1

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOEVONNE PRINCE JUAREZ

 Appellant, 

v. 

THE STATE OF TEXAS, 

 Appellee.

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 No. 08-23-00297-CR

Appeal from the 

144th Judicial District Court 

of Bexar County, Texas 

(TC# 2022CR0616) 

MEMORANDUM OPINION

A jury found Appellant Joevonne Prince Juarez guilty of one count of aggravated sexual 

assault of a child. In four related issues, Appellant contends (1) the trial court abused its discretion 

by overruling his relevancy objection and allowing an outcry witness to testify regarding her own 

history of sexual abuse, (2) his due process rights were violated because the State improperly relied 

on false testimony from the outcry witness, (3) the trial court erred by denying his motion for new 

trial based on his claim that the outcry witness provided false testimony, and (4) the trial court 

abused its discretion by failing to hold a hearing on Appellant’s motion for new trial. For the 
2

following reasons, we affirm the trial court’s judgment.1

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted on one count of aggravated sexual assault of N.G., a child younger 

than 14 years, by allegedly causing the penetration of her sexual organ with his sexual organ. 

A. N.G.’s trial testimony 

At trial, N.G., who was 11 years old at the time of the alleged assault and 14 years old on 

the day of trial, testified that on November 26, 2020, she was at the home of her grandmother, 

Carolina, celebrating Thanksgiving along with other family members, including Appellant, her 

then-17-year-old cousin.

2 According to N.G., Appellant had enticed her into a back bedroom in 

Carolina’s house on multiple occasions, where he had touched her chest and “private parts,”

beginning sometime before she turned eight years old. N.G. recalled that she was sitting on the 

couch after Thanksgiving dinner when Appellant touched her shoulder, indicating she should 

follow him into a back bedroom.3 N.G. complied, and when the two were in the room with the 

door shut, Appellant instructed her to take off her clothes.4 N.G. recalled that she stripped down 

to her underwear. Appellant then pulled aside her underwear, touched her private area, and inserted

1 This case was transferred from the Fourth Court of Appeals pursuant to the Texas Supreme Court’s docket 

equalization efforts. See Tex. Gov’t Code Ann. § 73.001. We decide the case in accordance with the precedent of the 

transferor court to the extent it conflicts with our own. Tex. R. App. P. 41.3.

2 To protect the victim’s identity, we refer to her by the initials N.G. in place of her true name. See Tex. R. App. P. 

9.10.

3 At trial, Carolina and one of her daughters testified that Carolina slept on the couch in her living room because her 

three bedrooms were used for storage. 

4 N.G later told a law enforcement officer that Appellant had pulled down her clothes.
3

his penis into her vagina but did not ejaculate.

5 She got dressed and left the room to join the rest 

of the family but did not inform anyone of what had occurred at the time. 

B. N.G.’s outcry to her mother 

N.G.’s mother, Kimberly, testified at trial that she was unaware of the Thanksgiving 

incident but that she had noticed N.G.’s behavior changed after Thanksgiving—N.G. had become 

moodier and started cutting herself. In January 2021, N.G. told her best friend, Brianna, that 

Appellant raped her during the Thanksgiving incident. 6 Brianna told Kimberly about N.G.’s 

statement, and Kimberly immediately called her sister, Yvonne (Appellant’s mother), to inform 

her of the allegation. During their phone conversation, Yvonne questioned Appellant about 

whether he had engaged in sexual intercourse with N.G. He denied the allegation. 

Kimberly, who served as an outcry witness at trial, testified that she questioned N.G. about 

the matter, but N.G. initially denied that anything had occurred.

7 However, Kimberly recalled 

N.G. appearing anxious and crying, and she therefore pressed N.G. to tell her if something had 

happened. Upon further questioning, N.G. informed Kimberly that Appellant had been touching 

her inappropriately “over the years” and had put his penis in her mouth on one occasion. N.G. told 

5 At various times during her testimony, N.G. used different language to describe the incident, indicating Appellant 

had placed his “private area in [my] private area.” Upon questioning, N.G. clarified she was referring to his penis and 

her vagina. 

