concurring.
OVERVIEW
This case presents yet another problem created by the transfer of cases from one court of appeals to another under the plan for docket equalization.1 We have now *76reached the point of substantively altering the procedural due process which a litigant would otherwise obtain. If this case had not been transferred, there is no reason to believe that the Fort Worth Court of Appeals would not have reviewed the merits of the issue presented, ineffective assistance of counsel. However, this court requires preservation of a claim of ineffective assistance of counsel. Because the issue was not preserved, we decline to review the merits of this appeal.
BACKGROUND
It is a fundamental rule of appellate practice, with very few exceptions, that to complain about something a trial court did, you must have brought it to the attention of the trial court at a time and in a manner that the trial court understood the complaint and had the opportunity to correct it. See Lemons v. EMW Manufacturing, 747 S.W.2d 372, 378 (Tex.1988); Voth v. Felderhoff 768 S.W.2d 403, 412 (Tex.App.—Fort Worth 1989, writ denied); Blue v. State, 983 S.W.2d 811, 812 (Tex.App.—Houston [1st Dist.] 1998, pet. granted). This rule is currently embodied in the rules of appellate procedure. Tex. R.App. P. 33.1(a). The exceptions to this rule in civil cases are few. Voth, 768 S.W.2d at 412 (fundamental error). Jurisdiction is the issue most often allowed to be raised for the first time on appeal. See id.
However, in criminal cases there has traditionally been much greater latitude in issues that could be raised for the first time on appeal. There seems to be little justification for treating civil cases differently than criminal cases in terms of the need to preserve error at the trial court before it can be reviewed on appeal. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000, en banc). However, in criminal cases there are a variety of issues that have traditionally been allowed to be raised for the first time on appeal. One of these traditional areas has been claims of ineffective assistance of counsel.
GONZALEZ
There are fourteen courts of appeals across Texas. Until we issued the Gonzalez decision not a single court had held that it was necessary to preserve a claim *77of ineffective assistance of counsel. Gonzalez v. State, 994 S.W.2d 869 (Tex.App.—Waco 1999, no pet.). We have continued to follow the analysis of Gonzalez and the Court of Criminal Appeals has granted a petition for discretionary review in Robinson v. State, No. 10-98-194-CR (Tex.App.—Waco August 25, 1999, pet. granted) (not designated for publication), a case disposed of entirely upon the basis of Gonzalez. Robinson v. State, No. 99-1701 (Tex.Crim.App. December 15, 1999) (order granting petition for discretionary review). We have also elaborated on our analysis and reasoning in subsequent cases. See Foster v. State, 8 S.W.3d 445 (Tex.App.—Waco 1999, no pet.).
WHICH LAW CONTROLS?
Notwithstanding our belief that Gonzalez and Foster are correct on the issue, they have not, as of yet, obtained universal acceptance. In particular, we have found no opinion from Fort Worth which follows Gonzalez or holds that ineffective assistance of counsel claims must be preserved before they can be presented on appeal. To the contrary, Fort Worth has continued to review ineffective assistance of counsel claims on the merits without discussing the preservation issue. Mallet v. State, 9 S.W.3d 856 (Tex.App.—Fort Worth 2000, no pet.); Wood v. State, 4 S.W.3d 85 (Tex.App.—Fort Worth 1999, no pet.). The case currently before this Court was decided by a Tarrant County District Court. Appeal was taken to the Fort Worth Court of Appeals. By a transfer order from the Supreme Court for the purposes of docket equalization, it was transferred to this Court. The question is: Should we apply the law as we believe it should be across the State of Texas or should we apply the law in the manner we believe Fort Worth would apply it?
Because I am bound by the principle of stare decisis, I must yield my individual opinion to the law as previously announced by this court on transfer eases. We will apply the law as we believe it should be across the state. McLendon v. Department of Public Safety, 985 S.W.2d 571, 576-77 n. 6 (Tex.App.—Waco 1998, pet. filed). In McLendon, under the banner of being non-parochial, this court held that it would apply the law as it saw it, regardless of what some other court of appeals (from where the case originated) had announced it to be. What could be more parochial? Nevertheless, that is the rule under which I must operate at this time, for this case, and until directed otherwise by the high courts of this State. Accordingly, I concur in the majority opinion.
ORDER
PER CURIAM.
