Affirmed and Memorandum Opinion filed August 13, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00159-CR

JOHN JOSEPH PRIEST, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1042290

M E M O R A N D U M O P I N I O N

A jury convicted appellant John Joseph Priest of indecency with a child and 

assessed his punishment at fifteen years in prison. See Tex. Penal Code Ann. 

§ 21.11(a)(1) (West 2011). Appellant raises four issues on appeal. 

In his first issue, appellant contends the trial court erred in failing to find 

purposeful discrimination in the State’s use of peremptory strikes. We hold that 

the trial court did not err in denying appellant’s Batson challenge because appellant 
2

failed to prove purposeful discrimination in the State’s use of peremptory strikes. 

See Batson v. Kentucky, 476 U.S. 79 (1986). In his second issue, appellant argues 

that the trial court’s exclusion of evidence violated his constitutional right to 

present a complete defense. See Holmes v. South Carolina, 547 U.S. 319, 324 

(2006). We hold that appellant failed to preserve this issue for appellate review. 

In his third issue, appellant contends that the trial court abused its discretion when 

it failed to hold a hearing on his motion for new trial. We hold that because the 

issues raised in appellant’s motion for new trial were determinable from the record,

the trial court did not abuse its discretion when it denied the motion without 

conducting an evidentiary hearing. 

In his fourth issue, appellant contends the trial court’s aforementioned errors

resulted in cumulative harm. Because appellant has shown no error by the trial 

court, there can be no cumulative error or harm. Appellant’s fourth issue is 

overruled. We affirm the judgment of the trial court.

BACKGROUND

Appellant was charged with indecency with a child. At the beginning of 

voir dire, the venire consisted of sixty-five panelists. After challenges for cause, 

forty veniremembers remained, three of whom were identified in the record as 

African-American. Using its peremptory challenges, the State struck all three 

African-American members, leaving no African-American member on the panel. 

Following voir dire, appellant alleged that the State peremptorily struck 

African-American veniremembers eleven, twenty-four, and thirty-nine, thereby 

violating Batson. The prosecutor explained that she struck veniremember eleven

because he did not seem “enthusiastic,” and he was under the age of thirty and 

childless. As to member twenty-four, the prosecutor explained that she struck that 

juror because he was also under the age of thirty and childless, and he did not “sit 
3

up straight.” Lastly, as to member thirty-nine, the prosecutor explained that she 

struck that juror because she was “very slow in answering” and “did not fill out big 

portions of her jury card,” which made her seem “indecisive.” 

Appellant did not dispute the prosecutor’s characterization of the panelists’ 

demeanor. Instead, appellant argued that the prosecutor failed to strike similarly 

situated veniremembers who were also under the age of thirty and childless, 

specifically members seventeen and thirty-five. The prosecutor responded that she

had more information about veniremember seventeen than members eleven and

twenty-four, and that member thirty-five was “quick in answering” compared to 

member thirty-nine. The trial court overruled appellant’s Batson objections. 

During the trial, appellant argued that the allegations of sexual assault were 

tainted by the child complainant’s medical conditions and pressure from her 

parents. To support this theory, appellant called Dr. Carmen Petzold, a 

psychologist and licensed sex offender treatment provider, to testify about her 

opinion based on the complainant’s psychiatric record. The State objected to Dr. 

Petzold’s proposed testimony because it would invade the province of the jury to 

determine the truth of the complainant’s allegations against appellant. To 

determine the admissibility of Dr. Petzold’s testimony, the trial court conducted a 

hearing. The only issue presented at the hearing was whether Dr. Petzold should 

be allowed to testify as to any specifics of the complainant’s psychiatric record. 

The trial court ruled that “[D]r. Petzold can testify as to children, in general, having 

false memories and what types of specifics might be indicative of false memories

but the Court will limit her testimony in front of the jury as to any specifics [of the

complainant].” The court explained that it was limiting Dr. Petzold’s testimony 

because that testimony would be based on psychiatric evaluations of the 

complainant that were prepared by third parties who did not testify in court, 
4

specifically the child’s therapist and her school staff. The court also noted that 

there is a double-hearsay problem because the evaluations were based on hearsay 

from the complainant’s mother and teachers. 

Appellant was convicted and sentenced to fifteen years in prison. Appellant 

then filed a motion for new trial alleging that the exclusion of Dr. Petzold’s 

testimony and the school records violated his constitutional right to present a 

complete defense. The trial court signed an order denying the motion without 

conducting an evidentiary hearing. This appeal followed.

