Opinion issued July 28 , 2015

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 14
- 00397
- CR

——————————— ANA TRUJILLO , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 338th District Court

Harris County, Texas Trial Court Ca se No. 1421621

MEMORANDUM OPINION A jury convicted Ana Trujillo of murder 1 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 f or new trial, (2) the trial court

1 T EX
. P ENAL C ODE A NN
. § 19.02 (West 2011 )

.2

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 pha se 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, Tr ujillo 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 kill ed 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

. S he adduced evidence that Andersson had been angry on the night of the fight and was drunk when he d ied. She argued that her self

- defense theory was plausible given the forensic and medical evidence. T he jury rejected this theory and convicted Trujillo of murder.
At the punishment phase of her trial, Trujillo raised the punishment

mitigati on claim of sudden passion. She supported this t heory with the testimony of Julia Babcock, a licensed professional counselor. Babcock testified that3

Trujillo ’s relationship with Andersson was not abusive; however, Trujillo had suffered abuse in previous re lationships, 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 c ourt 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 moti on 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 app ointed; 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 F ile 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

.4

A. Standard of r eview 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 senten ce in open court.” T EX
. R. A PP
. 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. C ONST
. amend. VI; see Mempa v. Rhay , 389 U.S. 128, 134 , 88 S. C t. 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 plau sible claim that could have been alleged in a motion for new trial, ” the error is not harmless beyond a reasonable doubt. See id

. at 91 2

. 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 appellat e counsel until5

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 Bearm an 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, a ppellant 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 C ooks , 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 wou ld have been
raised in a timely filed motion for new trial. See id. at 912; s ee 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). I n 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 representa tion. The trial court issued one order finding Trujillo indigent, memorializing her request to be appointed appellant counsel, and appointing her appellant counsel in accor dance with that request. The court and Trujillo signed the order and wrote the date May 7; Trujillo’s new attorney signed the order bu t wrote the date May 14. The docket sheet record s 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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foun d 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 3 31

. 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

. W e conclude that any deprivation of counsel that might have occurred during the period to file a new

- trial motion was harmless be yond a reasonable doubt. We overrule Trujillo’s first issue.

Inadmissible Character Evidence In her second issue, Trujillo argue s that the trial court should have granted her motion for a mistrial after the jury heard improper character evidence. A. Standard of r eview 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.7

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. 200 0) . 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 assessment s of witness credibility and believab ility 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 th e 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 pha se o f the trial, Trujillo called Julia Babcock , a licensed professional counselor , as a sudden

- passion expert witness. On cross

examinati on, 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?8

[Babcock ] : It depends on when

— [State ] : Lik e 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

havi ng been abused and her

— the psychological symptoms she’s manifested. Subsequently, Trujillo took t he 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 Stef

an

— 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 b eer and tacos and you come in

— [Defense ] : I ’ m going to object to this question, Your Honor.9

[ Court ] : Overruled. [State ] :

—

unprovoked and bite him on the cheek? He doesn ’ t hit yo u. 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 Be rkenstein 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 p rosecutor testifying. [ Court ] : That will be sustained. Move along. [Defense ] : Wi ll you ask the jury to disregard? [ Court ] : There was no r esponse. 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 mi strial. [ Court ] : Denied. Trujillo contends that this was improper character evidence and the trial court should have granted her mot ion 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; t he probative value of character evidence comes from its tenden cy to show action in conformity therewith

. Sims v.10

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

. N evertheless, character evidence i s inadmissible for that purpose. Id. ; see T EX
. R. E VID
. 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, a lthough 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 cite s 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 Assi stance of Trial Counsel In her third issue, Trujillo contends that her trial counsel was ineffecti ve because he chose to have Babcock testify during the punishment phase of th e trial, instead of the guilt

– innocence phase. A. Standard of r eview

“ To prove ineff

ective 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 and11

(2) there is a reasonable probability that, but fo r 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. 66 8, 687

– 96, 104 S. C t. 2052, 2064

– 69 (1984) and Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) )

. For the first prong, w e presume that “ co unsel’ 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 preponderanc e 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 agai nst the other’ s use or a ttempted use of unlawful force.” T EX
. P ENAL C ODE A NN
. § 9.31(a) (West 2011) ; see id. § 9.32(a) (West 2011 ) (justified use of deadly for ce). “ 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 und er 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. ” T EX
. P ENAL C ODE A NN
. § 19.0 2(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 repeate dly been the vic tim 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 altercati on later on down the road. Babcock testified that Trujillo’s relationship with Andersson was not abusive. Nevertheless, when the fight began , “ i t started from attempting to stop the person from leaving and it escalated from there. I thin k [Trujillo] was acting in13

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 w as not ineffective assistance Trujillo argues that Babcock’s testimony should have been pre sented in the guilt

– innocence phase b ecause “[t]he testimony of [ Babcock] would have given context for [Trujillo’s] subjective view (based on her history of sexual a buse 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 de ciding that Trujillo can show deficient performa nce 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 prej udice suffered by the defendant as a resu lt of the alleged deficiencies.”). Babcock’s testimony was more appropriate for a sudden

- passion theory than a self

defense theo ry, and it may have undermined her self

- defense claim. 1. Babcock’s testimony does not dem onstrate an objectively reasonable fear The S tate argues that Trujillo cannot show prejudice because “Babcock’s testimony might actually have harmed [Trujillo’s] self

- defense claim by conceding14

that [Trujillo’s] conduct was ex cessive 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 exp ectation or fear of death. ” This mirrors the law of self

- defense, which requires a reasonable belief that force is immediately necessary. T EX
. P ENAL C ODE A NN
. § 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 us e deadly force

— but it is not evidence that her belief was objectively reasonable. Rather, Babcock testified that Trujillo suffered from “impaired ” judgment and “over reacted” based on an abnormal “aggressive stance.” Accordingly, Babcock’s testimony would have undermined T r ujillo’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 h ave 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

. 

### . . . ”).15

2. Artic le 38.36 does not require an opposite conclusion Trujillo’s reliance on A rticle 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 o r deadly force was immediately

necessa ry, 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 viole nce that are the basis of the expert ’ s opinion. ” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 38.36 (West 2005 ) . A defendant’s state of mind may be relevant to show a n objectively reasonable belief that deadly force is necessary. For example, a defendant may “ present e vidence of
the deceased ’ s violent character to show she reasonably believed force was necessary to pro tect 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 st ate 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 un dermined 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 objectively16

reasonable response. Trujillo cannot establish that sh e was harmed by the omission of this testimony from the guilt

– innocence phase. Accordingly, w e overrule Trujillo’s third issue

. Conclusion We affirm the judgment of the trial court.

Harvey Brown Justice Panel consists of Chief Justice Rada ck and Justices Brown and Lloyd. Do not publish. T EX
. R. A PP
. P. 47.2(b).