On March 15, 2000, we issued an opinion affirming James Jaubert’s conviction for one court of murder and four counts of attempted murder. See Tex. Pen. Code Ann. §§ 19.02, 15.01 (Vernon 1994). His only assertion on appeal was ineffective assistance of counsel, which we declined to review on the basis that it had not been preserved in compliance with Rule 33.1. See Tex.R.App.P.33.1. Jaubert filed a petition for discretionary review on April 7. On April 13, the Court of Criminal appeals issued Robinson v. State, holding that compliance with Rule 33.1 is not necessary to bring a claim of ineffective assistance of counsel on appeal. Robinson v. State, 16 S.W.3d 808, 813 (Tex.Crim.App.2000). Thus, we grant rehearing in this cause on our own motion so that we may address the merits of Jaubert’s complaint. Tex. R.App. P.50. The original opinion and judgment of March 15, 2000, are withdrawn. *78Id.1
OPINION ON PETITION FOR DISCRETIONARY REVIEW
VANCE, Justice.James Jaubert, Jr. pled guilty to one count of murder and four counts of attempted murder. He elected to have the jury assess punishment. After the punishment hearing, Jaubert was sentenced to sixty years for the murder charge, twenty years for one attempted murder charge, and ten years for each additional attempted murder charge. He appeals, asserting only that trial counsel was ineffective in failing to request that the State give notice of its intent to offer evidence of extraneous offenses or bad acts. We will reverse the judgment and order a new punishment hearing.
BACKGROUND
On March 15, 2000, we issued an opinion affirming Jaubert’s conviction. His only assertion on appeal was ineffective assistance of counsel, which we declined to review on the basis that it had not been preserved in compliance with Rule 33.1. See Tex.R.App. P. 33.1. Jaubert filed a petition for discretionary review on April 7. On April 13, the Court of Criminal Appeals issued Robinson v. State, holding that compliance with Rule 33.1 is not necessary to bring a claim of ineffective assistance of counsel on appeal. Robinson v. State, 16 S.W.3d 808, 813 (Tex.Crim.App.2000). Thus, we granted rehearing in this cause on our own motion so that we could address the merits of Jaubert’s complaint. Tex.R.App. P. 50.
RELEVANT FACTS
Jaubert and fellow gang-members were involved in three drive-by-shootings in Fort Worth during April 1994 and July 1995. Bullets killed one young man and wounded four others. Jaubert pled guilty to five separate indictments and elected to have a jury assess punishment. During the punishment stage, Jaubert testified about the shootings and presented character evidence from several witnesses. Jau-bert argues that he was ambushed when the State repeatedly attempted to elicit evidence of extraneous offenses and bad acts. For example, during the cross-examination of Louis Pedleton, Jaubert’s uncle, the following exchange took place:
Q. [By Ms. Box, the State’s attorney]: Okay. You just mentioned that the Defendant’s father has given you an impression of the Defendant’s behavior and attitude while he’s been in jail; is that correct?
A. Yes, ma’am.
Q. And did his father also make you aware of a variety of disciplinary actions this Defendant has had while he’s been in custody?
A. No, ma’am.
Q. And did you hear from the Defendant’s father, I guess starting with 1995, that the Defendant, in fact, got into a fist fight back in February of ’95?
A. I heard that something of that nature, someone had — in jail, you know, things happen in jail.
Q. And did he also make you aware of this Defendant’s involvement in a rape while he was in jail?
A. No, he didn’t.
*79This testimony was elicited without an objection by Jaubert’s trial counsel. While questioning Jaubert’s father, the State’s counsel asked the following questions:
Q. And as far as the rape offense in jail, are you aware that your son actually was the person who slapped the victim so hard he became unconscious?
A. No, I was not.
Q. Were you aware that the officer that interviewed the victim in that case observed bruises on the victim’s face and arms and he had hair falling out of his head?
A. No.
Q. Are you aware that the victim also had blood coming from his anus?
A. No, I was not.
Q. Were you aware that the victim told the nurse that he had been beaten and raped four times in the last week?
A. No.
Q. Were you aware that the victim was so afraid of your son that he refused to prosecute this case?
A. I was not aware.
This testimony was also elicited without an objection by Jaubert’s trial counsel. In her cross-examination of the Defendant, counsel for the State asked the following questions of the Defendant, not only about the alleged rape, but other incidents of misconduct:
Q. We’ll get back to that conflict in a minute. What I’m asking you is: Do you recall back on April 11th of 1994, refusing to obey an order of a female officer over in the jail?
