In re Mcbride

Kirk Wayne McBride filed a pro se motion for forensic DNA testing of biological evidence. 1 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.