dissenting.
I withdraw my dissenting opinion dated August 16, 2007 and issue the following opinion in its stead. I respectfully dissent. This case is about a conviction and 99-year sentence of an indigent defendant that was probably caused by the defendant’s non-crime of hiring constitutionally deficient counsel. The majority takes the fact that appellant, who had been adjudicated indigent, discharged his appointed counsel and retained counsel for his retrial, and therefore could not pursue a free record of his prior trial, as grounds for finding that appellant was not indigent for purposes of obtaining a free record and, therefore, has no complaint of ineffective assistance based on his counsel’s failure to pursue a record for use at appellant’s retrial. I would hold, on the basis of the same facts, together with the fact that appellant’s retained counsel proved himself entirely unable to impeach the State’s witnesses without the transcript of the prior mistrial, that appellant’s counsel violated his professional duty to appellant by accepting and/or continuing representation for which he was constitutionally unqualified. Because appellant’s trial counsel’s actions, as reflected in the record, were in violation of his professional duty and prejudiced his client, and the result probably would have been different but for those actions, I would hold that appellant’s counsel was ineffective as a matter of law. I would reverse and remand for a new trial.
Background
This case grew out of a “sting” operation, in which the testimony of the arresting officers was critical to appellant’s conviction. As the majority states, appellant was represented by retained counsel in his first trial, which ended in a mistrial declared on July 22, 2005. That attorney moved to withdraw on September 20, 2005, on the ground that appellant was “without funds to pay for another trial.” On the same day, appellant’s counsel filed an unverified motion in which he asserted that two police officers had testified at appellant’s trial, and he requested a “record of *283that prior testimony to prepare for trial” on the ground that appellant was “without funds or resources to pay for a record.” The trial court granted appellant’s retained counsel’s motion to withdraw that same day, but it did not rule on the motion he had filed requesting a free record.
A week later, on September 28, 2005, the trial court signed an order stating that appellant had “executed an affidavit stating that [he] is without counsel and is financially unable to hire an attorney,” and it appointed counsel to represent appellant at his retrial. About a month later, on October 26, 2005, the trial court granted a request for appointment of an investigator also filed by appellant’s appointed counsel on grounds of indigency. However, five days later, on November 1, 2005, the trial court granted appellant’s motion that his appointed counsel be permitted to withdraw and that newly retained counsel, Steven Goins, be substituted. Goins became appellant’s trial counsel as of that date and represented him throughout his retrial. It is Goins’ representation that appellant challenges as ineffective.
On November 29, 2005, three weeks after he was retained and undertook appellant’s defense for his retrial, Goins filed a motion asking that the trial court “provide the record of previous testimony” from the first trial. Goins’ motion stated that appellant “is indigent” and that he, as counsel, sought to review the testimony from the first trial. Goins did not file an affidavit with the motion. Handwritten notations by the trial court in its order denying the motion state, “No evidence presented,” and “Mr. Easily has retained counsel & previously had retained counsel.” Goins represented appellant through the end of trial, without a record of appellant’s previous mistrial. Appellant was convicted of possession of narcotics with intent to deliver and sentenced to 99 years in prison. On the day the judgment in the retrial was signed, appellant filed a notice of appeal and requested and again obtained appointment of appellate counsel on the ground that he was indigent. Appellant continues to be represented by appointed counsel.
The record thus demonstrates that the trial court found that appellant was indigent on September 28, 2005, after the first trial, and again found that he was indigent on the day the retrial ended that is the subject of this appeal. No countervailing evidence was presented to the court at any time between the time appellant was adjudicated indigent after his mistrial and the time the retrial ended that appellant, an incarcerated prisoner, had suddenly become not indigent and that he was capable of hiring counsel without sacrificing his rights as an indigent to a free investigator and free record essential to his retrial. Rather, Goins assumed representation a week after his predecessor’s motion for a free investigator had been granted and while his predecessor’s motion for a free record was pending.
