¶1concurring.
¶2Seems to me we’ve been down this road before. And no matter how the Court characterizes it, we were reversed. Jaubert v. State, 65 S.W.3d 73 (Tex.App.-Waco 2000), rev’d, 74 S.W.3d 1 (Tex.Crim.App.2002). This Court either cannot, or does not want to, follow the procedures set forth by the Court of Criminal Appeals. What may save this Court from embarrassment in this case is that after its discussion of why Loredo met the first prong of ineffective assistance of counsel, the Court concludes he was not prejudiced and affirms the judgment. I agree with that ultimate conclusion, but I cannot agree to the route the Court takes to get there.
¶3First, the Court concludes that, as a matter of law, there cannot be a reason why defense counsel would not make an extraneous offense/bad acts request. Hmmm, I thought I gave them ample reasoning four years ago why an attorney may not formally request notice of extraneous offenses. If no one remembers, here is my analysis:
From the record discussed above, there is no per-se evidence of ineffective assistance. The majority concludes that the Jaubert’s counsel was ineffective because he did not file a request pursuant to Article 37.07. (Footnote omitted). However, to conclude that this was ineffective assistance of counsel, the majority has to make a number of presumptions that are not supported by the record. By doing this, the majority changes the presumption the Court of Criminal Appeals has directed that we are bound to apply-to “strongly presume” that counsel was effective. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). Reversing this presumption allows the majority to conclude that Jaubert’s trial counsel’s failure to request notice under Article 37.07 § 3(g) “... was unreasonable and is not justified by ‘trial strategy.’ ”
Rather than presume effective assistance of counsel, they have presumed ineffective assistance and searched the record for an explanation to justify why counsel would not have made the re*33quest. Even in this search, they ignore the statements in the record that indicate a perfectly reasonable explanation for not wasting resources by filing a request for the Article 37.07 disclosure. The Tarrant County District Attorney has an open file policy. While an open file policy will not suffice if a formal Article 37.07 request is made, Jaubert’s attorney could have examined the DA’s file and determined that the jail offense reports were present. In this very efficient manner, counsel could have learned what information the DA’s office had and could prepare to respond to it. This could be done without the need for a formal request and a formal response. Jaubert loses no statutory rights and does not receive any less effective representation. In fact, this may work to Jaubert’s benefit by not forcing the State to focus on the other-bad-aet evidence by having to prepare a written response as is required if the defendant files a formal written request.
Further, there is no prohibition from obtaining this information by way of an oral request. The majority ignores this possible explanation and thus presumes there was no oral request. Of course, there is no documentation to prove that an oral request was made. But the statute does not require a written request before the State can provide the responsive information. By allowing for the possibility of an oral request and informal response, the lawyers are left to work out the discovery in the most efficient manner with the least amount of time and paper wasted. It seems that we should do everything we can to facilitate this type of cooperation rather than destroy it.
As indicated, there is no evidence in the record of an oral request and nothing in the record that affirmatively shows that the State provided the information in response to an oral request or simply volunteered the information, knowing that if requested that they would have to produce it. This brings me back to the presumptions. The majority has presumed that there was no oral request and no voluntary cooperation, again presuming ineffectiveness. Whereas, I presume this could be a perfectly reasonable explanation for the absence of a written request. This becomes an evi-dentiary issue that could be resolved at a fact hearing.
I believe that the Court of Criminal Appeals has clearly articulated the effect of the rules applicable to evaluating claims of ineffective assistance of counsel. The clear result of the applicable presumptions is that if any set of facts that is not contrary to the existing record could exist that would allow the conclusion to be reached that counsel was effective, the judgment must be affirmed.
As it has been repeatedly discussed in prior cases, because of the inability to resolve potential factual disputes or issues, direct appeal of ineffective assistance of counsel claims is particularly difficult. Without a record to develop the factual underpinnings of a claim, a cold record is seldom adequate to prove ineffectiveness of counsel. See Gonzalez v. State, 994 S.W.2d 369 (Tex.App.-Waco 1999, no pet.); Foster v. State, 8 S.W.3d 445 (Tex.App.-Waco 1999, no pet.). The defendant is not without relief. The defendant’s relief is by a post trial writ of habeas corpus to show that the state of facts which could exist does not in fact exist.
Of course there is a much more pragmatic explanation for not making the Article 37.07 request. It is a problem trial lawyers face all the time. “Do I make the request and cause the opposi*34tion to focus on the issue, and possibly cause them to discover previously unknown bad acts, or do I trust my client to tell me what is out there in the way of other bad acts and simply prepare to meet it if the State is aware of it and decides to use it?” Even civil practitioners are faced with this dilemma when requesting discovery of whether their opponent intends to use any final convictions to impeach any of their witnesses. TEX. R. EVID. 609(f). This is a variant of the doctrine-of-negative-surveillance-“Do I ask for something that may work to my benefit but also has the very real risk of causing me to come under greater scrutiny?”
Another possible explanation, given the excellent manner in which defense counsel conducted Jaubert’s case, is that having nothing to counter this evidence with, the defense “put their best foot forward” and hoped for the best. Jau-bert may have been fully aware of the State’s intended use of the information but had no other evidence to counter it with. Even on appeal, Jaubert has not claimed that he would have done a single thing differently had he known the State possessed and intended to use this information. I would say this trial strategy worked pretty well for Jaubert. His sentence for killing one person and attempting to kill four others was a maximum time in prison of only 60 years.
