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In Re: McBride

Texas Code of Criminal Procedure Article 64.03 does not expressly require the court to conduct a hearing before determining whether to order DNA testing.

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Kirk Wayne McBride filed a pro se motion for forensic DNA testing of biological evidence. *fn1 Tex. Code Crim. Proc. Ann. art. 64.01(a) (West Supp. 2002). The motion was denied by the district court four days after it was filed. McBride contends the court erred by denying the motion without requiring a response from the State and without a hearing. He further contends that his motion and supporting affidavit were alone sufficient to require the court to order DNA testing. We will affirm the district court’s order.

Upon receipt of a motion for DNA testing, the court must provide a copy of the motion to the prosecuting attorney, who in turn must either “deliver the evidence to the court” or explain why this cannot be done. Id. art. 64.02. The record before us does not reflect compliance with article 64.02. In its brief, the State recites that it was notified of McBride’s motion and affirms that numerous exhibits possibly containing biological evidence are in its possession. Under the circumstances, we perceive no harm to McBride in the State’s failure to formally respond to his motion.

The court “shall order that the requested forensic DNA testing be conducted” if two conditions are met. Id. art. 64.03(c). First, the court must find (1) that testable biological evidence still exists and has not been altered or tampered with, and (2) that identity was or is an issue in the case. Id. art. 64.03(a)(1)(A), (B). Second, the applicant must establish by a preponderance of the evidence (1) that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing, and (2) that the request for testing is not made to unreasonably delay the execution of sentence or administration of justice. Id. art. 64.03(a)(2)(A), (B). Article 64.03 does not expressly require the court to conduct a hearing before determining whether to order DNA testing. *fn2

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