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 murder1and 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 

 

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TEX. PENAL CODE ANN. § 19.02 (West 2011).
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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 highheeled 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 punishmentmitigation 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 
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after the deadline to file a motion for new trial had expired.2Therefore, 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 

 

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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. 
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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 crossexamination, 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 selfdefense 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 
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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).