Petition for Writ of Mandamus Denied and Memorandum Opinion filed
October 1, 2013.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-13-00812-CR



                       IN RE ORLEAN AYERS, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              176th District Court
                             Harris County, Texas
                         Trial Court Cause No. 597938

                         MEMORANDUM OPINION

      On September 16, 2013, relator Orlean Ayers filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P.
52. Relator complains that the respondent, the Honorable Stacey Bond, presiding
judge of the 176th District Court of Harris County, has failed to rule on two
motions filed August 5, 2011 and January 10, 2013. Relator also complains that the
respondent has not conducted a live hearing on his motion for post-conviction
DNA testing, as required by article 64.04 of the Code of Criminal Procedure.
Relator asks that we compel the respondent to act in these various matters. We
deny mandamus relief.

                                   BACKGROUND

      In 1991, three burglars broke into a home and killed one of the occupants.
Relator was charged in connection with the incident, but a jury convicted him of
only aggravated robbery. Punishment was assessed at life imprisonment. On direct
appeal, we affirmed the trial court’s judgment. See Ayers v. State, 879 S.W.2d 176
(Tex. App.—Houston [14th Dist.] 1994, no pet.).

      In 2008, relator filed a motion for post-conviction DNA testing under
Chapter 64 of the Code of Criminal Procedure. Under this chapter, a convicted
person is entitled to the appointment of counsel if the court determines that the
motion has reasonable grounds to be filed and the person is indigent. See Tex.
Code Crim. Proc. art. 64.01(c). Furthermore, if the court determines that DNA
testing is warranted, it must conduct a hearing, review the test results, and decide
whether those test results would have affected the movant’s conviction had they
been available at the time of trial. See id. art. 64.04.

      In 2009, the trial court appointed Mark Hochglaube, a public defender, to
represent relator in his Chapter 64 motion. The trial court signed an order in 2011
granting DNA testing on some, but not all, of the evidence collected from the
crime scene. Relator objected to the trial court’s exclusion of a particular item of
evidence requested in his motion. Claiming that the trial court had failed to rule on
this objection, relator filed a petition for writ of mandamus, asking that we compel
the trial court to issue a ruling. We denied mandamus relief in 2012 because relator
had not shown that his objection was actually brought to the attention of the trial
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court. See In re Ayers, No. 14-12-00097-CR, 2012 WL 629346, at *1 (Tex. App.—
Houston [14th Dist.] Feb. 28, 2012, orig. proceeding) (per curiam).

      Relator subsequently filed a motion with the trial court, asking that it rule on
his earlier objection. The motion was filed in March 2012, but the record does not
reflect that relator ever obtained a ruling.

      In December 2012, relator received a letter from Hochglaube, his appointed
counsel. Attached to the letter were the results from the DNA testing, which
excluded relator from every DNA profile that had been obtained from the
evidence. Hochglaube advised relator to keep his expectations low, suspecting that
the test results were not fully exculpatory. Hochglaube stated that there were some
accounts that relator had acted as a getaway driver, meaning there would be no
reason for finding his DNA in the home of the complainant. Hochglaube repeated,
however, that he would still advocate on behalf of relator and urge the trial court
that the absence of DNA evidence was indeed exculpatory.

      Relator disapproved of Hochglaube’s letter and filed his own motion with
the trial court, objecting to “his counsel’s intention to argue the improper theory of
[relator] being the getaway driver in the crime.” The motion was filed in the trial
court on January 10, 2013, two days after the trial court had issued findings that the
DNA testing would not have affected relator’s conviction.

                                      ANALYSIS

      In his latest petition for writ of mandamus, relator complains about the trial
court’s failure to rule on two of his motions and on its failure to conduct a live
hearing, as required by rule. To be entitled to mandamus relief, relator must show
that he has no adequate remedy at law to redress his alleged harm, and that what he

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seeks to compel is a ministerial act, not involving a discretionary or judicial
decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d
207, 210 (Tex. Crim. App. 2007).

      Relator’s first complaint pertains to a motion filed August 5, 2011, objecting
to the trial court’s exclusion of evidence from DNA testing. Relator did not include
a copy of this motion in his mandamus record. See Tex. R. App. P. 52.7(a)(1)
(requiring “a certified or sworn copy of every document that is material to the
relator’s claim for relief”). However, the motion was attached to relator’s previous
petition for writ of mandamus. Our records show that relator filed this motion pro
se at a time when he was represented by counsel. Relator is not entitled to hybrid
representation, and the trial court was free to disregard relator’s pro se motion. See
Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). Accordingly,
relator cannot show that the trial court failed to perform a ministerial act.

      Relator’s second complaint pertains to a motion filed January 10, 2013, in
which relator objected to certain arguments he expected from Hochglaube.
Assuming relator had permission to file this motion pro se, the motion was
untimely. It was filed in the trial court two days after the court had already ruled on
the merits of relator’s Chapter 64 motion. The trial court cannot be faulted for
failing to rule on a motion that was not presently before it. To whatever extent
relator contends that Hochglaube actually engaged in improper argument, relator
has an adequate remedy by appeal. See Tex. Code Crim. Proc. art. 64.05. Indeed,
our records show that relator has already begun an appeals process in Cause No.
14-13-0229-CR.

      In his third complaint, relator claims that the trial court failed to conduct a
live hearing, as required by Article 64.04. Relator has an adequate remedy by
                                           4
addressing this complaint on direct appeal. Cf. Rivera v. State, 89 S.W.3d 55, 58–
59 (Tex. Crim. App. 2002) (considering, on direct appeal, whether appellant was
entitled to a hearing under a different provision in Chapter 64).

                                  CONCLUSION

      Relator has not established that he is entitled to mandamus relief. We
accordingly deny his petition for writ of mandamus.



                                                       PER CURIAM

Panel consists of Justices Brown, Christopher, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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