dissenting on en banc consideration.
I respectfully dissent. The central issue presented by this appeal is whether trial counsel’s dual representation of appellant and her co-defendant required him to sacrifice appellant’s individual interests to the interests of the joint defense strategy, depriving her of her Sixth Amendment right to effective assistance of counsel. The majority’s argument that appellant’s counsel, Arthur Jackson, reasonably chose to put on a joint defense, to my mind, begs this question. Because I would hold that appellant met her burden of proof by demonstrating that Jackson was burdened by an actual conflict of interest that adversely affected her interests throughout trial and sentencing, as demonstrated from the record, and because I would also hold that appellant demonstrated that Jackson failed to investigate and put on a defense and mitigating evidence on her behalf that would have benefitted her, but would have interfered with his joint defense strategy, thereby probably causing the rendition of an improper judgment, I would reverse and remand for a new trial.
Conflict of Interest
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997) (citing U.S. Const, amend. VI). The Sixth Amendment guarantees not just the right to counsel, but the right to reasonably effective assistance of counsel. Id. (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). Ineffective assistance of counsel may result when an attorney labors under a conflict of interest. Id. In such a situation, counsel may breach the duty of loyalty, perhaps the most basic of counsel’s duties. Id.
The standard of proof of conflict of interest is set out in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and Monreal. A defendant can demonstrate a violation of his right to reasonably effective assistance of counsel when, as here, he has not raised any objection at trial if he can show (1) that his counsel was burdened by an actual conflict *327of interest and (2) that the conflict had an adverse effect on specific instances of counsel’s performance. Cuyler, 446 U.S. at 348-350, 100 S.Ct. at 1718-20; Monreal, 947 S.W.2d at 564.
An actual conflict of interest exists if 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. Monreal, 947 S.W.2d at 564 (citing James v. State, 763 S.W.2d 776, 779 (Tex.Crim.App.1989)). The appellant must specifically identify instances in the record that reflect a choice his counsel made between possible alternative courses of action, “ ‘such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.’ ” Ramirez v. State, 13 S.W.3d 482, 488 (Tex.App.-Corpus Christi 2000, pet. dism’d) (quoting Perillo v. Johnson, 79 F.3d 441, 447-48 (5th Cir.1996)). Once the existence of an actual conflict has been established, prejudice to the appellant must be presumed. Id. When the attorney is placed upon the “horns of a dilemma” as to services for one client over another, an actual conflict exists and each client must be made aware of such conflict before the attorney may ethically proceed with the case. James, 763 S.W.2d at 779.
To prove an adverse effect, a defendant need not show that the conflict changed the outcome of the trial. Ramirez, 13 S.W.3d at 487. Rather, the defendant must demonstrate that some plausible defense strategy or tactic might have been pursued, but was not because of the conflict. Id.; see also Perillo, 79 F.3d at 449. A defendant who shows that a conflict of interest adversely affected the adequacy of representation need not demonstrate prejudice to obtain relief. Ex parte Acosta, 672 S.W.2d 470, 474 (Tex.Crim.App.1984); Ramirez, 13 S.W.3d at 487.
Appellant has pointed out numerous specific instances of Jackson’s actual conflict and its adverse effects on her representation.
Trial Stage
As recited by the majority, Officer Sad-ler entered the apartment appellant shared with her co-defendant, Wheatfall, claiming he had seen cocaine “in plain view” on the coffee table in front of Wheat-fall, secured the cocaine, and then obtained consent from appellant to search her apartment. During that search, Sadler found in the apartment and in appellant’s purse nine prescription pain-relief pills (hydrocodone), Tylenol, Dramamine pills, and an unidentified over-the-counter cough medicine. Of these, the only controlled substances were the hydrocodone pills; appellant produced a prescription for three of the nine hydrocodone pills at trial.
Appellant was indicted for possession of cocaine with the intent to deliver (a felony) and for possession of the pills (a misdemeanor); and Wheatfall was indicted for possession of a controlled substance (the cocaine). This case was tried against appellant on the charge of possession of the cocaine with intent to deliver, and against Wheatfall on the charge of possession of the cocaine. Significantly, appellant and Wheatfall were not only charged with different crimes, they had dramatically different records and therefore faced dramatically different punishments if found guilty.1 Nevetheless, Jackson undertook *328to represent both clients and defend them with a joint defense.
