Opinion issued July 28, 2015




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                              ————————————
                                NO. 01-14-00397-CR
                             ———————————
                            ANA TRUJILLO, Appellant
                                           V.
                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 338th District Court
                             Harris County, Texas
                         Trial Court Case No. 1421621


                           MEMORANDUM OPINION

      A jury convicted Ana Trujillo of murder1 and assessed punishment at life

imprisonment. In three issues, she asserts that: (1) she was denied counsel during

part of the time allotted to prepare and file a motion for new trial, (2) the trial court


1
      TEX. PENAL CODE ANN. § 19.02 (West 2011).
erroneously denied her motion for a mistrial after the State asked about improper

character evidence, and (3) her trial counsel rendered ineffective assistance by

electing to save an expert witness until the punishment phase of the trial. We

affirm.

                                    Background

      Trujillo and her boyfriend, Stefan Andersson, took a cab from a Houston bar

to Andersson’s nearby condo early one morning. Once inside the condo, they

began to have a physical altercation, which quickly escalated. In the course of the

fight, Trujillo bludgeoned Andersson’s head at least 25 times with one of her high-

heeled shoes. She called the police, who found Andersson dead. Trujillo told police

that Andersson attacked her and she killed him in self-defense. Police processed

the scene, took Trujillo’s statement, and arrested her for murder.

      At the guilt–innocence phase of her trial, Trujillo contended that she acted in

self-defense. She adduced evidence that Andersson had been angry on the night of

the fight and was drunk when he died. She argued that her self-defense theory was

plausible given the forensic and medical evidence. The jury rejected this theory

and convicted Trujillo of murder.

      At the punishment phase of her trial, Trujillo raised the punishment-

mitigation claim of sudden passion. She supported this theory with the testimony

of Julia Babcock, a licensed professional counselor. Babcock testified that


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Trujillo’s relationship with Andersson was not abusive; however, Trujillo had

suffered abuse in previous relationships, which caused her to “overreact.”

      Also during the punishment phase, Trujillo took the stand in her own

defense. The State asked Trujillo about an episode when she had bitten a man on

the cheek without provocation. Trujillo objected; the trial court sustained the

objection and instructed the jury to disregard. Trujillo moved for a mistrial, which

the court denied.

      The jury assessed punishment at life imprisonment. The trial court sentenced

Trujillo on April 11; she had until May 11 to file a motion for new trial. On May 7,

she timely filed a notice of appeal. On May 9 her trial counsel withdrew

representation. The trial court determined that Trujillo was indigent and appointed

new appellate counsel. The parties disagree on when new counsel was appointed;

the State contends counsel was appointed on May 7; Trujillo maintains that she had

no appellate counsel until May 14, three days after the motion for new trial was

due. Regardless, Trujillo never filed a motion for new trial.

                    Denial of Counsel to File Motion for New Trial

      In her first issue, Trujillo contends that she was unconstitutionally deprived

of representation during part of the time allotted to her to prepare and file a motion

for new trial.




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A.    Standard of review

      In Texas, “[t]he defendant may file a motion for new trial before, but no

later than 30 days after, the date when the trial court imposes or suspends sentence

in open court.” TEX. R. APP. P. 21.4. The 30-day window to file a motion for new

trial is a “critical stage” of the proceedings against the defendant. Cooks v. State,

240 S.W.3d 906, 911 (Tex. Crim. App. 2007). The Sixth Amendment guarantees

the right to effective assistance of counsel during every critical stage. U.S. CONST.

amend. VI; see Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 256–57 (1967).

      “However, there still exists, in cases like this where a defendant is

represented by counsel during trial, a rebuttable presumption that this counsel

continued to adequately represent the defendant during this critical stage.” Cooks,

240 S.W.3d at 911. If a defendant demonstrates that he was deprived of adequate

counsel during this 30-day window, “this deprivation of counsel is subject to a

harmless error or prejudice analysis.” Id. When an appellant alleges on appeal a

“facially plausible claim that could have been alleged in a motion for new trial,”

the error is not harmless beyond a reasonable doubt. See id. at 912.

B.    Presumption of adequate representation

      Here, Trujillo was represented by trial counsel for 28 out of the 30 days

given to file a motion for new trial. She was not appointed appellate counsel until




                                         4
after the deadline to file a motion for new trial had expired.2 Therefore, she rebuts

the presumption that she was represented during the entire 30-day critical stage.

See Bearman v. State, 425 S.W.3d 328, 330 (Tex. App.—Houston [1st Dist.] 2010,

no pet.) (presumption rebutted when trial counsel withdrew two weeks after

sentencing and “the record clearly shows that for the second two weeks of the 30–

day period after sentencing, appellant was not represented by counsel at all.”).

