for Forensic
DNA Testing and Appointment of Counsel pursuant to Chapter 64
of the Code of Criminal Procedure in cause number 597938.
4. On April 29, 2009, The trial Court appointed Mark Hochglaube
to represent Defendant in the Chapter 64 proceeding in the
cause number 597938.
5. on January 27, 2011, Houston Police Department identification
Division, Ron Smith & Associates, Inc. re-examined (34) thirty-
four latent prints at the request of Harris County District
Attorney Alicia O'Neill."Latent print examination report HPD
incident^#043518991-0.
6. On February 1, 2011, the trial Court entered finding of facts-;-
granting post-conviction DNA Testing on latent print evidence
and .32 caliber revolver which was to be conducted by the Texas
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Department of Public Safety-Crime Laboratory(TDPS-CL) in cause
number 597938,
7. On August 5, 2011, Defendant filed a motion objecting to
State excluding relevant DNA evidence(right index fingerprint
L-2 of the RS&A inc.re-examine) with Oder for testing.
8. On December 14, 2012, the Texas Deptrt of Public Safety comp
leted DNA test on the latent prints and revolver. Laboratory#L2H-
214408, Agency # 0435189910, County-Harris, Offense date 05/01/91
9. On December 21, 2012, Jennifer Moreno wrote an affidavit
expounding "only" on the DNA analysis conducted on the fingerpri-
ntlift cards
10. On January 8, 2013, the 176th District Court of Harris County
Texas issued an ex parte order without a live hearing based
on State's Proposed Findings of Fact after DNA testing.
II
1 .Thei appellant tabieiCs to trial court not conducting a live hearing
under art. 64.04.as required by chapter 64 . and objects to not
providing, his attorney the opportunity to be present and object
to perceived error in the proceeding -as required by art. 64.01 (e)
2. The appellant objects to tike trial court not DNA testing a right index
fingerprint lifted jfrom L-2, Plastic bag#2. This print is one
;bf several right indexprints withheld from defense at the time of
trial. This print was lifted from the same bags that Christopher
Montez stole from the store and left his prints on that was found
at the crime scene. Assistant District Attorney, Alicia Devoy
O'Neill discovered these riqht index finqerprints when she ordered
the re-examination of thirty-four(34) latent prints, in which
the prints choose for DNA testinq came from. The record reflects
that before appellant was arrested the Houston Police Department
knew that they had lifted three suspects prints from the two qar-
bage baqs found at the crime scene. HPD crime lab knew that they
had two of the suspects in custody (Monez and Morris) and one on
the loose and when appellant turned himself in, they knew that: k-h
the print did not match appellant's. This exculpatory evidence was
withheld and would.prove appellant's actual -innocence .
Wherefore Premises Considered, Appellant prays that this Honorable
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