6 Brianna did not testify at trial. 

7 The parties agreed Kimberly was the first person over 18 to whom N.G. reported the abuse and was properly an

outcry witness. Tex. Code Crim. Pro. Ann. art. 38.072 § 2(a)(1)–(3) (An outcry witness is “the first person, 18 years 

of age or older, other than the defendant, to whom [a child victim of sexual abuse] made a statement about the 

offense.”). Although a child’s out-of-court statements regarding an offense would normally be considered 

inadmissible hearsay, an outcry witness may testify as to the child’s statements at trial if they fit within the 

requirements of the outcry witness exception to the hearsay rule. Id. § 3(b); see also Bays v. State, 396 S.W.3d 580, 

585 (Tex. Crim. App. 2013) (discussing the nature of the outcry witness exception to the hearsay rule).
4

her Appellant had “pushed her into the back room . . . [m]ade her take her clothes off [and] 

penetrate[d] her” during the Thanksgiving get-together at Carolina’s house. N.G. indicated that 

she had not wanted to tell Kimberly about the abuse because she was afraid it would “hurt” her.

C. Kimberly’s testimony about her own history of sexual abuse 

As explained in more detail below, over Appellant’s relevancy objection, Kimberly was 

permitted to testify to her own history of childhood sexual abuse. The issue arose after Kimberly 

testified that Carolina had been an abusive mother, both emotionally and physically, which was 

why she became estranged from her family for several years as an adult.8 The prosecutor then 

asked Kimberly if she had been abused in other ways as a child, and defense counsel objected on 

relevancy grounds. In response, the State began to explain that Kimberly had been abused in 

Carolina’s home and that Carolina was to be a defense witness in the case. The trial court

interrupted the prosecutor’s explanation, and without further discussion, overruled the objection. 

Kimberly was permitted to testify that Carolina’s boyfriend (the boyfriend) had sexually 

assaulted her when she was between the ages of four and six. Kimberly averred that although she 

believed Carolina had reported the incident and the boyfriend had been arrested and charged, she 

believed Carolina later contacted the district attorney’s office asking them to dismiss the charges 

after the boyfriend told Carolina he would move in with her. Kimberly explained that she pressed 

N.G. to make her outcry, informing N.G. she did not want to “sweep it under the rug” if something 

had happened. Although Kimberly was not certain if N.G. understood the meaning, she explained 

at trial she made the statement because Carolina had “hid a lot of abuse” when she was growing 

8 Kimberly recalled leaving her mother’s house at the age of 19 and did not see her again until age 24, when they reestablished a somewhat tenuous relationship after a death in the family. 
5

up, and she “didn’t want that life for [N.G.].” Instead, she wanted N.G. to tell her if something 

happened so that “she could be okay.” 

D. N.G.’s reports to law enforcement and ChildSafe employees

Kimberly testified that she contacted the police immediately after N.G. made her outcry, 

and a patrol officer interviewed her and N.G. the same day. N.G. informed the officer that 

Appellant had penetrated her vagina with his penis on Thanksgiving and that he had previously 

touched her inappropriately. She indicated that the penetration was not consensual, as “she didn’t 

want to do it.” Based on his training, experience, and assessment of N.G.’s demeanor, the officer

believed she was credible.

At the officer’s suggestion, Kimberly took N.G. to ChildSafe in San Antonio, a children's 

advocacy center, where she was examined by a Sexual Assault Nurse Examiner (the SANE nurse). 

The SANE nurse testified that N.G. was initially hesitant to speak to her but eventually informed 

her that Appellant had “sexually abused” her by touching her inappropriately and later by “forced 

intercourse,” describing it as vaginal penetration with Appellant’s penis, which N.G. reported as 

hurting a lot. N.G. told her that she did not want to tell her mother earlier because she “didn’t want 

to make her sad” and because she “didn’t want anything bad to happen [to Appellant] because he’s 

still young.”

The SANE nurse explained that a child-victim of sexual abuse will often display a variety 

of behavioral symptoms, which indicate they are having trouble coping with the abuse, and that 

N.G. had reported at least two such symptoms—problems sleeping and cutting her arm—which 

N.G. reported had started one month after the Thanksgiving incident.

