                                          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

                                                       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#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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