ANALYSIS

I. The trial court did not err in overruling appellant’s Batson challenge 

because he failed to prove purposeful discrimination in the State’s use

of peremptory strikes.

In his first issue, appellant contends the trial court clearly erred in failing to 

find purposeful discrimination in the State’s use of peremptory strikes. 

A. Standard of review and applicable law

The Equal Protection Clause of the United States Constitution forbids 

counsel from exercising peremptory strikes on the basis of race. See U.S. Const. 

amend. XIV, § 1; Batson, 476 U.S. at 89. A defendant is entitled to assert this type 

of equal-protection violation regardless of whether he is of the same race as the 

stricken panelists. See Powers v. Ohio, 499 U.S. 400, 402 (1991); Nieto v. State, 

365 S.W.3d 673, 676 (Tex. Crim. App. 2012). The exclusion of even one juror 

with racial motive invalidates the jury selection process and requires a new trial. 

Jones v. State, 431 S.W.3d 149, 154 (Tex. App.—Houston [14th Dist.] 2013, pet. 

ref’d); see also Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (reversing 

conviction based on wrongful exclusion of one juror). 

Appellate courts review a trial court’s ruling on a Batson challenge for clear 
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error, focusing on the genuineness rather than the reasonableness of the 

prosecutor’s explanation. Nieto, 365 S.W.3d at 676; Jones, 431 S.W.3d at 154. 

We will not reverse a trial court’s ruling unless we are left with a firm conviction 

that the trial court made a mistake. See Harris v. State, 827 S.W.2d 949, 955 (Tex.

Crim. App. 1992). The evidence offered at trial is viewed in the light most 

favorable to the trial court’s ruling. Williams v. State, 804 S.W.2d 95, 101 (Tex.

Crim. App. 1991). 

A Batson challenge consists of three steps. Nieto, 365 S.W.3d at 675–76 

(citing Hernandez v. New York, 500 U.S. 352, 358 (1991)); Jones, 431 S.W.3d at 

154. First, a defendant must make a prima facie showing that the prosecutor has 

exercised peremptory challenges on the basis of race. Id. Second, if the necessary 

showing has been made, the burden shifts to the State to articulate a race-neutral 

reason for striking the veniremember in question. Id. Third, the trial court must 

determine whether the defendant has proved purposeful discrimination. Id. 

When the prosecutor has articulated race-neutral reasons for peremptory 

challenges and the trial court has ruled on the ultimate question of purposeful 

discrimination, the issue of whether the defendant has established a prima facie 

case is moot and not subject to appellate review. See Flores v. State, 33 S.W.3d 

907, 925 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (citing Malone v. 

State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996)). The ultimate burden of 

persuasion regarding racial motivation rests with, and never shifts from, the 

opponent of the strike. See Peetz v. State, 180 S.W.3d 755, 758 (Tex. App.—

Houston [14th Dist.] 2005, no pet.) (citing Purkett v. Elem, 514 U.S. 765, 767-68 

(1995)); see also Moss v. State, 877 S.W.2d 895, 899 (Tex. App.—Waco 1994, no 

pet.) (“On appeal, the defendant bears the burden of showing error by the trial 

court; there is no burden on the state on appeal to convince us that its strikes were 
6

race neutral.”).

B. Appellant failed to prove purposeful discrimination in the State’s 

use of peremptory strikes against African-American 

veniremembers.

In this case, the State explained its strikes to the trial court rather than 

disputing appellant’s argument for a prima facie case; therefore, the first step of the 

Batson analysis is moot. See Flores, 33 S.W.3d at 925. Turning to the second 

step, we conclude that the State’s explanations for striking veniremembers eleven, 

twenty-four, and thirty-nine are facially race neutral. The prosecutor explained 

that she struck these members based on factors such as their demeanor, age, lack of 

children, and failure to complete the jury card. Because race plays no overt role in 

these explanations, they are facially race neutral. Jones, 431 S.W.3d at 155.

In the third step, the court must evaluate the prosecutor’s race-neutral 

explanations to determine whether those explanations are genuine or merely a 

pretext for purposeful discrimination. Id. Appellant argues that (1) the State 

disproportionately used its peremptory strikes to remove African-American

veniremembers, and (2) the record does not support the State’s reasons for striking

veniremembers eleven, twenty-four, and thirty-nine. We analyze these arguments 

to determine whether the trial court clearly erred in failing to find that appellant 

carried his burden to prove purposeful discrimination in the State’s use of 

peremptory strikes. 

