Court of Appeals of Texas, 2013

Orlean Ayers v. State

Court of Appeals of Texas · Decided August 13, 2013

Opinion

Motion Granted in Part; Order filed August 13, 2013.

In The

Fourteenth Court of Appeals

____________ NO. 14-13-00229-CR ____________ ORLEAN AYERS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 597938 ORDER

This is an appeal from the denial of relief following post-conviction DNA testing. Appellant’s court-appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. Appellant has made known to this court his desire to review the record and file a pro se brief. See Anders v. California, 386 U.S. 738 (1967); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).

The clerk’s record was filed March 19, 2013. Pursuant to this court’s order, the Harris County District Clerk’s office provided appellant with a copy of the record. Appellant has reviewed the record and filed a motion requesting that the record be supplemented.1 See Tex. R. App. P. 34.5(c). We grant the motion in part and issue the following order:

The Harris County District Clerk is directed to file a supplemental clerk’s record on or before September 13, 2013, containing the following:

1. Appellant’s pro se motion for DNA testing and request for appointment of counsel dated December 24, 2008; 2. Appellant’s motion for scientific testing of DNA evidence dated October 26, 2009; 3. Texas Department of Public Safety-Crime Laboratory Reports dated December 14, 2012; 4. Affidavit of Jennifer Moreno; 5. Appellant’s motion for “objection for the preservation of appellate review pursuant to art. 64.04” dated Feb. 5, 2013; If any omitted item is not part of the case file, the district clerk is directed to file a supplemental clerk’s record containing a certified statement that the omitted item is not a part of the case file.

The Harris County District Clerk is ordered to furnish a copy of the supplemental record to appellant on or before September 13, 2013, and certify to this court the date on which delivery of the supplemental record to appellant is made. Appellant’s pro se brief shall be filed with this court within thirty days of that date.

PER CURIAM

1 Some of the items appellant requests are included in the record. The State’s requests for Findings of Fact are included in its Proposed Findings of Fact, which were adopted and signed by the trial court on February 1, 2011, and January 8, 2013. The Affidavit of Barbara Anderson is included in the record. Appellant also requests the trial court records in cause number 597938. To the extent appellant is seeking records from the trial resulting in his conviction, those records are not a part of this appeal. The evidence at appellant’s trial was discussed in this court’s opinion affirming his conviction, however. See Ayers v. State, 879 S.W.2d 176 (Tex. App.— Houston [14th Dist.] 1994, no pet.). Appellant’s motion is denied with respect to these items.

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