A. No, I don’t.
Q. Let me ask you about February 12th of 1995. Do you recall hitting another inmate as he left the shower with your fist?
A. No, I don’t.
Q. And of course, let’s talk about the April 11th, 1995 rape of Kevin Manning. Is it still your position that you were in a different cell at that time?
A. Exactly.
Q. Okay. There’s no way that you could have participated in that?
A. No way possible.
Q. Do you recall telling the victim in that case, Mr. Kevin Manning, that, quote, unquote, “Come here, Bitch, or I’ll kill you”? Do you recall saying that?
A. No, ma’am.
Q. Do you recall hitting Mr. Manning to such an extent that he passed out and was unconscious?
A. No, ma’am.
Q. So it’s your position that you never raped Mr. Manning; is that right?
A. That’s right.
Q. Never participated in it?
A. I never participated.
Q. Are you aware that other inmates observed you while this was going on?
A. I never participated.
DISCUSSION
In his sole issue for review, Jaubert contends that his retained trial counsel faked to render effective assistance of counsel as required by the Sixth Amendment to the United States Constitution and by Article 1, Section 10 of the Texas Constitution. In particular, Jaubert argues his trial counsel did not render effective assistance of counsel during the punishment phase of the trial because he failed to request that the State give notice of its intent to offer evidence of extraneous *80offenses or bad acts. Tex.Code Crim. Proo. AnN. art. 37.07, § 3(g) (Vernon Supp.2000).
A. Extraneous Offenses and Bad Acts
Article 37.07, section 3(a) permits the court to admit evidence at punishment of extraneous offenses or bad acts. Id. § 3(a). Evidence admitted under section 3(a) serves to provide the jury “with all relevant evidence in order to assess fair and appropriate punishment.” Beasley v. State, 902 S.W.2d 452, 457 (Tex.Crim.App.1995); Chimney v. State, 6 S.W.3d 681, 697 (Tex.App.—Waco 1999, no pet.). However, through article 37.07, section 3(g), a defendant can discover if the State intends to offer this type of evidence. Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g).
B. Ineffective Assistance of Counsel
Texas courts adhere, as we must, to the United States Supreme Court’s two-pronged Strickland test to determine whether counsel’s representation was so inadequate as to violate a defendant’s Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). The Court of Criminal Appeals recently held that Strickland applies to the punishment phase of a noncapital case. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App.1999).1
Strickland requires a defendant to show that: (1) counsel’s representation fell below an objective standard of reasonableness and (2) counsel’s deficient performance prejudiced the defendant. Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 1034, 145 L.Ed.2d 985 (2000); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Thompson, 9 S.W.3d at 813. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id.
However, sometimes a single error is so substantial that it alone causes an attorney’s assistance to fall below the Sixth Amendment standard. Thompson, 9 S.W.3d at 813; Mitchell v. State, 23 S.W.3d 582, 586 (Tex.App.—San Antonio, no pet.). Courts have frequently found counsel ineffective because of a single error affecting only the punishment assessed. Ex parte Scott, 581 S.W.2d 181, 182 (Tex.Crim.App.1979); Cooper v. State, 769 S.W.2d 301, 305 (Tex.App.—Houston [1st Dist.] 1989, pet. refd); May v. State, 660 S.W.2d 888, 890 (Tex.App.—Austin 1983), aff'd, 722 S.W.2d 699 (Tex.Crim.App.1984); Burnworth v. State, 698 S.W.2d 686, 690 (Tex.App.—Tyler 1985, pet. refd). To ignore a grievous error simply because it is single, while granting relief where multiple errors cumulatively reach the same magnitude, would be contrary to the reasons that caused the creation of the doctrine of ineffective assistance of counsel. Valencia v. State, 966 S.W.2d 188, 191 (Tex.App.—Houston [1st Dist.] 1998, pet. refd).
C.Analysis
Jaubert argues his trial counsel was ineffective when he failed to request that the *81State give notice of its intent to offer evidence of extraneous offenses or bad acts. Tex.Code Grim. Proo. Ann. art. 37.07, § 3(g). The State claims that Jaubert’s trial counsel was prepared, and that Jau-bert has failed to overcome the presumption that his counsel’s conduct might be considered sound trial strategy.