9 N.G. was also seen by a 

9 The SANE nurse reported observing “linear scars on [N.G.’s] left arm.”
6

clinical therapist at Child Safe, who testified at trial regarding N.G.’s outcry of sexual abuse and

believed that N.G. was sincere in her report. 

N.G. was also interviewed by a detective in the special victims unit and informed her that

Appellant started touching her inappropriately at age seven while they were at their grandmother’s 

house, penetrated her mouth on one occasion, and penetrated her vagina with his penis on 

Thanksgiving. She also believed N.G.’s outcry was credible.

E. Appellant’s defense 

At trial, Appellant raised a fabrication defense, contending N.G. had fabricated the story in 

part due to manipulation by Kimberly, positing that Kimberly was angry with her family due to 

the alleged abuse she suffered as a child and her belief that Carolina failed to protect her. At trial,

Carolina acknowledged her boyfriend sexually abused Kimberly as a child, but testified that, 

contrary to Kimberly’s suggestion, she did everything she could to protect Kimberly by reporting 

the matter to police and never seeing the boyfriend again. However, Carolina reported that she 

took Kimberly to an “agency” where someone told her Kimberly had not been raped. She therefore 

did not follow up to determine if the boyfriend had been prosecuted, explaining that she believed 

the “court” would take care of the matter. At trial, both Yvonne and Carolina testified that due to 

the past abuse and other issues Kimberly had with the family, she was periodically estranged from 

them. Defense counsel used their testimony during closing arguments to suggest Kimberly may 

have had a motive to influence N.G. to make a false outcry against Appellant.

10

10 As well, defense counsel suggested N.G. may have been influenced by the fact that Kimberly admittedly spoke 

frankly with her children about sexual matters and that she reviewed sex toys online as part of her livelihood. 
7

In addition, both Yvonne and Carolina testified that given the size and configuration of 

Carolina’s house, they believed it would have been virtually impossible for the abuse to have taken 

place without someone observing it. 

F. The jury’s verdict and Appellant’s motion for new trial

The jury found Appellant guilty of aggravated sexual assault of a child as charged in the 

indictment, and the trial court sentenced him to 45 years in prison and assessed a $10,000 fine. 

Appellant filed a motion for new trial, alleging (1) the trial court erred by admitting Kimberly’s 

testimony regarding her own history of sexual abuse, contending it was irrelevant to the issue of 

whether Appellant had abused N.G., and (2) Kimberly provided false testimony when she claimed 

that Carolina tried to have the charges against her boyfriend dismissed. 

In support, Appellant attached an affidavit from Carolina averring that Kimberly’s 

testimony that she attempted to withdraw the charges against her boyfriend was “completely 

false.” Carolina explained that following trial, when she learned of Kimberly’s testimony, she 

contacted the district attorney’s office to obtain paperwork from her boyfriend’s case, which 

Appellant attached to his motion.

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The paperwork indicated that the boyfriend pled to one count of indecency with a child in 

1995, and the trial court placed him on deferred adjudication community service probation for four 

years. 12 In her affidavit, Carolina expressed her belief that the paperwork demonstrated her 

11 At trial, Carolina testified that she did not recall the boyfriend’s real name and that he had falsely told her his name 

was “Juan.” Kimberly, however, testified that she believed Carolina still had letters from the boyfriend at her house. 

In her affidavit, Carolina averred this was not true, but she did have a letter from the district attorney’s office with his 

name on it, which allowed her to request the paperwork from his case. 

12 In her statement to the police, which was in the attached paperwork, Carolina told police she had witnessed her 

boyfriend fondling Kimberly, who was seven years old at the time, when Kimberly was in bed with her and her

boyfriend. That prompted her to call the police. Kimberly later told her the boyfriend had abused her before that 
8

boyfriend “was prosecuted and that [she] did not withdraw the charges.” She further indicated she 

was “sorry” that Kimberly did not believe she took steps to protect her, and she did not know why 

Kimberly felt that way.

