Sign In
Events
Newsletters
Search

Close

Close Search

Cancel

SEARCH
MY LAW.COMNEW

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.

X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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

Trending Stories

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

LEARN MORE

More From ALM

Premium Subscription
With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Team Accounts
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Bundle Subscriptions
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
Go to CLE Center
GlobeSt. Healthcare Real Estate 2024
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
ThinkAdvisor LUMINARIES Awards 2024
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More
Complex Claims & Litigation Forum 2025
February 24, 2025 - February 26, 2025
Las Vegas, NV

This conference aims to help insurers and litigators better manage complex claims and litigation.


Learn More
Go to Events Go to Webcasts
School Law Associate

We are seeking two attorneys with a minimum of two to three years of experience to join our prominent and thriving education law practice in...


Apply Now ›
Real Estate Litigation Associate - New York, NY

Description: Fox Rothschild has an opening in the New York office for a Real Estate Litigation Associate with three to six years of commerci...


Apply Now ›
Attorney - Insurance Defense

Downtown NY property and casualty defense law firm seeks a Litigation Associate with 3+ years' experience to become a part of our team! You ...


Apply Now ›
Go to Lawjobs