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) thirtyfour 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#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 .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 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

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