In his motion, Appellant argued this evidence established that Kimberly had provided false 

testimony regarding Carolina’s actions following her outcry, and the State relied on this false 

testimony to attack Carolina’s credibility. In turn, he argued this attack was material to the State’s 

case and contributed to the verdict in violation of his due process rights.

Although Appellant requested an evidentiary hearing, his motion was overruled by 

operation of law without a hearing. This appeal followed. 

II. ISSUES ON APPEAL

Appellant raises the following four related issues on appeal: (1) the trial court erred by 

allowing Kimberly to testify regarding her own history of sexual abuse, as it was not relevant to 

the charge against him; (2) the State improperly relied on Kimberly’s “false” testimony regarding 

Carolina’s attempt to have the charges against her boyfriend dismissed; (3) the trial court erred by 

denying his motion for new trial; and (4) the trial court failed to hold a hearing on his motion for 

new trial. 

III. THE ADMISSION OF KIMBERLY’S TESTIMONY

In his first issue, Appellant contends the trial court erred in admitting Kimberly’s testimony 

regarding her own history of sexual abuse because it was irrelevant to Appellant’s case. The State 

counters that Appellant failed to preserve error, asserting that although Appellant raised an initial 

incident.
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objection to Kimberly’s testimony, he failed to lodge a running objection and did not object when 

the same evidence was admitted at other points in the trial. We agree with the State.

A. Error preservation principles

To preserve error regarding the improper admission of evidence for appellate review, the 

complaining party must make a “timely and specific objection to the complained-of evidence.” 

Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010) (citing Tex. R. App. P. 33.1(a)(1)(A)).

In addition, the complaining party must make an objection every time the complained-of evidence 

is offered “unless the complaining party obtains a running objection or obtains a ruling on his 

complaint in a hearing outside the presence of the jury.” See Lopez v. State, 253 S.W.3d 680, 684 

(Tex. Crim. App. 2008); see also Jett v. State, 319 S.W.3d 846, 855 (Tex. App.—San Antonio 

2010, no pet.) (recognizing same). Stated otherwise, any error “in the admission of evidence is 

cured where the same evidence comes in elsewhere without objection.” Lane v. State, 151 S.W.3d 

188, 193 (Tex. Crim. App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App.

2003). Thus, a party may not complain on appeal about improperly admitted evidence if the same 

or similar evidence is admitted without objection at another point in the trial, either before or after 

the admission of the disputed evidence. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.

1998) (en banc) (“Our rule . . . is that overruling an objection to evidence will not result in reversal 

when other such evidence was received without objection, either before or after the complainedof ruling.”). Nor may a party complain when he has either agreed to the admission of the evidence 

or elicited the evidence himself. See Estrada v. State, 313 S.W.3d 274, 302 (Tex. Crim. App. 2010)

(where appellant stated he had “no objection” to the admission of evidence, he “failed to preserve 

any error in the admission [of the] evidence”); see also Peralta v. State, 338 S.W.3d 598, 608–09 
10

(Tex. App.—El Paso 2010, no pet.) (any error in admitting police officer’s testimony regarding 

victim’s out-of-court statements under the excited-utterance exception was not preserved where 

appellant “elicited the complained of testimony himself on cross examination”).

B. Analysis 

Here, Appellant’s attorney made an initial objection when Kimberly first began to testify 

about the sexual abuse she suffered as a child. However, counsel did not obtain a running objection, 

did not object when evidence of Kimberly’s assault was introduced into evidence at other points 

in the trial, and even elicited testimony on the subject herself. 

First, defense counsel questioned Yvonne on direct examination regarding whether she was 

aware that Kimberly had “gone through something when she was younger.” In response, Yvonne 

testified, without objection, that Kimberly had been assaulted by their mother’s boyfriend. Yvonne 

testified that Carolina called the police, but before the police arrived to arrest the man, Yvonne’s 

brothers, who Carolina had also called, came over and hit him. Yvonne also testified that she 

believed her mother broke up with the man after that and did not see him again. Yvonne was 

permitted to express her opinion that Carolina did not “brush it under the rug.” 