Viewing the record in the light most favorable to the trial court’s ruling, we 

hold that the court did not clearly err in overruling appellant’s Batson objections. 

Here, the State used three of its ten peremptory strikes to eliminate all three 

African-American members from the venire panel of forty members. Appellant

argues that, statistically, this is a disproportionate use of peremptory strikes against 
7

African-American members. To support his argument, appellant cites Vargas v. 

State, 859 S.W.2d 534, 534–35 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d),

in which the prosecutor peremptorily struck five out of six African-American 

members from a panel of thirty-six members. In Vargas, however, a statistical 

analysis was not determinative of whether the State exercised its peremptory 

strikes in violation of Batson. See id. Instead, it was the combined weight of all 

relevant factors, including the prosecutor’s failure to strike similarly situated 

veniremembers, that ultimately convinced the Vargas court that the prosecutor’s 

explanations were pretextual. See id. at 535.

1

Appellant also argues that a comparative analysis of the State’s strikes 

indicates purposeful discrimination. See Jones, 431 S.W.3d at 155–56 (explaining 

that comparative analysis is used to identify disparate treatment, which exists when 

“the reason a prosecutor gives for striking an African-American veniremember 

applies just as well to a non-African-American member allowed to serve on the 

jury”). We disagree. After voir dire, the prosecutor, defense counsel, and the trial

court engaged in the following discussion:

DEFENSE COUNSEL: I’d like to have a Batson challenge [on 

veniremembers 11, 24, and 39].

. . . .

PROSECUTOR: So for Number 11, the State’s reasons were he has 

no children, he is under the age of 30, and he just didn’t seem like he 

was really into being on the jury. He just didn’t seem very 

enthusiastic; so those are my reasons for him. And Number 24, that 

 

1

See also Watkins v. State, 245 S.W.3d 444, 452 (Tex. Crim. App. 2008) 

(“[d]isproportionate use of peremptory challenges would obviously serve to establish a prima 

facie case for purposeful discrimination . . . . But this factor does not alone establish that . . . the 

State’s explanations were [pretextual].”); Nieto, 365 S.W.3d at 679 (“The ‘more powerful’

evidence of racial discrimination was demonstrated by a comparison of similarly situated 

[veniremembers].”) (citing Miller-El v. Dretke, 545 U.S. 231, 241 (2005)).
8

same reason, no kids, he’s 26 years old . . . he just appeared to not 

really care about the case, didn’t really sit up straight and just didn’t 

seem very interested in the case. [Number 39] did not fill out big 

portions of her jury card. [F]or example, she put “not applicable” for 

her job. [W]hen she was asked questions during voir dire, [s]he was 

very slow in answering. . . . [S]he seemed indecisive.

THE COURT: Any response?

DEFENSE COUNSEL: Judge, I would say more specifically, in 

regards to Juror Number 24 . . . as far as they did not have any kids 

and they were young . . . . Number 17 [also] has no kids . . . .

PROSECUTOR: I didn’t strike 17.

DEFENSE COUNSEL: Exactly. That’s my point . . . . As far as to 

Juror Number 35, also, [he is also] 27 years old and has no children 

and is the same age as Number 24. [The prosecutor] did not strike 35 

. . . .

THE COURT: Is there something that would distinguish them, in the 

State’s mind, between 17 and 11?

PROSECUTOR: Yes. I have a lot of information for Number 17 . . . 

[t]han I do [sic] Number 24. And Number 11 and Number 39, which 

are basically blank boxes for me, I just don’t have a lot of information 

from the three panel members that the Defense is Batsoning on. And 

that was another reason why the State struck those three, because I 

just did not have a lot of information from them. Again, they just 

didn’t seem very enthusiastic and participatory during the process. . . . 

THE COURT: But the challenge as to 11 and 24 is overruled. The 

challenge to 39, which you were getting to —

. . . .

PROSECUTOR: Okay. And then for Number 39, the reason I struck 

her, . . . I have no information on her. She was very terse in her 

responses . . . [t]he answers I did get from Number 39 were just 

indicative that she was indecisive, as opposed to Number 35, who did 

give her answers she seemed to be very quick in answering. She 

seemed sure in her responses. She never wavered. She didn’t take 
9

her time . . . .

. . . .

THE COURT: 39 is overruled. Okay.