Goins promptly filed his own request for a record of the first trial, specifically informing the court that appellant remained indigent and was, therefore, entitled to a free record. However, having secured the representation and filed the request for a free record, Goins failed to follow up that request with the mandatory affidavit of indigency or with any other evidence that appellant was still indigent — evidence which only Goins, as appellant’s counsel, could have presented to the trial court. Goins also failed either to assure that appellant paid for the record of his mistrial required for his defense or to resign so that appellant could obtain the free record to which he was entitled as an indigent. Consequently, Goins represented appellant at his retrial without a record of the previous mistrial, and with only appellant’s *284notes of the first trial with which to impeach the witnesses upon whose testimony-appellant’s conviction depended.
The only witnesses against appellant at his retrial were a chemist and two of the three undercover police officers who made the arrest.1 Only one placed appellant in possession of the narcotics. At trial, Goins repeatedly attempted to impeach these witnesses by relying on the notes of the mistrial that he had obtained from his client. On each occasion, the State objected to the improper impeachment and the court sustained the objection. The following example from the cross-examination of Officer Hernandez, who participated in the sting, is illustrative:
Q. (BY GOINS) Earlier you testified that you arrived at the scene at 7:00 p.m.
A. Yes, sir.
Q. Okay. Just reading through this police report, I read 2000 hours. What time is that?
A. 8:00.
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Q. So, you couldn’t have arrived at 7:00, could you?
A. We arrived about 7:00. The arrest was made somewhere about 8:00.
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Q. Okay. So, earlier, in a previous trial, you testified it was 8:00.
VINAS: Your Honor, may we approach?
COURT: You may.
(At the bench)
VINAS: Judge, at this point I’d object to improper impeachment and also to the Defense or any Defense witnesses mentioning the prior trial. That is irrelevant to this case, and there is no record of the prior trial. Therefore, there won’t be any statement to impeach the officer with.
COURT: Well, of course, if he has notes or a good faith basis maybe he said something contrary at the prior proceeding, he is entitled to ask about it. Do you have a copy of that record?
GOINS: I don’t have a copy of the record, but I do have notes from the trial that my client has given me.
COURT: Okay. I think it is improper to mention a prior trial. You should just say at a prior hearing, did you testify to X and Y.
GOINS: No problem. Thank you.
(End of bench discussion)
Q. (BY GOINS) Again, at a prior hearing, why did you testify that you arrived at 8:00, or 2000 hours?
A. I really don’t recall.
Q. Okay.
Similarly, the transcript reflects the following exchange during Goins’ attempted cross-examination of Officer Hernandez, who had testified on direct examination that he had observed the transaction for which appellant was arrested through binoculars from across the street from where the three cars involved in the incident were parked. Officer Hernandez had testified that he had seen appellant exit one car, and “I believe he went to the blue vehicle first, met with the guy from the blue vehicle first,” and that “I saw them meet and saw some kind of transaction. I really couldn’t see the objects in their hands, but it looked like they were exchanging something.” On cross-examination, Officer Hernandez identified the blue vehicle as “a four-door sedan.” Goins then attempted to impeach him as follows:
*285Q. Okay. During the last hearing, it was said to be a blue Jeep. Blue Jeep. Does a blue Jeep look anything like a sedan?
VINAS: Objection, improper impeachment.
COURT: Sustained. Please approach.
(At the Bench)
COURT: Was that said by this witness?
GOINS: It was said by Officer Jordan several times.
VINAS: Improper impeachment.
COURT: State’s objection is sustained.
GOINS: No problem.
When Officer Jordan testified, Goins attempted to impeach him on the same point:
Q.You can tell me what type of vehicle it was; am I correct?
A. It was just a blue vehicle. Blue. It wasn’t a van. It wasn’t a truck. It was a blue vehicle.
Q. If I’m correct, last time you testified it was a blue Jeep.
A. No. It—
Q. Yes.
VINAS: Objection, side-bar and improper impeachment.
COURT: Sustained. Sir, please just ask questions. Don’t make comments.
Q. (BY GOINS) You testified to several questions that it was a blue Jeep. Why are you not saying it was a blue Jeep now?
A. I don’t recall testifying a blue Jeep. I know for sure it wasn’t a Jeep.
Appellant was convicted and sentenced to 99 years in the penitentiary for felony possession of dihydrocodeinone (Vicodin), after pleading true to two felony enhancements, one for possession of a controlled substance and one for possession with intent to deliver — despite the fact that the prosecutor recommended a maximum sentence of only 40 years. At appellant’s prior trial the jury had deadlocked, eight to four, in favor of guilt.