¶4Jaubert, 65 S.W.3d at 95-97 (Gray, J., dissenting).
¶5I believe these arguments from Jaubert apply to this case as well. And one statement bears repeating. “The clear result of the applicable presumptions is that if any set of facts that is not contrary to the existing record could exist that would allow the conclusion to be reached that counsel was effective, the judgment must be affirmed.” Id. at 96-97.
¶6Second, to come to this “matter of law” conclusion, the Court relies on its previous determination of that issue from Jaubert. But just because the Court of Criminal Appeals did not reach that issue and reverse the Court on that holding does not mean what this Court further decided in Jaubert was right. The Court of Criminal Appeals determined that this Court was wrong in its decision that the notice requirements applied to rebuttal evidence. Once the Court of Criminal Appeals made their decision, it did not matter what other errors this Court had made in reversing the conviction. It became unimportant. Indeed, it rendered everything else this Court said in that opinion dicta because any other discussion was not necessary to a proper disposition of the appeal, just prattle. For the same reason, the Court of Criminal Appeals properly did not address this Court’s faulty holding that as a matter of law there could be no reasonable explanation for failing to make the request. Any comment by the Court of Criminal Appeals addressing that issue would have been dicta because it was not essential to the disposition of the case as presented.
¶7Third, as in Jaubert, this Court ignores Court of Criminal Appeals’ precedent that counsel should ordinarily be afforded an opportunity to explain the actions taken or not taken, as the case may be, before being condemned as unprofessional and incompetent. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002). This Court does not even mention counsel’s lack of any opportunity to explain his actions or inactions. “Ineffective assistance of counsel claims are not [supposed to be] built on retrospective speculation; they must ‘be firmly founded in the record.’ ” Id. at 835. The record must itself affirmatively demonstrate the alleged ineffectiveness. Id.; Thompson, 9 S.W.3d at 813-14. A record, "... silent as to why appellant’s trial coun*35sel took or failed to take ...” certain actions, is not adequate to establish ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App.2003). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone, 77 S.W.3d at 833. The more appropriate vehicle to raise ineffective assistance of counsel claims is an application for writ of habeas corpus. Rylander, 101 S.W.3d at 110.
¶8But this Court rejects the presumption to make a hard and fast rule that a defendant need not do anything to establish the first prong of ineffective assistance except show that counsel did not make an extraneous offense request. Period. End of Discussion. Proceed to the second prong without any further analysis.
¶9That’s not looking at the totality of the representation.
¶10That’s not affording counsel an opportunity to explain.
¶11And that’s not the law except temporarily in 16 counties in Central Texas and in any case that happens to be transferred to us.
¶12Fourth, we all agree that Loredo failed to establish that he was prejudiced by his counsel’s inaction. Wouldn’t it be more appropriate to avoid the first prong fiasco when we agree on the disposition of the second prong? Yes. Is the object of an ineffectiveness claim to grade counsel’s performance? No. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Id.And it has. The Court of Criminal Appeals has said that the failure to make either of the required showings defeats an ineffective assistance of counsel claim. Rylander, 101 S.W.3d at 110. Moreover, if an appellant fails to meet the prejudice prong, the reviewing court need not address the question of counsel’s performance. Boyd v. State, 811 S.W.2d 105, 109 (Tex.Crim.App.1991). But that would prevent the Court from making the hard and fast rule it wants to make, that the failure to make the request is, per se, failure to perform as reasonably competent counsel. A rule that I am positive will come back to haunt us if not promptly rejected by a higher authority-
¶13Musing with Defense Counsel
¶14With this holding on the books, would it be ineffective assistance of counsel to make an extraneous offense request? Let us assume you have been a diligent attorney, fully researched your Ghent’s criminal history, carefully interviewed your client and your client’s associates and reviewed the D.A.’s file pursuant to an open file policy. Now it comes time to work a little strategy. If you make the request in wilting, you have affirmatively negated an argument that you were ineffective for that failure. But by making the request, you have also negated one half of the necessary equation for getting your client’s punishment phase reversed. All appellate counsel needs to show is that you did not make a written request and your client is half way home to success on an ineffective assistance of counsel claim. The first prong is easily established as a matter of law. Have you thus been ineffective for not preserving this benefit for your client by having made the request when it serves no useful purpose for your client?
¶15Musing with the District Attorney
¶16Welcome to the world of implied motions. Your only safe harbor to hold onto *36a conviction in which you intend to use extraneous offenses in your case-in-chief is to act as if defense counsel has filed a written request. This is like an implied motion, and you should file a formal written response whether a written motion is filed or not. Now I know this seems contrary to the requirement of the Code that the request be in writing. But while you may not have to file a response unless the request is in writing, by filing a written “response” you may have defeated the defendant’s ability to meet the first prong of the test for ineffective assistance of counsel, and definitely defeated the second prong.
¶17Musing with the CommissioneR’s CoüRt
¶18Has a commissioner’s court considered a suit for a refund of attorney’s fees paid to counsel whose conduct fell so far below an objective standard of reasonableness that you have to pay another attorney to pursue an appeal to establish that failure and then pay another attorney to retry the defendant? Is there no bottom to this pit into which taxpayer money is thrown?
¶19For these reasons, I concur only in the judgment of this Court.