C.    Harm

      “We also decide, however, that this deprivation of counsel during the 30–

day critical stage for filing a motion for new trial was harmless beyond a

reasonable doubt.” Cooks, 240 S.W.3d at 911–12. In Cooks, the defendant defeated

the presumption by showing that he was without representation during the first 20

days of the 30–day period, but the error was harmless beyond a reasonable doubt

because his brief presented no facially plausible claims that would have been

raised in a timely filed motion for new trial. See id. at 912; see also Mashburn v.

State, 272 S.W.3d 1, 5 (Tex. App.—Fort Worth 2008, pet. ref’d) (no harm when

appellant does not identify purpose for motion for new trial). In Bearman, we
2
      The State contends that Trujillo’s appellate counsel was appointed on May 7
      instead of May 14, and thus there was no gap in representation. The trial court
      issued one order finding Trujillo indigent, memorializing her request to be
      appointed appellant counsel, and appointing her appellant counsel in accordance
      with that request. The court and Trujillo signed the order and wrote the date May
      7; Trujillo’s new attorney signed the order but wrote the date May 14. The docket
      sheet records appointment of appellate counsel on May 14. Because we ultimately
      conclude that any error was harmless, we do not need to resolve the timeline
      dispute.
                                          5
found a deprivation of counsel to not be harmless beyond a reasonable doubt when

the defendant identified “what issues he would raise [and] how the result of the

case would have been changed had the issue been raised” in a motion for new trial.

425 S.W.3d at 331.

      Trujillo does not identify what issues she would have raised in a motion for

new trial nor how the result of her case would have been changed had the issue

been raised. Her brief alleges no error that required a motion for new trial for the

development of a record. And there is no motion to abate in the appellate record.

Accordingly, this case is more like Cooks than Bearman.

      We conclude that any deprivation of counsel that might have occurred

during the period to file a new-trial motion was harmless beyond a reasonable

doubt. We overrule Trujillo’s first issue.

                        Inadmissible Character Evidence

      In her second issue, Trujillo argues that the trial court should have granted

her motion for a mistrial after the jury heard improper character evidence.

A.    Standard of review

      We review a trial court’s denial of a motion for mistrial for an abuse of

discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is

an appropriate remedy in “extreme circumstances” for a narrow class of highly

prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.


                                             6
App. 2009). A prompt instruction from the trial judge is usually enough to cure the

error and avoid the need for a mistrial. Wesbrook v. State, 29 S.W.3d 103, 115–16

(Tex. Crim. App. 2000). Whether an error requires a mistrial must be determined

by the particular facts of the case. Ladd, 3 S.W.3d at 567.

      When assessing an action on a motion for mistrial, determinations of

historical fact and assessments of witness credibility and believability are left

almost entirely to the discretion of the trial judge, and when there is conflicting

evidence, there is no abuse of discretion if the motion is overruled. Hughes v.

State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000). An appellate court views the

evidence in the light most favorable to the trial court’s ruling. Webb v. State, 232

S.W.3d 109, 112 (Tex. Crim. App. 2007). The ruling must be upheld if it is within

the zone of reasonable disagreement. Id.

B.    Motion for mistrial

      During the punishment phase of the trial, Trujillo called Julia Babcock, a

licensed professional counselor, as a sudden-passion expert witness. On cross-

examination, the State and Babcock had the following exchange:

      [State]:     Dr. Babcock, would it have changed your opinion had
                   you learned that Ana Trujillo walked into Bodega’s and
                   bit Stefan Andersson on the face?

      [Babcock]: Hypothetically?

      [State]:     Yes. Let’s say you learned that fact. Would that have
                   changed your opinion in this case?

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         [Babcock]: It depends on when—

         [State]:      Like in the middle of the day at lunchtime. He’s eating
                       tacos with his friends and [Trujillo] walks in and bites
                       him on the face. Would that change your opinion?

         [Babcock]: I guess that’s a strange hypothetical.

         [State]:      It’s strange behavior, truly; but I’m asking if you had
                       learned that, would that have changed your opinion in
                       this case?

         [Babcock]: No, because my opinion is based on her past history of
                    having been abused and her—the psychological
                    symptoms she’s manifested.

Subsequently, Trujillo took the stand. Her counsel asked her:

         [Defense]: The prosecutor said yesterday, hypothetically, that you
                    bit someone at Bodega’s. Do you know what she’s
                    talking about?

         [Trujillo]:   No.

On cross-examination, the following exchange occurred between Trujillo and the

State:

         [State]:      Now, I want to talk about Bodega’s. You said you’re not
                       aware of that incident. Isn’t it true that there was a time
                       when Stefan—and you mention Anders Berkenstein,
                       Stefan’s really good friend?