Ineffective Representation
To meet his burden to show that his counsel was constitutionally deficient, an appellant is required to establish, by a preponderance of the evidence, that his trial counsel was not acting as “a reasonably competent attorney,” and that his advice was not “within the range of competence demanded of attorneys in criminal cases.” See Ex parte Chandler, 182 S.W.3d 350, 354 (Tex.Crim.App.2005) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). He is also generally required to show that his counsel’s constitutionally deficient performance prejudiced his defense, by demonstrating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See id. at 354 (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068) (to prevail on his claim of ineffective assistance of counsel, appellant must show that his counsel’s performance was deficient and that there is “reasonable probability” — one sufficient to undermine confidence in the result — that outcome would have been different but for his counsel’s deficient performance). The purpose of the constitutional requirement of effective counsel is to ensure a fair trial. Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App.2005).
However, a defendant who shows that an actual conflict of interest adversely affected the adequacy of his representation need not demonstrate prejudice to obtain relief. Ex parte Acosta, 672 S.W.2d 470, *286474 (Tex.1984) (granting habeas corpus relief where defendant established actual conflict of interest); see also Cuyler v. Sullivan, 446 U.S. 385, 348-49, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980) (to demonstrate ineffective assistance of counsel based on conflict of interest, defendant must show that defense counsel was actively representing conflicting interests and that conflict had adverse effect on specific instances of counsel’s performance); Ramirez v. State, 13 S.W.3d 482, 487 (Tex.App.-Corpus Christi 2000) (to prove adverse effect once actual conflict is established, appellant need not show that conflict changed outcome of trial), pet. dism’d, improvidently granted, 67 S.W.3d 177 (Tex.Crim.App.2001). When counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests to the detriment of his client’s interest, an actual conflict of interest exists. Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997); James v. State, 763 S.W.2d 776, 779 (Tex. Crim.App.1989).
Here, the issue of Goins’ ineffectiveness turns on whether his actions in accepting and continuing employment as appellant’s retained counsel for appellant’s retrial deprived appellant of his constitutional right to a transcript of his prior mistrial for use in his retrial, in breach of Goins’ professional duty to appellant, and, if so, whether prejudice is presumed or whether, but for Goins’ breach of his professional duties, the result of appellant’s retrial probably would have been different. I would hold that appellant has shown that Goins’ representation of him for his retrial was constitutionally ineffective and prejudiced the outcome.
When Goins undertook appellant’s representation, appellant had been adjudicated indigent, had been granted a free investigator, and was seeking a free record through his appointed counsel. The Equal Protection Clause of the Fourteenth Amendment requires that the State provide an indigent criminal defendant a transcription of testimony from a previous proceeding if it is needed for an effective defense. Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). The interest protected ensures that the trial a person obtains is not determined by “the amount of money he has.” Id. at 231, 92 S.Ct. at 435 (Douglas, J., dissenting) (quoting Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956)). As the Supreme Court stated in Britt,
Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.... [E]ven in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.
404 U.S. at 228, 92 S.Ct. at 434.
In White v. State, the Texas Court of Criminal Appeals agreed with Britt, as it had in earlier cases, and extended the constitutional right to the opportunity to obtain a transcript of prior testimony from a mistrial for use in a retrial to all criminal defendants. See White v. State, 823 S.W.2d 296, 299-300 (Tex.Crim.App.1992) (holding that trial court’s denial of motion for continuance to allow defendant to obtain transcript of prior mistrial was harmful error requiring reversal). The court reasoned:
When presented with the denial of an indigent defendant’s right to a transcript of prior testimony, this Court has echoed Britt’s constitutional mandate. *287In Billie v. State, 605 S.W.2d 558 (Tex. Crim.App.1980), we held that the denial of such a transcript was reversible error even though the defendant successfully impeached the State’s key witness through defense counsel’s personal notes from the first trial. Although this impeachment ultimately forced the prosecution to stipulate to certain inconsistencies, we stated: “[Wjithout a transcription of the court reporter’s notes from the initial trial, there was no viable way of knowing just how many more inconsistencies existed for impeachment purposes.” Id. at 560 (emphasis in original).
