IN THE
TENTH COURT OF APPEALS
No. 10-03-328-CV
IN RE J. HEATH GIBSON
Original Proceeding
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MEMORANDUM OPINION
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      The petition for writ of mandamus is denied.
                                                                   PER CURIAM
Before Chief Justice Gray,
      Justice Vance, and
      Judge Strother (Sitting by Assignment)
Petition denied
Opinion delivered and filed December 10, 2003
[CV06]
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The State of Texas,
                                                                    Appellee
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From the 77th District Court
Limestone County, Texas
Trial Court # 9814-A
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O p i n i o n
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     Hinson appeals his sentence for burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003). We will affirm.Â
     In his sole issue, Hinson argues that his trial counsel did not request notice of the StateÂs intent to offer extraneous-offense evidence in the punishment phase of trial, and thus failed to render the effective assistance of counsel. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2004-2005).Â
     ÂAllegations of ineffectiveness must be firmly founded in the record as counsel is presumed to have rendered adequate assistance and made all significant decision[s] in the exercise of reasonable professional judgment. Howard v. State, 153 S.W.3d 382, ÂÂÂ388 (Tex. Crim. App. 2004) (per curiam); accord Strickland v. Washington, 466 U.S. 668, 689 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). Â[T]he two components to any ineffective-assistance claim [are]: (1) deficient performance and (2) prejudice. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); accord Strickland at 691-94; Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). The appellant must establish both components by the preponderance of the evidence. Bell v. Cone, 535 U.S. 685, 694 (2002); Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) (op. on orig. submission) (per curiam); McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992).Â
     Â[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.   Strickland, 466 U.S. at 697; accord Mallett v. State, 65 S.W.3d 59, 68 (Tex. Crim. App. 2001). ÂIn particular, a court need not determine whether counselÂs performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Strickland at 697; accord Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991); see Mallett at 68.
     We decide only the prejudice component of the Strickland analysis. The record does not show that Hinson suffered prejudice from the deficient performance that he alleges. The record does not clearly show that Hinson insondid not receive notice of intent to offer the evidence of which he complains. Â[C]ounsel may have received oral notice of the StateÂs intent to introduce the evidence at punishment phase. Autry v. State, 27 S.W.3d 177, 182 (Tex. App.ÂSan Antonio 2000, pet. refÂd). On appeal, Hinson argues only that Âthe record shows no request for written notice, and Ânothing in the record shows any agreement that the State and trial counsel had reached . . . for the disclosure of the questioned material. However, Hinson filed a motion in limine intended to prohibit the State from offering the evidence of convictions and unadjudicated offenses. Indeed, when the State offered the evidence of which Hinson complains, very far from showing surprise, he agreed and stipulated to the evidence.Â
     Moreover, Hinson Âhas not stated what steps he would have taken if he had received written notice of the StateÂs intent to introduce extraneous evidence. See Autrey, 27 S.W.3d at 182. Hinson argues only, ÂIt can be assumed from this record that had [Hinson]Âs [trial] counsel properly requested notice from the State, counsel would have known of the StateÂs intent to use one of the StateÂs exhibits. To the contrary, trial counselÂs theory of the case was admission and mitigation of the extraneous offenses: HinsonÂs punishment witnesses explained those offenses as the result of Âhanging out with the wrong crowd of people and HinsonÂs use of crack cocaine.
     We overrule HinsonÂs issue and affirm the judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
     Justice Vance, and
     Justice Reyna
     (Justice Vance concurring with note)*
Affirmed
Opinion delivered and filed May 11, 2005
Publish
[CR25]
  * Â(Justice Vance concurs, noting that we have held failure to request the notice to which a defendant is entitled under article 37.07, section 3g, cannot be excused as Âsound trial strategy. Loredo v. State, No. 10-01-00078-CR, slip op. at 4 (Tex. App.ÂWaco December 8, 2004) (not designated for publication) (following Jaubert v. State, 65 S.W.3d 73, 81-82 (Tex. App.ÂWaco 2000), revÂd on other grounds, 74 S.W.3d 1 (Tex. Crim. App. 2002)); see also Andrews v. State, 2005 Tex. Crim. App LEXIS 500 (Tex. Crim. App. March 23, 2005) (no reasonable trial strategy in failing to correct a prosecutorÂs misstatement of law that is detrimental to the client).)ÂÂ
   It should be noted that both Appellant and the State have filed petitions for discretionary review in Loredo. See Loredo v. State, 157 S.W.3d 26 (Tex. App.ÂWaco 2004, pets. filed). T.G.