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

                 MEMORANDUM                      OPINION


      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
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
                                          2
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,

                                           3
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
                                           4
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

                                         5
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


                                           6
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)).

                                                   7
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

                                   8
      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 thirty-
nine, namely the prosecutor’s uncontested characterizations of their courtroom

                                         9
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

                                         10
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
                                          11
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

                                        12
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.

                                         13
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.


                                          14
      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

                                          15
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.




                                         16
                                 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).




                                       17