Similarly, in Armour v. State, 606 S.W.2d 891 (Tex.Crim.App.1980), we found reversible error in the trial judge’s denial of the defendant’s motion for a continuance, when such motion had been prompted by the judge’s refusal to rule on the defendant’s request for a transcript from the defendant’s earlier mistrial.... Again relying on Britt, we found [allowing the court reporter to read at length from the notes of the earlier trial in an attempt to impeach the witness] an inadequate alternative to providing a defendant with the actual transcript of the earlier trial. In addition, we extended our earlier holding in Billie [v. State, 605 S.W.2d 558, 560 (Tex.Crim.App.1980),] by expressly requiring the State to prove that the defendant had no need for a transcript of the prior testimony of the State’s witnesses in order to present an effective defense. Id. at 894.
Id. at 299 (emphasis added).
White was virtually identical to this case in that it involved a sting operation in which there had been a prior mistrial of the defendant and “the ability of the State to obtain a conviction rested almost exclusively on the testimony of the ... law enforcement personnel involved in the alleged drug transaction.” Id. at 300. The “credibility and perceptions” of the officers who testified at both trials being essential to the State’s case, it was “thus paramount that appellant have the means to adequately impeach these witnesses.” The Court of Criminal Appeals held, in White, that, because this testimony provided the basis for establishing the elements necessary to convict the appellant, inhibiting the appellant’s ability to impeach those witnesses through their specific prior testimony “unconstitutionally impaired appellant’s defense.” Id. The Court further held that denying a continuance to allow the defendant to obtain the transcript of the prior proceeding was reversible error in the absence of proof by the State that the defendant did not need the transcription. Id. at 300. It had previously concluded in Billie that court-reporter “readbacks” are not a sufficient alternative to the transcription of actual proceedings, and it reaffirmed that holding in White."2 Id. at 299-300; see also Billie, 605 S.W.2d at 560.
Under Britt, it is reversible error to deny an indigent defendant a free transcript of a prior mistrial of the same case. Under White, it is reversible error to deny any criminal defendant the right to obtain a record of his previous mistrial when it is necessary to impeach the State’s witnesses, specifically including a case like this one, in which the defendant’s conviction turns on the credibility of the officers who testify against him, whether the defendant is indigent or not.
*288The majority in this case reasons, however, that appellant was not indigent solely because he hired Goins; therefore, he had no right to a free transcript, and Goins was not ineffective for not seeking one. The majority misses the critical issue, namely, whether appellant’s right to obtain the transcript of the prior trial that was essential to a constitutionally adequate defense was violated by Goins’ actions — namely, by Goins’ taking on representation and causing the withdrawal of appointed counsel without assuring himself that appellant would still be able to obtain the record of his mistrial, filing but failing to pursue a request for a free transcript on the ground that appellant was indigent, and then proceeding to represent appellant in his retrial without a transcript that was critical to a constitutionally adequate defense. See White, 823 S.W.2d at 300 (stating that issue is whether lack of transcript “unconstitutionally impaired appellant’s defense”).
The majority also concludes that Goins had an adequate alternative to the transcript of the prior mistrial, namely, “the notes made by appellant on which trial counsel relied to cross-examine the officers.” 248 S.W.3d at 280. The majority states, “As the record demonstrates, trial counsel utilized that alternative and probed the testimony of the officers in the first trial. However unsuccessful appellant deems his trial counsel’s cross-examination and impeachment of the officers, the record reflects that meaningful cross-examination to impeach their testimony occurred. Accordingly, the purpose behind obtaining the record of the first trial was attained, albeit from appellant’s notes.” Id. Respectfully, I must disagree with the majority’s characterization of the record and the conclusion drawn from it. My own examination of the record, reflected in part by the portion of the record recited above, finds no instance in which Goins was able to impeach the testifying officers on any matter with any prior testimony — even on matters as critical to appellant’s defense as the time of the arrest, the vehicles involved in the incident, and (in a portion of the record not recited above) the side of the vehicle from which the drug transaction was alleged to have taken place, which was critical to determine who actually delivered the drugs. Indeed, Goins’ efforts at representing appellant are riddled with the State’s objections to improper cross-examination, with remonstrances from the trial court to Goins regarding his conduct, and with Goins’ incorrect and futile attempts at cross-examination.