1. Objective Standard of Reasonableness
When reviewing a claim of ineffective assistance of counsel under the first prong, there exists a strong presumption that defense counsel’s conduct was reasonable and constitutes sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2066. We evaluate the totality of the representation from counsel’s perspective at trial, rather than counsel’s isolated acts or omissions in hindsight. Gutierrez v. State, 8 S.W.3d 739, 749 (Tex.App.—Austin 1999, no pet.). Appellant has the ultimate bur den to overcome this presumption and demonstrate not only that counsel’s performance was unreasonable under the prevailing professional norms, but that the challenged action was not sound trial strategy. Id.
a. Trial Counsel’s Participation
The State first argues' that trial counsel was effective because he participated in voir dire, cross-examined State’s witnesses, presented witnesses for his defense, and filed eight motions. However, the Court of Criminal Appeals has held that this level of participation alone is not sufficient to show that counsel acted reasonably. Ex parte Walker, 794 S.W.2d 36, 37 (Tex.Crim.App.1990).
In Walker, although counsel gave competent advice about who should have assessed punishment, he failed to effect his client’s wishes by neglecting to file a “motion to elect” prior to trial. Id. at 36-37. The Court held that even though the trial court had made findings that counsel had filed numerous pre-trial motions, conducted voir dire, cross-examined the State’s witnesses, made numerous objections, made arguments at both phases of the trial, preserved the defendant’s right to appeal, investigated the facts of the case, and discussed the law with the defendant, this single error rendered his assistance ineffective. Id. at 37. Likewise, Jaubert’s trial counsel’s level of participation alone is not sufficient to show that he was effective.
b. Sound Trial Strategy
Both the State and dissent claim that Jaubert has failed to overcome the presumption that his trial counsel’s conduct was sound trial strategy. In Ex Parte Menchaca, the defendant was tried for delivery of a controlled substance. 854 S.W.2d 128, 129 (Tex.Crim.App.1993). During cross-examination, the State elicited testimony from Menchaca concerning his prior conviction for rape. Id. Mencha-ca claimed his counsel was ineffective in failing to file a motion in limine to prohibit the introduction of the prior conviction. Id. The Court of Criminal Appeals held that there could be no strategic basis for failing to file the motion in limine. Id. at 133.
Similarly, here there could be no strategic basis for not requesting notice under article 37.07, section 3(g). See id. “The purpose of article 37.07, section 3(g) is to avoid unfair surprise, that is, trial by ambush.” Chimney, 6 S.W.3d at 693; Nance v. State, 946 S.W.2d 490, 493 (Tex.App.—Fort Worth 1997, pet. refd). “In other words, the purpose is to allow the defendant adequate time to prepare for the State’s introduction of the [evidence] at trial.” Chimney, 6 S.W.3d at 693-94.
The benefit of article 37.07, section 3(g) to a defendant does not turn on whether his attorney is aware of his extraneous *82misconduct. Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g). Rather, the section provides a mechanism for a defendant to discover what evidence the State is aware of and whether it intends to offer it to affect his punishment. Id. A defendant is not required to disclose anything to the State when making the request. Id. Article 37.07, section 3(g) operates to provide a one-way flow of information from the State to the defendant. Id. There could be no strategic basis for not requesting notice under article 37.07, section 3(g). See Ex Parte Menchaca, 854 S.W.2d at 133.
We find that this failure was unreasonable and is not justified by “trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see Valencia, 966 S.W.2d at 191. Jaubert has shown that his trial counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
2. Prejudice
The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Id. at 687, at 2064; Mallet v. State, 9 S.W.3d 856, 866 (Tex.App.—Fort Worth 2000, no pet.). A defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 669, at 2056.
In Menchaca, the Court of Criminal Appeals held that Menchaca’s prior conviction permeated the entire guilt-innocence phase of the trial, flowing from his trial counsel’s failure to file a motion in limine. Ex Parte Menchaca, 854 S.W.2d at 133. The determination of the Menchaca’s guilt rested entirely on the credibility of the witnesses. Id. The Court observed that the State used Menchaca’s prior conviction to undermine his credibility and stated that Men-chaca was not worthy of belief because he was “a convicted rapist.” Id.
