dissenting.
I respectfully and emphatically dissent.
Medeiros is patently distinguishable from the case at bar because counsel there admitted he was not aware that the probation statutes prohibited the accused from being granted probation by the court. In the present case, counsel knew the law but did not explain it to his client.
The majority equates a failure to comply with the State Bar’s Code of Professional Responsibility with deficient performance. Assuming arguendo that it was deficient conduct amounting to unreasonable error, the appellant must show that the conduct *49actually had an adverse effect on the outcome of the case.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.
Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The defendant (appellant) has the clear burden to affirmatively prove prejudice. Strickland at 693, 104 S.Ct. at 2067. In what was an obvious exercise of sound trial strategy, trial counsel deemed it propitious to let the judge rather than the jury set the punishment. The jury could have assessed punishment at life or any term of not more than 99 years or less than 5 years. The trial judge actually assessed punishment at 8 years, 3 years above the minimum. We know not how much more the jury would have given.
The appellant has not overcome the presumption of sound trial strategy and has not shown that but for counsel’s alleged unprofessional error, the result of the proceeding would have been different. Strickland, 406 U.S. at 694, 104 S.Ct. at 2068. The majority falls into the very trap that Strickland cautions us to avoid that of second-guessing, particularly when counsel’s strategy may well have been successful.
Since on remand, the trial court need only conduct the punishment phase (TEX. CODE CRIM.PROC.ANN. art. 44.29(b), as amended acts 1987, 70th Leg., ch. 179, § 1, eff. Aug. 31, 1987), it will be interesting if the accused requests a jury to set his punishment. That will establish for the first time if trial counsel’s conduct was deficient.