There is no question that appellant would have been entitled to a free record of his prior trial as an indigent had he pursued one appropriately. As the majority observes, it is axiomatic that an indigent criminal defendant is entitled to a free record, but “only sworn allegations are to be considered in determining whether a defendant is entitled to a free record.” Whitehead v. State, 130 S.W.3d 866, 873-74 (Tex.Crim.App.2004) (citing Tex.R.App. P. 20.2). The criminal defendant claiming indigency as the basis for obtaining a free record must, therefore, exercise due diligence in asserting indigency, including timely fifing an affidavit of indigency and sustaining indigency claims in the affidavit. Abdnor v. State, 712 S.W.2d 136, 141-43 (Tex.Crim.App.1986). The defendant bears the initial burden to substantiate his own allegation of indigency. Id. Once he meets his burden of production, the burden shifts to the State to produce evidence that the defendant is not indigent. Id. The trial court must then determine the appellant’s financial status. Id. Unless an outside source is legally bound to pay, that outside source, such as parents or relatives, may not be considered by the *289trial court in the determination of indigen-cy. Id. Nor may a defendant be deprived of a free record simply because he was represented by retained counsel in a previous proceeding. Id. Indigency determinations are made on a case-by-case basis, and any attempt by a court to set rigid standards will not be accepted. Ramadan v. State, 89 S.W.3d 744, 746 (Tex.App.Houston [1st Dist.] 2002, order) (per curiam). A defendant whom the trial court has determined to be indigent “is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in [his] financial circumstances occurs.” Tex.Code Crim. PROC. Ann. art. 26.04(p) (Vernon Supp.2006). Article 1.051(b) of the Code of Criminal Procedure defines an “indigent” person for purposes of trial as “a person who is not financially able to employ counsel.” Id. art. 1.051(b) (Vernon 2005).
Here, when Goins undertook appellant’s representation, replacing appellant’s appointed counsel, appellant had been adjudicated an indigent; trial counsel had been appointed for him; appointed counsel’s motion for an investigator had been granted; and a motion for a free record had been filed. Goins himself then filed a motion for a free record, representing to the court that his client was indigent. However, because appellant was statutorily defined as not indigent, due solely to his retention of Goins, Goins could not ethically file an affidavit to show the trial court that appellant was still indigent, that no material change had occurred in his finances, and that he was constitutionally entitled to a free record of his prior trial for his defense without sacrificing his own pecuniary interest in the representation— as Goins, as a licensed criminal defense attorney, necessarily knew or should have known. Thus, no evidence regarding appellant’s financial abilities was presented to the trial court. Nor was Goins able to present an adequate defense without the transcript he failed to obtain, as demonstrated by the record.
The Rules of Professional Conduct are very clear as to the duties Goins breached.
First, Goins’ motion for a free record of appellant’s prior trial plainly states that appellant “is indigent.” If appellant was not indigent when the statement was made, this statement was false, Goins knew it to be false, and thus he knowingly violated Texas Disciplinary Rule of Professional Conduct 3.03(a)(1) (prohibiting a lawyer from making a false statement of material fact to a tribunal). Tex. Disciplinary R. Prof’l. Conduct 3.03(a)(1).
If Goins’ statement to the court that appellant was indigent at the time of his retrial was true, Goins violated his professional duty by undertaking representation knowing that his client’s interest in obtaining a free investigator and a free record essential to an adequate defense would be adversely limited by Goins’ own pecuniary interest in the representation. Rule of Professional Conduct 1.06 provides that “a lawyer shall not represent a person if the representation ... reasonably appears to be or become adversely limited by ... the lawyer’s or law firm’s own interests.” Id. at 1.06(b)(2). Comment 1 to Rule 1.06 states, “Loyalty is an essential element in the lawyer’s relationship to a client. An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined.” Id. at cmt. 1. Comment 5 states that “[t]he lawyer’s own interests should not be permitted to have adverse effect on representation of a client” and “a lawyer’s need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee.” Id. at cmt. 5.
