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 NowRespectfully, ORLEANAYERS, 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 AggravatedRobbery in causenumber 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 Courtofappealsdelivered an opinion affirming the trial court's judgement incausenu mber 597938. Ayers v,. Sstate 879 S-W. 2d176(Tex.App. Houston [14th Dist.] 1994. no pet.) 

### 3. On December 24, 2008, Defendant filedaMotion forForensic 

## DNA Testing and Appointment ofCounselpursuant toChapter64 of the Code of Criminal Procedure in causenumber 597938. 

## 4. On April 29, 2009, ThetrialCourtappointedMarkHochglaube to represent Defendant in the Chapter 64proceedinginthe

cause number 597938. 

## 5. on January27, 2011, HoustonPoliceDepartment identification Division, Ron Smith &Associates, Inc. re-examined (34) thirty

## four latent prints at the request ofHarrisCountyDistrict Attorney Alicia O'Neill."Latentprint examination report HPD incident^#043518991-0. 

### 6. On February 1, 2011, the trial Court entered findingoffacts-;- 

### granting post-conviction DNA Testing on latent print evidence and .32 caliber revolver which was to be conducted by the Texas

1 .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#L2H214408, 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 fingerprintlift 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 .TheiappellanttabieiCstotrial 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. Theappellant objects to tiketrial court not DNAtesting 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. AssistantDistrict 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 qarbage 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 2