Opinion issued July 28, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00397-CR
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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
2
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
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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.
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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.
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[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.
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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).
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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
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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
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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 . . . .”).
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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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