*290Whether appellant was indigent or not, Goins further violated his professional duty to appellant by failing to obtain a transcript of the prior trial that he knew was essential to a constitutionally adequate defense. Rule 1.01 provides that “[a] lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence” and that he “shall not ... neglect a legal matter entrusted to [him].” Id. at 1.01(a), (b). “Neglect” is defined as “inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.” Id. at 1.01(c). Goins’ failure to exercise the due diligence required to obtain a record of appellant’s previous trial that was critical to a constitutionally adequate defense at appellant’s retrial can only be characterized as unprofessional neglect of the legal matters entrusted to him.
It is impossible to see how appellant’s constitutional interest in a fair trial was not adversely affected by Goins’ actions. If Goins did not know the transcript was necessary for a constitutionally adequate defense, he was professionally unqualified to represent appellant. If he did know, and neither obtained a transcript nor relinquished the representation, knowing that appellant was still indigent and was entitled to a free transcript, he breached his duty of loyalty and placed his own pecuniary interests in the representation ahead of his chent’s interest in having a adequate defense. Either way, Goins’ breach of his professional duty to his client was not “within the range of competence demanded of attorneys in criminal cases” and, therefore, violated the first prong of Strickland. Ex parte Chandler, 182 S.W.3d at 354 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).3 Moreover, having failed to obtain a transcript, Goins proved himself utterly unable to impeach the testimony of the officers upon whose testimony and credibility appellant’s conviction depended — this in a case in which the only witnesses against appellant, other than the chemist, were the two undercover police officers involved in the sting, and this following a prior mistrial in which four of the twelve jurors had voted to acquit appellant.
If Goins intentionally sacrificed the constitutional rights of his client to his own pecuniary interests, his representation was inadequate as a matter of law and prejudice is presumed. See Cuyler, 446 U.S. at 348-49, 100 S.Ct. at 1718-19; Ex parte Acosta, 672 S.W.2d at 474; White, 823 S.W.2d at 299-300. Even if inadequate representation is not presumed, however, there is still a reasonable probability that, but for Goins’ breaches of his professional duty to appellant, the result of the retrial would have been different. The first trial was a mistrial in a sting operation. It resulted in a retrial using the same witnesses. Those same witnesses were able to testify in the second trial without fear of impeachment by their past testimony because Goins failed to assure that his client obtained a constitutionally mandated transcript of his prior mistrial. In addition, with Goins as his attorney, and without a transcript to use for impeachment, appellant was sentenced to an extremely harsh maximum 99-year sentence for the nonviolent crime of possession of a controlled substance with intent to deliver.4 Thus, as *291a result of Goins’ representation, appellant suffered a sentence 59 years longer than even the maximum recommended by the prosecution, satisfying the prejudice requirement in the second prong of Strickland. See Chandler, 182 S.W.3d at 353-54 (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).
I would hold that appellant proved the ineffectiveness of his trial counsel, Goins, as a matter of law. Therefore, I would reverse appellant’s conviction and remand for a new trial.
A motion for rehearing was requested. See Tex.R.App. P. 49.1.
A majority of the panel denied rehearing.
En banc reconsideration was also requested. See Tex.R.App. P. 49.7.
A majority of the Court voted to DENY en banc reconsideration.
. One officer had been shot in an unrelated case and did not testify.
. In this case, all Goins had to rely on from the prior trial were his notes from his conversations with appellant.
. Goins’ failure to pursue a record of appellant’s prior trial cannot be attributed to "trial strategy,” because no reasonable trial strategy can justify his actions.
. Because appellant had two prior convictions, one for possession of a controlled substance and one for possession with intent to deliver, he faced a mandatory sentence of 25 *291years to life in prison or 99 years. See Tex. Pen.Code Ann. § 12.42 (Vernon Supp.2006).