Subsequently, the State questioned Carolina on cross-examination regarding whether she 

had “once dat[ed] a man who sexually assaulted [her] daughter[.]” Without objection, Carolina 

testified at length about the steps she took after she learned of the assault, indicating she

immediately contacted the police because she believed Kimberly and she never saw the man again. 

Upon further questioning by the State—again without objection—Carolina denied that her sons 

beat up the man, claiming the police arrested the man before her sons arrived.
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During her closing arguments, defense counsel repeatedly referred to Kimberly’s 

childhood abuse in support of Appellant’s claim that N.G.’s allegations were the product of 

Kimberly’s “manipulation.” Defense counsel argued Kimberly pressed N.G. into making her 

outcry because she was “still angry and resentful about what happened to her and so now she's 

basically exaggerating and instilling this in her own daughter.” Defense counsel further argued 

that because Kimberly believed her mother “brushed it under the rug,” Kimberly was 

“hypersensitive about the abuse situation” and inclined to “jump to conclusions” in believing her 

daughter had also been abused.

Because Appellant not only failed to object when the State questioned Carolina about 

Kimberly’s past abuse but expressly elicited evidence pertaining to the abuse from Yvonne, 

Appellant may not complain about the admission of the evidence on appeal. See Lopez, 253 S.W.3d 

at 684; Jett, 319 S.W.3d at 855; Peralta, 338 S.W.3d at 608–09.

Appellant’s Issue One is overruled. 

IV. THE STATE’S ALLEGED RELIANCE ON FALSE TESTIMONY

In Issue Two, Appellant argues Kimberly’s testimony that Carolina contacted the district 

attorney’s office seeking dismissal of the charges against her boyfriend was false, and the State 

relied on this false testimony to obtain the conviction in violation of his due process rights. The 

State counters that there is nothing in the record to support a finding that Kimberly’s testimony 

was false, and even if it was false, it was not material to the case such that his due process rights 

were violated. We conclude Appellant has failed to establish a due process violation under these 

circumstances. 
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A. Standard of review and applicable law 

“The Due Process Clause of [the] 14th Amendment can be violated when the State uses 

materially false testimony to obtain a conviction, regardless of whether it does so knowingly.” Ex 

Parte Lalonde, 570 S.W.3d 716, 722 (Tex. Crim. App. 2019) (citing Ex Parte Chabot, 300 S.W.3d 

768, 770–71 (Tex. Crim. App. 2009); Ex Parte Napper, 322 S.W.3d 202, 243 (Tex. Crim. App. 

2010)); see also Ex Parte Chavez, 371 S.W.3d 200, 205-07 (Tex. Crim. App. 2012) (discussing the 

emergence of the rule that even an “unknowing” use of false testimony by the State may constitute 

a due-process claim). However, to rise to the level of a due process violation, the testimony must 

not only be false, “it must also be material.” Ex Parte Lalonde, 570 S.W.3d at 722 (citing Ex Parte 

Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014)). The standard for determining if evidence 

was material is the same as the harmless-error standard for constitutional error. Thus, false 

testimony will be considered material and harmful “unless it can be determined beyond a 

reasonable doubt that the testimony made no contribution to the defendant’s conviction or 

punishment.” Id. (citing Napper, 322 S.W.3d at 241). Stated otherwise, false testimony is only 

considered material if there is a ‘“reasonable likelihood’ that it affected the judgment of the jury.” 

Id. (citing Weinstein, 421 S.W.3d at 665). In determining whether such a likelihood exists, we must 

examine the entire record. See Ex Parte Chavez, 371 S.W.3d at 209 (court determined that an 

“examination of the entire record does not reveal a reasonable likelihood that the jury was affected 

by the false testimony in assessing applicant’s punishment”). 

B. Analysis 

As a preliminary matter, the State contends Kimberly’s testimony cannot be considered 

false because the record does not contain any evidence of an “intent to deceive” the jury as would 
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be required to sustain a perjury conviction under the Penal Code.