         [Trujillo]:   Yes.

         [State]:      Wasn’t there a time when Anders Berkenstein and Stefan
                       were sitting in Bodega’s having a beer and tacos and you
                       come in—

         [Defense]: I’m going to object to this question, Your Honor.


                                             8
      [Court]:      Overruled.

      [State]:      —unprovoked and bite him on the cheek? He doesn’t hit
                    you. He doesn’t push you off. He then does this and you
                    walk out and they come and tend to him. Isn’t that true?

      [Trujillo]:   No.

      [State]:      Certainly not the first time you’re hearing it, right? I’m
                    sure in preparation for trial, you’re aware that Anders
                    Berkenstein gave a formal statement gave a formal
                    statement to the homicide detectives, correct?

      [Defense]: Your Honor, I object to relevance. I’m also going to
                 object to the prosecutor testifying.

      [Court]:      That will be sustained. Move along.

      [Defense]: Will you ask the jury to disregard?

      [Court]:      There was no response. Jury is instructed to disregard it.
                    Move along. I sustained it. Move along.

      [Defense]: We ask the jury to disregard it.

      [Court]:      Jury will disregard it. Move along.

      [Defense]: Move for a mistrial.

      [Court]:      Denied.

      Trujillo contends that this was improper character evidence and the trial

court should have granted her motion for a mistrial. Her argument fails for two

reasons. First, she objected to relevance, not character evidence. These are not the

same objection. Character evidence is relevant; the probative value of character

evidence comes from its tendency to show action in conformity therewith. Sims v.


                                          9
State, 273 S.W.3d 291, 294 (Tex. Crim. App. 2008). Nevertheless, character

evidence is inadmissible for that purpose. Id.; see TEX. R. EVID. 404.

       Second, we presume that the trial court’s instruction to the jury to disregard

was effective. Wesbrook, 29 S.W.3d at 115–16. Trujillo’s complete argument to

overcome this presumption is: “Here, although the [trial court] gave a proper

‘reasonable doubt’ instruction to the jury . . . and ‘an instruction to disregard’ to

the improper reference . . . the instruction was insufficient where punishment was

assessed at [life imprisonment].” Trujillo cites no authority to support her

contention that assessing punishment for murder at life imprisonment is enough to

overcome the presumption. In the absence of any reasoning for this position, we

reject it.

       We overrule Trujillo’s second issue.

                      Ineffective Assistance of Trial Counsel

       In her third issue, Trujillo contends that her trial counsel was ineffective

because he chose to have Babcock testify during the punishment phase of the trial,

instead of the guilt–innocence phase.

A.     Standard of review

       “To prove ineffective assistance, a defendant must show, by a

preponderance of the evidence, that (1) counsel’s performance was so deficient

that he was not functioning as acceptable counsel under the Sixth Amendment and


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(2) there is a reasonable probability that, but for counsel’s error or omission, the

result of the proceedings would have been different.” Apolinar v. State, 106

S.W.3d 407, 416 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184

(Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687–96,

104 S. Ct. 2052, 2064–69 (1984) and Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999)). For the first prong, we presume that “counsel’s performance

was reasonably based in sound trial strategy.” Mata v. State, 226 S.W.3d 425, 431

(Tex. Crim. App. 2007). For the second prong, we require “a probability sufficient

to undermine confidence in the outcome” of the proceedings. Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 2002). “Appellant bears the burden of proving

by a preponderance of the evidence that counsel was ineffective.” Thompson, 9

S.W.3d at 813.

B.    Self-defense

      At the guilt–innocence phase, Trujillo argued that she acted in self-defense.

Under that theory, “a person is justified in using force against another when and to

the degree the actor reasonably believes the force is immediately necessary to

protect the actor against the other’s use or attempted use of unlawful force.” TEX.

PENAL CODE ANN. § 9.31(a) (West 2011); see id. § 9.32(a) (West 2011) (justified

use of deadly force). “It is a defense to prosecution that the conduct in question is

justified under this chapter.” Id. § 9.02 (West 2011).


                                         11
C.    Sudden passion

      At the punishment phase of the trial, Trujillo advanced a related, but legally

distinct, argument: that she acted under the influence of sudden passion. “‘Sudden

passion’ means passion directly caused by and arising out of provocation by the

individual killed . . . at the time of the offense and is not solely the result of former

provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2) (West 2011). “At the

punishment stage of a trial, the defendant may raise the issue as to whether he

caused the death under the immediate influence of sudden passion arising from an

adequate cause.” Id. § 19.02(d). If the jury accepts the defendant’s sudden-passion

claim, the defendant remains guilty but faces a less severe punishment. See id.