The adversarial process broke down at the punishment stage in this case. See Mitchell, 23 S.W.3d at 587. Due to counsel’s failure to request notice, Jaubert and his character witnesses were ambushed when the State repeatedly attempted to elicit evidence of extraneous misconduct including the rape of a jail inmate by Jaubert. The record is silent about who fired the fatal shot that killed the young man. Jaubert presented testimony from a number of character witnesses. However, their testimony about his character was overshadowed by evidence of extraneous misconduct, particularly as it related to the rape incident.
There is a reasonable probability that but for the attorney’s error Jaubert’s sentence would have been less. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see Valencia, 966 S.W.2d at 190. As a result, Jaubert has satisfied the second prong that his counsel’s error was so serious that it deprived him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Thus, we hold that the failure to request notice under article 37.07 was an error of a magnitude significant enough to render Jau-bert’s counsel ineffective. Thompson, 9 S.W.3d at 813; Mitchell, 23 S.W.3d at 586.
D. Reply to the Dissent
The dissent cites three reasons: 1) misapplication of the law to the facts; 2) disregard of higher court precedent; and 3) a rewrite of a statute. We will address each of these.
1. The Dissent Does not Apply the Plain Lanyuage of the Statute
*83The dissent essentially claims that because none of the extraneous offense evidence was introduced during the State’s “case-in-chief’ the State would have no duty to disclose its intent to introduce the evidence, even if Jaubert’s attorney had made the article 37.07 request. Thus, the dissent claims, there can be no ineffective assistance of counsel for having failed to make such a request. However, the dissent fails to apply the plain language of article 37.07, section 3(g). Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g).
The dissent relies on an opinion of the Second Court of Appeals, which addressed whether the notice requirements of article 37.07, section 3(g) applies to rebuttal evidence. Washington v. State, 943 S.W.2d 501, 505 (Tex.App.—Fort Worth 1997, pet. refd). In Washington, the Court observed that article 37.07 sets forth the rules for conducting the punishment phase of a trial. Id. at 503. We agree. Section 3(g) of that article provides:
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence.!2] If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.
Tex.Code Crim. Proo. Ann. art. 37.07, § 3(g).
The Court further stated that Rule 404(b) is the rule of evidence governing the admission of similar evidence at the guilt-innocence phase of trial. Washington, 943 S.W.2d at 503. We agree with this statement as well. Rule 404(b) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.
Tex.R. Evid. 404(b).
However, in Washington, the Court held that article 37.07, section 3(g), like rule 404(b), is limited to evidence the State intends to offer in its case-in-chief. Id. at 506. The Court looked to extratextual considerations, and concluded that based on the legislative history of the statute, the Legislature did not intend to expand the State’s duty to provide notice. Id. at 505.
We disagree with the Fort Worth Court’s reasoning. When inter*84preting a statute, we employ the ordinary meaning of the language of that statute. State v. Mancuso, 919 S.W.2d 86, 87 (Tex.Crim.App.1996); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). We resort to extratextual considerations “[o]nly when the application of a statute’s plain language is ambiguous or would lead to absurd consequences which the Legislature could not possibly have intended.” Maneuso, 919 S.W.2d at 88. “Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or [to] subtract from such a statute.” Id.
According to Washington, article 37.07 sets forth the rules for conducting the entire punishment phase of a trial. Washington, 943 S.W.2d at 503. Article 37.07, section 3(g) states that upon request, “notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence.” Tex.Code CRim. Proo. Ann. art. 37.07, § 3(g) (emphasis added). However, unlike section 3(g), Rule 404(b) is explicitly limited to evidence introduced during the State’s “case-in-chief.” Tex.R. Evid. 404(b) (“notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence”) (emphasis added). If the Legislature intended to limit the State’s duty to provide notice, as the dissent and the Washington court claim, then the plain language of article 37.07, section 3(g) would limit its application to evidence the State intends to offer in its “case-in-chief.” However, this limitation is absent from section 3(g). Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g).
We recognize that section 3(g) also states that notice is given, “in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence.” Id. (emphasis added). Manner is defined as “a way, mode, method of doing anything, or mode of proceeding in any case or situation.” Black’s Law Dictionary 963 (6th ed.1990). Consequently, this portion relates only to the procedure governing a defendant’s request and the State’s response to that request, and not to the scope of the information to which the section applies.
