      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



                            MEMORANDUM OPINION


               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.




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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




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     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.

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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




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