D.    Babcock’s testimony

      Babcock testified at the punishment phase of the trial in support of Trujillo’s

sudden-passion theory. She noted that Trujillo had repeatedly been the victim of

abuse and explained:

      [S]ometimes [victims of abuse] will take an aggressive stance. It’s
      like a preemptive stance, like a kid who’s been bullied over and over
      again, they might have a stance that’s particularly aggressive. This is a
      problem because it puts them at a higher risk for being in a physical
      altercation later on down the road.

      Babcock testified that Trujillo’s relationship with Andersson was not

abusive. Nevertheless, when the fight began, “it started from attempting to stop the

person from leaving and it escalated from there. I think [Trujillo] was acting in


                                           12
self-defense and her judgment was impaired and she overreacted, in part, based on

her personal abusive history.”

E.    Reserving Babcock’s testimony for the punishment phase was not
      ineffective assistance

      Trujillo argues that Babcock’s testimony should have been presented in the

guilt–innocence phase because “[t]he testimony of [Babcock] would have given

context for [Trujillo’s] subjective view (based on her history of sexual abuse and

post-traumatic stress syndrome) to the term ‘reasonable apprehension’ of danger.”

With this context, Trujillo argues that the jury would have found that she acted in

self-defense.

      Assuming without deciding that Trujillo can show deficient performance by

her trial counsel—the first Strickland prong—she cannot show harm—the second

prong. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“In particular, a court

need not determine whether counsel’s performance was deficient before examining

the prejudice suffered by the defendant as a result of the alleged deficiencies.”).

Babcock’s testimony was more appropriate for a sudden-passion theory than a self-

defense theory, and it may have undermined her self-defense claim.

      1.        Babcock’s testimony does not demonstrate an objectively
                reasonable fear

      The State argues that Trujillo cannot show prejudice because “Babcock’s

testimony might actually have harmed [Trujillo’s] self-defense claim by conceding


                                         13
that [Trujillo’s] conduct was excessive and an overreaction.” We agree. The jury

was instructed to find Trujillo not guilty if “it reasonably appeared to [Trujillo]

that her life or person was in danger and there was created in her mind a

reasonable expectation or fear of death.” This mirrors the law of self-defense,

which requires a reasonable belief that force is immediately necessary. TEX.

PENAL CODE ANN. § 9.31(a). “[A] ‘reasonable belief’ is one that would be held by

an ordinary and prudent person . . . .” Mays v. State, 318 S.W.3d 368, 385 (Tex.

Crim. App. 2010).

      Babcock’s testimony is evidence that Trujillo subjectively believed that she

needed to use deadly force—but it is not evidence that her belief was objectively

reasonable. Rather, Babcock testified that Trujillo suffered from “impaired”

judgment and “overreacted” based on an abnormal “aggressive stance.”

Accordingly, Babcock’s testimony would have undermined Trujillo’s theory of

self-defense by inviting the jury to conclude that Trujillo’s mortal fear was the

product of psychological trauma and would not have been shared by an ordinary

and prudent person in the same circumstances. See id. (“The only affirmative

defense available under Texas law for those who commit crimes while suffering

from an abnormal mental disease or defect is insanity . . . .”).




                                          14
      2.     Article 38.36 does not require an opposite conclusion

      Trujillo’s reliance on Article 38.36 of the Texas Code of Criminal Procedure

is misplaced. That provision states: “[T]he defendant, in order to establish the

defendant’s reasonable belief that use of force or deadly force was immediately

necessary, shall be permitted to offer . . . relevant expert testimony regarding the

condition of the mind of the defendant at the time of the offense, including those

relevant facts and circumstances relating to family violence that are the basis of the

expert’s opinion.” TEX. CODE CRIM. PROC. ANN. art. 38.36 (West 2005). A

defendant’s state of mind may be relevant to show an objectively reasonable belief

that deadly force is necessary. For example, a defendant may “present evidence of

the deceased’s violent character to show she reasonably believed force was

necessary to protect herself from the deceased.” Mozon v. State, 991 S.W.2d 841,

845 (Tex. Crim. App. 1999). “Because the evidence was intended to show the

defendant’s state of mind it was relevant only if the defendant was aware of it.” Id.

But the requirement that a defendant’s belief be objectively reasonable remains.

      Babcock’s testimony, had it been presented during the guilt–innocence

phase of the trial, would have undermined Trujillo’s self-defense theory by

suggesting to the jury that Trujillo’s reaction that night was “impaired,” that she

was “particularly aggressive,” and that she did not display an objectively




                                         15
reasonable response. Trujillo cannot establish that she was harmed by the omission

of this testimony from the guilt–innocence phase.

      Accordingly, we overrule Trujillo’s third issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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