DEFENSE COUNSEL: Judge, . . . in light of the Batson challenges, I 

believe that the Batson challenge as to all three jurors, Number 11, 25, 

and 39 — we request that one of those jurors be placed . . . .

THE COURT: That request is noted but denied. 

This exchange shows that the prosecutor based her strikes in part on the 

panelists’ demeanor. More specifically, the prosecutor asserted that veniremember 

eleven did not look “enthusiastic” about being a juror, member twenty-four did not 

“sit up straight,” and member thirty-nine “was very slow in answering.” The 

demeanor of a potential juror, such as body language which indicates to the 

prosecutor that the juror does not wish to be a part of the proceedings, is a valid 

reason to exercise a peremptory strike. See Nieto, 365 S.W.3d at 680 (citing 

Yarborough v. State, 947 S.W.2d 892, 895–96 (Tex. Crim. App. 1997)). 

Furthermore, the prosecutor’s statements on the record about the panelists’

demeanor are taken as established when they are undisputed by opposing counsel 

and unquestioned by the trial judge. See Yarborough, 947 S.W.2d at 895; Emerson 

v. State, 820 S.W.2d 802, 804 (Tex. Crim. App. 1991) (holding undisputed 

statements by attorneys in support of their positions in Batson hearing constitute 

valid proof). 

Here, we take the prosecutor’s description of the panelists’ demeanor as

established because appellant did not rebut the prosecutor’s observations. See 

Yarborough, 947 S.W.2d at 895; Emerson, 820 S.W.2d at 804. Because the record 

contains evidence that sets apart veniremembers seven, twenty-four, and thirtynine, namely the prosecutor’s uncontested characterizations of their courtroom
10

behavior, the trial court did not clearly err in concluding that appellant failed to 

prove the prosecutor’s reasons for striking African-American members were 

pretextual. See United States v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988) 

(holding no purposeful discrimination even though similarly situated 

veniremember was not struck because prosecutor partially based his neutral 

explanations on panelist’s demeanor); Moss, 877 S.W.2d at 899 (holding no 

purposeful discrimination even though similarly situated veniremember was not

struck because appellant failed to challenge prosecutor’s characterization of

panelist’s demeanor). 

Moreover, the prosecutor gave other race-neutral reasons for not striking

veniremembers seventeen and thirty-five, who were under the age of thirty and 

childless. The prosecutor explained that she did not strike other jurors with similar 

characteristics because she had more information about veniremember seventeen 

than member twenty-four, and member thirty-five was “quick in answering”

compared to member thirty-nine. 

Appellant does not dispute that veniremember thirty-five was “quick in 

answering.” Instead, appellant disputes the prosecutor’s explanation that she had 

more information on veniremember seventeen than member twenty-four because,

according to appellant, they both gave similar answers during voir dire. The record 

reflects that there were no individualized questions for veniremember seventeen. 

The record also shows that the prosecutor based her explanations on the jury card 

information. The prosecutor said: “I have a lot of information for Number 17 . . . 

[t]han I do Number 24. And Number 11 and Number 39, which are basically blank 

boxes for me, I just don’t have a lot of information from the three panel members 

that the Defense is Batsoning on.” 

Appellant, as the opponent of the strike, had the ultimate burden of 
11

persuasion in proving racial motivation. See Peetz, 180 S.W.3d at 758; see also 

Moss, 877 S.W.2d at 899. Appellant did not ask for the jury cards to be made part 

of the record. Viewing the record in the light most favorable to the trial court’s 

ruling, we see nothing to indicate that the prosecutor’s explanation regarding the 

amount of information she had about each veniremember was pretextual. Because 

the jury cards do not appear in the appellate record, we are not left with a firm 

conviction that the trial court made a mistake. See Nieto, 365 S.W.3d at 676; 

Harris, 827 S.W.2d at 955; Williams, 804 S.W.2d at 101.

Having considered the entire voir dire and the parties’ arguments, we 

conclude appellant did not demonstrate that any of the State’s explanations for its 

strikes were a pretext for purposeful discrimination. Given the state of the record 

regarding the stricken veniremembers’ demeanor and the prosecutor’s 

uncontradicted statements regarding the amount of information she had about each 

member, the trial court did not clearly err in ruling that the State’s proffered 

reasons for the strikes were not a pretext for racial discrimination. For these 

reasons, we overrule appellant’s first issue.