13 The State argues that to the 

extent Kimberly misstated what occurred after her outcry, she did so innocently, contending “the 

evidence supports the idea that she was too young at the time to fully comprehend what happened 

after she out-cried to her mother” or she simply “did not have a complete memory of what 

happened” due to the passage of time. The question of Kimberly’s intent, however, is irrelevant to 

the question of whether Appellant’s due process rights were violated. As the Court of Criminal 

Appeals has explained, whether a witness committed perjury is distinct from whether the witness’s 

testimony was false for purposes of determining a due process violation, as the prohibition against 

the State’s use of false testimony is “designed to ensure that the defendant is convicted and 

sentenced on truthful testimony” rather than aiming to punish the witness for perjury. Ex Parte 

Ghahremani, 332 S.W.3d 470, 477–78 (Tex. Crim. App. 2011); see also Ex Parte Chavez, 371 

S.W.3d at 208 (recognizing that a witness’s intent in providing false or inaccurate testimony is “not 

relevant to [a] false-testimony due-process error analysis”). Thus, a witness’s “testimony need not 

be perjured in the penal-code sense for it to be false in the due-process sense”; instead, the key 

question is whether when “considered in its entirety, the witness’s testimony left the jury with a 

false or misleading impression.” Ex Parte Reed, 670 S.W.3d 689, 767 (Tex. Crim. App. 2023), 

cert. denied sub nom. Reed v. Tex., 144 S. Ct. 2716 (2024).

Appellant contends Kimberly’s testimony that Carolina attempted to have the charges 

against her boyfriend dismissed can be considered false under this standard, as it created a “false 

13 Section 37.02 of the Texas Penal Code provides that a person commits the offense of perjury “if, with intent to 

deceive and with knowledge of the statement’s meaning: (1) he makes a false statement under oath or swears to the 

truth of a false statement previously made and the statement is required or authorized by law to be made under oath . 

. . [.]” Tex. Pen. Code Ann. § 37.02(a)(1).
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impression that Carolina takes the side of abusers and that she failed her daughter.” According to 

Appellant, “the State used this narrative throughout trial, and in its closing argument as well,” 

thereby making Kimberly’s testimony material to the State’s case and raising a reasonable 

likelihood that her testimony affected the jury’s verdict.

We will assume for purposes of our analysis that Kimberly’s testimony can be considered 

“false” or misleading for due process purposes, in that it created a false impression of how Carolina 

responded when she learned that her boyfriend had abused Kimberly. However, there are several 

factors that lead us to conclude Kimberly’s testimony on this issue was not “material” to

Appellant’s case such that it was reasonably likely to have affected the jury’s verdict. First, the 

jury was aware before its deliberations that there was a conflict between Kimberly’s testimony 

(that she believed Carolina tried to sweep her boyfriend’s abuse “under the rug”) and the testimony 

of both Carolina and Yvonne (that they believed Carolina took all necessary steps to ensure law 

enforcement and the courts took care of the matter). When a jury convicts a defendant despite 

being aware of inconsistencies in the testimony—meaning that one witness is not being truthful—

that witness’s allegedly false testimony is not considered material. See Ex Parte De La Cruz, 466 

S.W.3d 855, 871 (Tex. Crim. App. 2015) (where defendant claimed a witness provided false 

testimony regarding the location of a shooting, the testimony was not material where the jury was 

aware of the inconsistencies in witness testimony regarding the location, yet nevertheless chose to 

convict the defendant).

In addition, contrary to Appellant’s argument, the State did not focus on Kimberly’s 

testimony on this issue during its closing arguments. Instead, the State focused on Carolina’s 

testimony that an “agency” or “agent” informed her that Kimberly had not been raped, and she did 
15

not know what else to do to help Kimberly at the time. Rather than accusing Carolina of failing 

Kimberly when the abuse came to light, the State argued the “system failed” Kimberly and “more 

should have been done for her.” In turn, the State used the system’s failure to explain why Kimberly 

found it important for N.G. to tell her what happened and argued that Kimberly pressed N.G. to 

make her outcry as she was not “about to let her daughter go through that” and wanted to make 

sure that Kimberly could “find a way forward” and receive the therapy she needed.14

Finally, although Kimberly was undoubtedly an important witness, the State did not rely 

solely on her testimony to establish Appellant’s guilt. To the contrary, N.G. expressly testified at 

trial that Appellant had sexually assaulted her. Several other witnesses—including two law 

enforcement officers and a SANE nurse—testified that N.G. provided consistent statements

describing the abuse, all of whom found her outcry credible. Accordingly, based on the record as 

a whole, we conclude Appellant did not establish that Kimberly’s “false” testimony was material 

to the jury’s verdict, such that his due process rights were violated by its admission. See Ex Parte 

Weinstein, 421 S.W.3d at 668 (finding witness’s false testimony was not material to the defendant’s 

case such that his due process rights were violated where the testimony was not necessary to 

establish his guilt and where there was ample evidence from other sources of his guilt).