On appeal, appellant complains that Jackson suffered from a conflict of interest that adversely affected her defense. She has pointed out numerous places in the record where Jackson made no attempt before or during trial to control testimony prejudicial to her, either through a motion in limine or with an objection with a request for an instruction to disregard. She has also pointed out Jackson’s failure to put on evidence favorable to her defense.
Jackson’s entire strategy appears to have been to pursue only those avenues of defense that corresponded to a joint defense strategy, no matter what the effect might be on appellant’s individual interests. Thus, in connection with his joint defense strategy, Jackson filed a motion to suppress the evidence, which was carried with the trial, but was taken up outside the presence of the jury almost immediately after voir dire began. As both the majority and appellate counsel point out, this was the only defense possible, given Jackson’s dual representation. At the hearing on the motion to suppress, Jackson argued only that the cocaine should be suppressed because it was not in plain view, attempting ineffectually to elicit testimony to this effect from Sadler. Sadler not' only testified that the cocaine was in plain view, but also testified at length about the “large quantity” of pills found in the apartment, repeatedly referring to them as “narcotics” and “contraband” “strewn” throughout the house, particularly in appellant’s handbag and on her bedside table,2 and he testified to extensive past contacts with appellant during his investigation of activities involving prostitution and narcotics. The motion to suppress was denied.
Despite the prejudicial nature of Sad-ler’s testimony at the motion-to-suppress-hearing, Jackson did not file a motion in limine and freely allowed Sadler to repeat at trial his testimony about the “large quantity” of “narcotic pills” he found in appellant’s handbag and on her nightstand and “pretty much everywhere,” using the same ■ inflammatory and misleading language, with no objection whatsoever. Rather, Jackson asked, “With all of this, then why would you need a consent to search form signed?”
In addition, Sadler testified that, after he secured the front room, he determined that some of appellant’s children were in the back room. He described how appellant’s daughter came out of a back room and fell to the floor crying, “My mother’s going back to prison. My mother’s going back to prison.” He testified that a Hispanic male found in the apartment had an outstanding warrant for indecency with a child. Having made no motion in limine to control any of this additional prejudicial testimony against appellant, Jacks.on likewise failed to object to any of it at trial.
On cross-examination, Jackson, appellant’s own counsel) spent 20 pages of the record asking Sadler why he had come to the apartment and eliciting testimony that the officer had made many narcotics arrests, that he was very familiar with appellant, that she was suspected of drug use *329and prostitution on previous occasions; and that she had only recently been released from prison.3 This testimony elicited by appellant’s counsel could serve no purpose other than to confirm any suspicions the jury might have had about appellant’s bad character, prison record, narcotics use, prostitution, and drug dealing, thereby irredeemably prejudicing appellant, while diverting attention from Jackson’s other client, Wheatfall, who was never mentioned in the trial except as sitting on the sofa and lunging for the cocaine in front of him when Sadler entered the living room. Wheatfall was thus benefitted at appellant’s expense.
In addition to both eliciting and failing to control or object to testimony irrelevant to his joint defense strategy of suppressing evidence regarding the cocaine, but highly prejudicial to appellant, Jackson never argued a mere presence defense on appellant’s behalf, even though, as appellant now argues, “[tjhat is a very viable defense in a situation like this where there is no other information concerning any activity in the house.”4 Of course, as appellant further argues, no such defense could be made on appellant’s behalf, given Jackson’s dual representation of appellant and Wheatfall, since if appellant was merely present in the room where cocaine was found and Wheatfall was reaching for the cocaine, the only reasonable inference is that Wheatfall, and not appellant, possessed the cocaine. Moreover, since Jackson had allowed Sadler to testify freely about the “narcotics” and “contraband” in appellant’s purse and bedroom, and had himself elicited testimony from Sadler about that officer’s past contacts and familiarity with appellant, the prejudicial effect of such testimony would have far outweighed any credence a jury might be tempted to give to a mere presence defense.
Jackson failed even to press the sole object of his joint defense effort — the argument that the cocaine should be sup*330pressed because it was not in plain view— when to do so would have necessitated further questioning of appellant’s son, Nathan Spinks. Nathan, whom Jackson called as his next-to-last witness (Sadler being the last), testified that he and his mother had been at the beach earlier in the day and that, at the time Sadler was knocking at the door of apartment 115 across the hall, he was leaving the apartment to do some laundry; Sadler saw Nathan across the hall and asked him to step back inside the apartment, but, before he could, Sadler shoved him out of the way. Nathan also testified that the cocaine was “under some papers and stuff on the table” and that it was not in “plain view.” Once he had elicited this information, Jackson terminated his questioning of Nathan without asking him if he knew how the cocaine got there, how long had it been there, how long after he and his mother had returned from the beach Sadler had come to the apartment, or — most critically — who had care, custody, or control of the cocaine. That is, Jackson failed to ask all the questions that might have gone to establish appellant’s mere presence defense, but which could only have undermined a joint defense — as appellant points out.