II. Appellant failed to preserve his constitutional challenge to the trial 

court’s exclusion of Dr. Petzold’s testimony and the complainant’s 

records.

In his second issue, appellant argues that the trial court’s exclusion of

evidence violated his constitutional right to present a complete defense. See

Holmes, 547 U.S. at 324 (explaining that right to present defense is rooted in Due 

Process Clause of Fourteenth Amendment and Compulsory Process and

Confrontation Clauses of Sixth Amendment to the U.S. Constitution). Appellant 

specifically complains of the trial court’s exclusion of two related items of 

evidence. Appellant argues that the trial court erred when it prevented him from 

questioning his psychologist expert, Dr. Carmen Petzold, regarding specific 
12

information contained in a packet of the complainant’s records from the Humble 

Independent School District, which included reports prepared by two 

psychologists. Appellant also complains about the trial court’s refusal to admit the 

packet of records.

The improper exclusion of evidence may raise constitutional concerns: (1) 

when an evidentiary rule categorically and arbitrarily prohibits the defendant from 

offering relevant evidence that is vital to his defense; or (2) when a trial court 

erroneously excludes evidence that is vital to the case, and the exclusion precludes

the defendant from presenting a defense. Ray v. State, 178 S.W.3d 833, 835 (Tex. 

Crim. App. 2005). The Court of Criminal Appeals has noted, however, that 

erroneous evidentiary rulings rarely rise to the level of denying a fundamental 

constitutional right to present a meaningful defense. Wiley v. State, 74 S.W.3d 

399, 405 (Tex. Crim. App. 2002). A constitutional violation occurs when the trial 

court’s clearly erroneous ruling excludes otherwise relevant, reliable evidence that

forms such a vital portion of the case as to preclude the defendant from presenting 

a defense. Id.

To preserve a complaint for appellate review, the record must show that the 

complaint was presented to the trial court “with sufficient specificity to make the 

trial court aware of the complaint, unless the specific grounds were apparent from 

the context.” Tex. R. App. P. 33.1(a)(1)(A). “Under this rule, an objection must 

be both timely and specific, alerting the trial court to any and every legal basis 

upon which the appellant should desire to predicate a claim later on appeal.” Leza 

v. State, 351 S.W.3d 344, 361 n. 67 (Tex. Crim. App. 2011). To complain about 

the exclusion of certain evidence on appeal, therefore, an appellant must 

demonstrate that he preserved his argument by offering the evidence during trial, 

and by making the trial court aware of the substance of the evidence and the basis 
13

for its admission. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(2); Leza, 351 

S.W.3d at 360–61. Even constitutional errors may be waived by failing to timely 

complain in the trial court. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. 

App. 1995); Wright v. State, 374 S.W.3d 564, 575–76 (Tex. App.—Houston [14th 

Dist.] 2012, pet. ref’d).

In the trial court, appellant argued that the allegations of sexual assault were 

tainted by the complainant’s medical conditions and pressure from her parents. To 

support this defense theory, appellant called Dr. Petzold to testify about her 

opinion based, at least in part, on the complainant’s Humble Independent School 

District records. Appellant also sought to admit the actual records into evidence.

The State lodged a hearsay objection to the records. The State objected to Dr. 

Petzold’s proposed testimony on the basis that it would invade the province of the 

jury to determine whether the complainant was being truthful in her allegations 

against appellant. 

The trial court conducted a Daubert hearing on the admissibility of Dr. 

Petzold’s testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 

(1993); Coble v. State, 330 S.W.3d 253, 270–80 (Tex. Crim. App. 2010) (applying 

Daubert principles to admissibility of psychiatrist’s testimony addressing future 

dangerousness of defendant). The only issue presented at the hearing was whether 

Dr. Petzold should be allowed to testify as to any specifics found in the 

complainant’s school records. The trial court held that Dr. Petzold could testify in 

general terms on several relevant subjects, including: children experiencing false 

memories, the causes of false memories, the types of things that might be 

indicative of false memories; proper forensic interviewing techniques for child 

sexual abuse victims and any irregularities she found in the recording of the 

complainant’s forensic interview; and delayed outcries by sexual abuse victims. 
14

The trial court prohibited Dr. Petzold from testifying about any specifics that might 

be related to the complainant beyond those mentioned above. The trial court, 

noting the existence of a double hearsay problem in the records, sustained the 

State’s hearsay objection to the admission of the Humble Independent School 

District records.

