
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-03-00132-CR
NO. 03-03-00133-CR



Steve Elias, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NOS. 3020932 & 3020966, HONORABLE BOB PERKINS, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

In these causes, a jury found appellant Steve Elias guilty of arson and arson of a
habitation, respectively.  See Tex. Pen. Code Ann. § 28.02 (West 2003).  After finding that appellant
is a habitual felon, the court sentenced him to fifty years' imprisonment in both causes.  The only
issue on appeal is appellant's contention that his trial counsel did not render constitutionally
adequate assistance.  We will affirm the convictions.
Appellant's estranged wife, Jo Ann Ramirez, called the police on May 2, 2002, to
report that she had received threatening telephone calls from appellant.  In these calls, appellant
threatened to kill Ramirez and burn her cars.  On May 4, Ramirez again called the police after she
saw appellant at the convenience store across the street from her duplex residence.  Officers
responded to the call and spoke to appellant, but had no grounds to detain him.  At the suggestion
of the police, Ramirez and her children spent that night at a motel.
Around 5:00 a.m. on May 5, one of Ramirez's cars was discovered burning in her
carport.  The fire was determined to be arson.  Appellant called Ramirez's residence shortly after the
fire was discovered.  Later that day, Ramirez returned appellant's call in the presence of police
officers and appellant was recorded making a threat against her life.  That night, while Ramirez
remained at the motel, an arson fire was started in the bedroom of her residence.  Appellant was seen
near the duplex shortly before the fire started.  He was also videotaped visiting the convenience store
across the street twice that night.  First, just before the fire was reported, appellant was videotaped
buying matches.  Later, as fire sirens sounded in the background, appellant was videotaped calling
for a taxicab.
To prevail on a claim of ineffective assistance of counsel, an appellant must show that
counsel made such serious errors that he was not functioning effectively as counsel and that these
errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. 
Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72
(Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).  As an
appellate court, we must indulge a strong presumption that counsel's conduct fell within the wide
range of reasonable professional assistance.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994).  To overcome this presumption, any allegation of ineffectiveness must be firmly founded in
the record and the record must affirmatively demonstrate the alleged ineffectiveness.  Mallett v.
State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  In most cases, the record on direct appeal is
undeveloped and cannot adequately reflect the motives behind trial counsel's actions.  Id.
Appellant's complaints regarding his trial counsel's performance fall into three
categories:  (1) failure to object to evidence of extraneous acts of misconduct, specifically the various
threats he made against Ramirez; (2) failure to object to evidence of his previous convictions; and
(3) failure to request appropriate jury instructions regarding these matters.  Although there was no
hearing on appellant's motion for new trial and thus we have no record regarding counsel's trial
strategy, appellant asserts that there is no plausible justification for counsel's conduct.
As a general rule, we will not speculate about counsel's trial strategy.  Jackson, 877 
S.W.2d at 771; Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992).  In light of appellant's
argument, however, it is appropriate to briefly address this question as it applies to each of
appellant's complaints.  With regard to the threats appellant made against Ramirez, trial counsel may
have concluded that no objection was warranted because the evidence was admissible as same
transaction contextual evidence, and that the probative value of the evidence outweighed the danger
of unfair prejudice.  Tex. R. Evid. 403, 404(b).  With respect to appellant's record of convictions,
we note that appellant testified on his own behalf.  Counsel presumably knew that appellant would
testify, and therefore knew that his record would be admissible for impeachment. (1)  Tex. R. Evid.
609.  Counsel may have concluded that no useful purpose would be served by objecting to evidence
that was inevitably going to be admitted.  As to counsel's failure to request instructions limiting the
jury's consideration of this evidence and requiring that the jury find the extraneous offense evidence
true beyond a reasonable doubt, counsel may have believed, given the strength of the State's case,
that such instructions would have served to remind the jury of the evidence without providing a real
benefit to appellant.
In short, without a record focused on counsel's trial strategy, appellant cannot sustain
his burden of demonstrating that his attorney's performance was outside the broad scope of
reasonably effective trial counsel.  We therefore overrule his ineffective assistance claim and affirm
the judgments of conviction.


				___________________________________________
				David Puryear, Justice
Before Justices Kidd, Patterson and Puryear
Affirmed
Filed:   March 25, 2004
Do Not Publish
1.        Appellant also complains that counsel did not object to testimony detailing the facts underlying
one of these convictions, for criminal mischief.  This evidence showed that appellant was accused
of setting fire to Ramirez's sister's automobile, but pleaded guilty to the lesser offense.  Here again,
counsel may have believed that a rule 404(b) objection was fruitless under the circumstances.