Appellant’s Issue Two is overruled. 

14 Moreover, as explained above, it was defense counsel that focused on Kimberly’s testimony in her closing 

arguments by contending that Kimberly pressured N.G. into fabricating her claim of abuse because she was still angry 

about her mother’s alleged failure to protect her after Carolina learned her boyfriend had abused her. 
16

V. DENIAL OF THE MOTION FOR NEW TRIALAND FAILURE TO HOLD A HEARING

In Issues Three and Four, which we consider together, Appellant contends the trial court 

erred in denying his motion for new trial, as Article 40.001 of the Texas Code of Criminal 

Procedure required the trial court to grant his motion based on his discovery that Kimberly had 

provided false testimony at trial. In the alternative, Appellant contends the trial court erred at least

in failing to hold a hearing on his motion. We disagree with both arguments.

A. Standard of review 

An appellate court reviews a trial court’s denial of a motion for new trial for an abuse of 

discretion, “reversing only if no reasonable view of the record could support the trial court’s 

ruling.” Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020) (quoting Burch v. State, 

541 S.W.3d 816, 820 (Tex. Crim. App. 2017)). We do not substitute our own judgment for that of 

the trial court; we must uphold the trial court’s ruling “if it is within the zone of reasonable 

disagreement.” Id.; see also Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)

(recognizing that an appellate court’s role is to “decide whether the trial court’s decision was 

arbitrary or unreasonable”). 

We similarly review a trial court’s decision to deny an evidentiary hearing on a motion for 

new trial for an abuse of discretion. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 

2003) (en banc) (citing Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002)). “The purposes 

of a new trial hearing are (1) to determine whether the case should be retried or (2) to complete 

the record for presenting issues on appeal.” Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 

2009). There is no “absolute right” to a hearing on a motion for new trial, but a trial court abuses

its discretion by failing to hold a hearing “if the motion and accompanying affidavits (1) raise 
17

matters which are not determinable from the record and (2) establish reasonable grounds showing 

that the defendant could potentially be entitled to relief.” Id. Nevertheless, a trial court may rule 

on a motion for new trial based solely on sworn pleadings and affidavits, and that “live testimony 

is not required.” Holden, 201 S.W.3d at 763.

B. Applicable law 

Article 40.001 of the Texas Code of Criminal Procedure provides that “[a] new trial shall

be granted an accused where material evidence favorable to the accused has been discovered since 

trial.” Tex. Code Crim. Pro. Ann. art. 40.001. The Court of Criminal Appeals adopted the following

four-part test in determining whether a new trial is required under Article 40.001: “(1) the newly 

discovered evidence was unknown or unavailable to the movant at the time of his trial; (2) the 

movant’s failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new 

evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and

(4) the new evidence is probably true and will probably bring about a different result on another 

trial.” Keeter v. State, 74 S.W.3d 31, 36–37 (Tex. Crim. App. 2002); see also State v. Arizmendi, 

519 S.W.3d 143, 149 (Tex. Crim. App. 2017) (recognizing same).

C. Analysis 

Appellant contends he was entitled to a new trial pursuant to Article 40.001 based on his 

discovery after trial that Kimberly had provided false testimony, which was “material” to the 

State’s case, on the issue of whether Carolina sought to have the charges against her boyfriend 

dismissed. Appellant, however, provides no analysis of the four factors for granting a new trial, 

and we therefore find that he has not adequately briefed this issue. Tex. R. App. P. 38.1(i)

(indicating that an appellant’s brief “must contain a clear and concise argument for the contentions 
18

made, with appropriate citations to authorities and to the record”); see also Blanco v. State, No. 