The record reflects that although appellant made several arguments 

regarding why this evidence should be admitted, including that it was covered by 

exceptions to the hearsay rule, he made no argument during trial that exclusion of 

this evidence violated his constitutional right to present a complete defense. In 

other words, at trial, appellant failed to alert the trial court in any way that its

evidentiary rulings would violate any of his constitutional rights. Appellant

instead waited until his motion for new trial to make his argument that the trial 

court’s exclusion of this evidence violated his constitutional right to present a 

defense. We conclude that appellant failed to preserve this issue for appellate 

review. See Rodriguez v. State, 368 S.W.3d 821, 826 (Tex. App.—Houston [14th 

Dist.] 2012, no pet.) (where trial court excluded defensive evidence on basis of 

State’s hearsay objection and defendant waited until appeal to raise federal 

constitutional claim, constitutional claim was waived). We overrule appellant’s 

second issue.

III. The trial court did not abuse its discretion when it denied appellant’s 

motion for new trial without a hearing because the motion raised no

matters not determinable from the record.

In his third issue, appellant contends the trial court abused its discretion by 

failing to hold a hearing on his motion for new trial because he raised matters not 

determinable from the record that would entitle him to a new trial. See Wallace v. 

State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). We disagree.
15

A defendant’s right to an evidentiary hearing on a motion for new trial is not 

an absolute right, and we will not reverse a trial court’s failure to hold a hearing 

unless the trial court abused its discretion. Wallace, 106 S.W.3d at 108. A trial 

court abuses its discretion in failing to hold a hearing when the motion for new trial 

and accompanying affidavits (1) raise matters that are not determinable from the 

record, and (2) establish reasonable grounds showing that the defendant could 

potentially be entitled to relief. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. 

App. 2009).

In addition to timely filing a motion with supporting affidavits that 

demonstrate reasonable grounds for believing that some error has occurred, a 

defendant must also present the motion to the trial court. See Tex. R. App. P. 21.6;

Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). In order to present a 

motion for new trial, the movant must give the trial court actual notice that it has 

timely filed a motion for new trial and request a hearing on the motion. See Rozell, 

176 S.W.3d at 230. Assuming without deciding that appellant met the presentment 

requirement when he filed his motion for new trial, we turn to the merits of 

appellant’s third issue.

In his motion for new trial, appellant alleged that the trial court’s decision to 

exclude the complainant’s Humble Independent School District records and to 

prevent Dr. Petzold from testifying about the specific contents of those records

violated his constitutional right to present a complete defense. As discussed in Part 

II above, this subject was litigated during trial. Appellant’s motion for new trial 

and attached affidavit discuss the same evidence and offer the trial court new legal 

reasons why it should revisit its earlier evidentiary ruling. Even if this were a 

proper use of a motion for new trial, which we need not decide, we conclude that

the issue raised in appellant’s motion for new trial was determinable from the 
16

record. Therefore, appellant was not entitled to a hearing on his motion. See 

Lempar v. State, 191 S.W.3d 230, 235 (Tex. App.—San Antonio 2005, pet. ref’d) 

(holding trial court’s evidentiary ruling was determinable from the record and 

defendant therefore was not entitled to hearing on motion for new trial). 

We hold that the trial court did not abuse its discretion when it denied 

appellant’s motion for new trial without conducting an evidentiary hearing because 

the motion did not raise matters that were not determinable from the record. Id.; 

Wright v. State, 178 S.W.3d 905, 929 (Tex. App.—Houston [14th Dist.] 2005, pet. 

ref’d). We overrule appellant’s third issue.

IV. There was no cumulative impact of the trial court’s errors that would 

require reversal.

In his fourth issue, appellant contends that the trial court’s aforementioned 

errors resulted in cumulative harm. A number of errors, even if harmless when 

considered separately, may be harmful in their cumulative effect. Chamberlain v. 

State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); Melancon v. State, 66 S.W.3d 

375, 385 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Non-errors, 

however, may not cumulatively produce harm. Hughes v. State, 24 S.W.3d 833, 

844 (Tex. Crim. App. 2000). Because appellant has shown no error by the trial 

court, there can be no cumulative error or harm. Appellant’s fourth issue is 

overruled.
17

CONCLUSION

Having overruled each of appellant’s four issues on appeal, we affirm the 

trial court’s judgment.

/s/ J. Brett Busby

Justice

Panel consists of Justices Jamison, Busby, and Brown.

Do Not Publish — TEX. R. APP. P. 47.2(b).