We presume that the Legislature uses every word and phrase in a statute for a purpose, and if the Legislature excludes certain words in a statute, it does so for a reason. Uribe v. State, 7 S.W.3d 294, 296 (Tex.App.—Austin 1999, pet. refd). As a result, the plain language of section 3(g) establishes that its scope encompasses the entire punishment phase, and is not limited to the State’s case-in-chief. McCain v. State, 22 S.W.3d 497, 501 (Tex.Crim.App.2000).
2. The Dissent Makes a Number of Presumptions
The dissent claims that we have ignored higher court precedent and reversed the presumption that Jaubert’s trial counsel was effective. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. It claims that we have “searched the record for an explanation to justify why counsel would not have made the request,” and even ignored statements which would explain why Jaubert’s counsel did not. However, the dissent’s theory is based upon a number of presumptions and will not support the assertion that Jau-bert’s counsel was effective.
The dissent points to the State’s open file policy as an explanation for the absence of an article 37.07, section 3(g) request. However, an “open file” policy is not a substitute for discovery. In fact, the Court of Criminal Appeals has held that a State’s open file policy will not satisfy a Rule 404(b) request. Buchanan v. State, 911 S.W.2d 11, 15 (Tex.Crim.App.1995).
*85There are no controls on the “open file.” In the criminal courts, the defendant is not entitled to a copy of the file, but is only permitted to examine the file and take notes. The State can add to or subtract from the file after the defendant sees it. As a result, the defendant would have to make daily or weekly trips to the district attorney’s office just to check its contents. However, an article 37.07, section 3(g) request imposes an ongoing duty upon the State to notify a defendant of all extraneous offense evidence it intends to introduce. Consequently, a State’s open file will not substitute for an article 37.07, section 3(g) request.
The dissent also points to the fact that an oral request or voluntary cooperation could have existed between the parties. However, the record does not reflect these possibilities. Furthermore, according to the dissent, there is a pragmatic explanation for not making a request. It states that based on the “doctrine-of-negative-surveillance,” a request would place a defendant’s extraneous acts under greater scrutiny and could possibly lead to the discovery of other acts.
However, this proposition assumes that the State is normally inept in its knowledge of a case and in its preparation for trial. We do not join that assumption. Section 3(g) does not provide a mechanism by which the State could learn about additional extraneous crimes or bad acts. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g). Rather, section 3(g) provides a mechanism for a defendant to discover extraneous evidence which the State has and which it intends to offer into evidence to assess his punishment. See id.
The dissent’s last explanation of why Jaubert’s trial counsel failed to make an article 37.07, section 3(g) request, is “that having nothing to counter this evidence with, the defense ‘put their best foot forward’ and hoped for the best.” However, this argument actually supports our finding that Jaubert’s counsel was ineffective. See Mitchell, 23 S.W.3d at 587. As a result, we disagree with the dissent’s theory that we have ignored higher court precedent and reversed the presumption that Jaubert’s trial counsel was effective.
3. The Dissent Presumes the Defense Bar will Behave Unprofessionally
The dissent further claims that we have rewritten article 37.07, section 3(g), “to require the State to disclose evidence of extraneous bad acts, without a request, if under any scenario which may develop at trial the State could seek to introduce or refer to a prior bad act or extraneous offense for any purpose.” It states that “[i]f the State fails to make this disclosure the State must forego all use of the evidence or the defendant is guaranteed a new trial.” The dissent claims that this opinion will encourage “gamesmanship,” and its “fear is that the very decision of whether or not to make an Article 37.07 request, versus the potential to obtain a new trial (at least on punishment) will become part of trial strategy.”
The dissent’s theory is similar to one previously espoused by the Fourth Court of Appeals in Rodriguez v. State, 981 S.W.2d 357, 359 (Tex.App.—San Antonio 1998, no pet.). In Rodriguez, the Court held that counsel’s failure to request that the State give notice under article 37.07, section 3(g) was not sufficiently egregious to render her assistance ineffective. Id. The Court reasoned that to hold otherwise would effectively block any attempt by the State to introduce evidence of this type, because in the case of an unfavorable result a defendant would be able to claim ineffective assistance as a matter of right. Id.