08-15-00082-CR, 2017 WL 604050, at *7 (Tex. App.—El Paso Feb. 15, 2017, no pet.) (not 

designated for publication) (where appellant failed to adequately brief an issue as required by the 

Rules of Appellate Procedure, the court would not make his arguments for him) (citing Wyatt v. 

State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (where appellant alleged that he was not 

properly magistrated but made no legal argument to support his allegation, court would “not make 

appellant’s arguments for him and [held] the allegation to be inadequately briefed”)).

Appellant, however, argues he is entitled to a new trial independent of the statute, relying

on our sister court’s opinion in Yates v. State, 171 S.W.3d 215, 221 (Tex. App.—Houston [1st Dist.] 

2005, pet. ref’d), which held that “[g]enerally, if a witness has testified to material, inculpatory 

facts against a defendant and, after the verdict but before a motion for new trial has been ruled 

upon, the witness makes an affidavit that he testified falsely, a new trial should be granted.” Yates, 

171 S.W. 3d at 221 (citing Williams v. State, 15 S.W.2d 449, 451 (Tex. Crim. App. 1964)). In Yates, 

the defendant who was accused of drowning her children pled not guilty by reason of insanity, 

arguing she suffered from such severe postpartum depression that she did not know “right from 

wrong” at the time. Yates, 171 S.W. 3d at 219–22. Five mental health experts testified at trial in 

her favor, but one expert testified that he believed the defendant knew right from wrong, basing 

his opinion in part on his belief that the defendant’s actions had been motivated by an episode of 

“Law and Order” (on which he had worked as a consultant) that depicted a case in which a mother 

suffering from postpartum depression had been found not guilty by reason of insanity in the 

drowning deaths of her children. Id. at 219, 222. 
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After the jury rejected the defendant’s insanity defense and found her guilty of murder, 

defense counsel learned there was no such “Law and Order” episode and sought a new trial on the 

basis of the expert’s false testimony. Id. at 221–22. The court of appeals held that the trial court 

erred in denying the motion, concluding the expert’s testimony was “critical to establish the State’s 

case,” as he was the only mental health expert who testified that the defendant knew right from 

wrong, and therefore there was a reasonable likelihood that the expert’s testimony affected the 

jury’s verdict. Id. at 222.

Appellant argues we should follow Yates and hold that the trial court in his case erred in 

denying his motion for new trial based on his discovery that Kimberly provided false testimony. 

As explained above, however, we have already concluded that Kimberly’s allegedly false 

testimony was not critical to establish the State’s case. Unlike the situation in Yates in which the 

only witness to testify in the State’s favor testified falsely, the State in Appellant’s case presented

the testimony of several other witnesses, including N.G. herself, to support a finding of Appellant’s 

guilt. Accordingly, the trial court could have reasonably concluded that even if Kimberly’s 

testimony was false, it was not material to the State’s case and therefore did not warrant a new 

trial. 

For similar reasons, we conclude the trial court could have reasonably found that there was 

no basis for holding a hearing on Appellant’s motion for new trial. Although Appellant contends a 

hearing was necessary because his motion raised “issues” that were not determinable from the 

record, he has not explained what those issues were or why he believes live testimony was required 

to resolve any of the issues raised in his motion. Nor do we believe live testimony was required to 

do so. As explained above, the key question in resolving Appellant’s motion was not whether 
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Kimberly provided false testimony but whether her allegedly false testimony was material to the 

State’s case. And we are able to resolve that question in the State’s favor based the trial record and 

the evidence Appellant submitted in support of his motion without the need for a record of live 

testimony.

Accordingly, we conclude the trial court did not abuse its discretion in failing to hold a 

hearing on Appellant’s motion for new trial and did not err in refusing to grant the motion. 

Appellant’s Issues Three and Four are overruled.

VI. CONCLUSION

The trial court’s judgment is affirmed.

LISA J. SOTO, Justice

September 27, 2024

Before Alley, C.J., Palafox, and Soto, JJ. 

(Do Not Publish)