*86We disagree. This theory presumes that the defense bar will behave unprofessionally and risk being found ineffective and incompetent, solely to further a single client’s interests. Under the Disciplinary Rules of Professional Conduct, a lawyer is a representative of clients, an officer of the legal system, and a public citizen having a special responsibility for the quality of justice. Tex. DisciplinaRY R. Prof’l Conduct preamble ¶ 1. Lawyers, as guardians of the law, play a vital role in the preservation of society. Id.
The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. Id. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct. Id. A lawyer should zealously pursue clients’ interests within the bounds of the law, however, in doing so, a lawyer should be competent, prompt and diligent. Id. at ¶ 3. The defense bar is likewise governed by these rules of professional conduct, and we will not presume that they will behave contrary to those requirements. Consequently, we are not persuaded by the dissent’s theory that the defense bar will behave unprofessionally solely to further a client’s interests.
CONCLUSION
We find no strategic reason for failing to request notice under article 37.07, section 3(g). See Ex Parte Menchaca, 854 S.W.2d at 133. Consequently, Jaubert has overcome the presumption that his trial counsel’s conduct, during the punishment phase, was reasonable. Furthermore, there is a reasonable probability that but for the attorney’s error Jaubert’s sentence would have been less. As a result, Jau-bert’s counsel’s error was so serious that it deprived him of a fair punishment hearing.
Accordingly, we find that his counsel failed to render effective assistance as required by the Sixth Amendment to the United States Constitution and by article 1, section 10 of the Texas Constitution. Therefore, because the error occurred during the punishment phase, we reverse the judgment and remand the cause to the trial court for a new punishment hearing in accordance with article 44.29(b) of the Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp.2000); Ex parte Welch, 981 S.W.2d 183, 185-86 (Tex.Crim.App.1998).
. For other cases and discussions of the problems created by the docket equalization transfer system see the following cases and the authorities cited therein:
1. Pena v. State, 995 S.W.2d 259, 261 (Tex.App.—Corpus Christi 1999, no pet.) (" ... where an issue concerns technical, procedural requirements such as the issue before us ... practitioners *76rightfully look to the opinions of the appellate court in their jurisdiction for guidance on accepted practice. We hold that when an appellate court has a case presenting this kind of issue transferred to it, the court accepting the transfer should apply the law of the transferring jurisdiction so as to uphold the rightful expectations of practitioners in the transferring jurisdiction.”).
2. American National Insurance Company v. International Business Machines Corporation, 933 S.W.2d 685 (Tex.App.—San Antonio 1996, writ denied) (Duncan, J., concurring and dissenting) ("Rather, I dissent because I believe the law governing this appeal is that enunciated by the First Court of Appeals, and that law clearly mandates affir-mance of the summary judgment on ANICO's fraud claims.”) Justice Duncan conducts a detailed analysis of the "myth of uniformity” and the application of a choice of law type analysis. The concept that the State of Texas has one uniform law was relied on by this court in McLendon v. Texas Department of Public Safety, 985 S.W.2d 571, 576-77 n. 6 (Tex.App.—Waco 1998, pet. filed).
3. Kaufman v. State, 901 S.W.2d 653 (Tex.App.—El Paso 1995, pet. refd.) (Larsen, J., concurring) ("I concur in the majority opinion, its reasoning and holding, but I write to point out the vagaries of the present 'docket equalization' system by which various courts of appeals are required to accept transfer cases from other courts.... It seems appropriate that we at least consider the reasoning of this 'home court' in reaching our own conclusions.”).
. Jaubert's petition for discretionary review is dismissed by operation of law. TexR.App.P. 50.
. Hernandez expressly overruled Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980), and Ex parte Cruz, 739 S.W.2d 53 (Tex.Crim.App.1987), and held that Strickland requires that all ineffective assistance of counsel claims must show prejudice that is a result of counsel's deficient performance. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984)).
. In 1998, the Texas Rules of Evidence were jointly promulgated by the Texas Supreme Court and the Texas Court of Criminal Appeals. The combined rules became effective on March 1, 1998, however, section 3(g) does not reflect this change. Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp.2000). Former Rule 404(b) of the Texas Rules of Criminal Evidence is substantially identical to Rule 404(b) of the Texas Rules of Evidence. Compare Tex.R.Crim. Evid. 404(b), 701-702 S.W.2d (Texas Cases) XXIX, XXXVII, with Tex.R. Evid. 404(b). Thus, we cite to the current rule for ease of reference.