In my view, the most charitable inference from the multiple instances of Jackson’s sacrifice of appellant’s interests is that Jackson was hamstrung by his dual representation of both appellant and her co-defendant and that he resolved his dilemma by sacrificing appellant’s interests to the only defense he could present on behalf of both his clients — that evidence of the cocaine should have been suppressed. Even that, however, does not explain Jackson’s failure to seek to prohibit highly inflammatory irrelevant testimony, unless his sole goal was to advance Wheatfall’s interest in being considered as less culpable than appellant, at appellant’s expense, so that the differences between them would be minimized. I would hold that appellant showed that Jackson had an actual conflict of interest which adversely affected her and that she was therefore denied her Sixth Amendment right to effective representation at trial.
Punishment Phase
I would also hold that Jackson’s conflict of interest manifested itself at the punishment phase, again denying appellant her right to conflict-free representation, as appellant contends in her second point of error.
In all criminal cases, after a finding of guilt, both the State and the defendant may offer evidence as to any matter the court deems relevant to sentencing. The trial court is also required to afford a defendant the opportunity to present evidence regarding punishment. TexCode ÜRiM. PROC. Ann. art. 37.07, § 3(a)(1) (Vernon Supp.2004). Such evidence may include a defendant’s prior criminal record, general reputation, character, an opinion regarding character, the circumstances of the offense for which the defendant is being tried, and any other evidence of an extraneous crime or bad act the defendant has been shown beyond a reasonable doubt to have committed. Id.
Prior to sentencing, the State proved that appellant was the same person who had been placed on four years’ deferred adjudication for possession of one to four grams of cocaine on July 31,1999, and that the probation was revoked when appellant was subsequently convicted of another possession of one to four grams of cocaine on August 26, 1999. Appellant was sentenced on both counts to three years in prison and, therefore, had one enhancement paragraph. If the enhancement were found “true” by the jury, the range of her punishment was from two to 20 years in prison; if it were found “not true,” appellant’s *331maximum sentence was 10 years. See Tex. Pen.Code. Ann. §§ 12.33, 12.42(a)(3) (Vernon 2003). Her co-defendant, Wheatfall, had three prior felony convictions and two enhancement paragraphs which were also proved. (He was indicted as an habitual offender.) Therefore, the range of his punishment was from 25 to 99 years or life in prison, if both enhancements were found true. See Tex. Pen.Code. Ann. § 12.42(d) (Vernon 2003).
Jackson failed to put on any punishment witnesses to counter the State’s evidence of appellant’s prior convictions and revocation of probation. Again, his strategy appears to have been to minimize the differences between his two clients. However, Wheatfall faced the potential of a much longer sentence. Jackson’s representation of both appellant and her co-defendant thus presented a dilemma. Despite their different criminal records, Jackson asked the jury to determine that both appellant and her co-defendant receive equal punishment. Because the maximum punishment appellant could receive was 20 years, if both enhancements were found true, and the maximum sentence Wheatfall could receive was life in prison, with a minimum punishment of 25 years, if both of his enhancements were found true, this equalization argument handicapped appellant. As appellant points out, Jackson’s equalization argument also required his not putting on evidence of mitigating circumstances on appellant’s behalf, because “any of the testimony concerning what appeared to be her lesser role by necessity elevated her co-defendant’s role.”
While the majority finds the equalizing effect of these decisions to be compatible with Jackson’s joint defense strategy, I find them to be blatant examples of Jackson’s sacrifice of appellant’s interests to his own interest in maintaining dual representation, and to WheatfaU’s interest in having appellant presented as the main actor, thus deserving of a sentence at least as long as Wheatfall’s.
I would hold that Jackson’s conflict of interest denied appellant her right to effective representation at the punishment phase as well as at the trial stage.
Failure to Investigate
Appellant also argues that she was denied effective assistance of counsel at both the trial and the punishment stages by Jackson’s failure to investigate and present a mere presence defense, and by his failure to investigate and present mitigating evidence on her behalf.
To show ineffective assistance of counsel in general (as opposed to ineffective counsel due to a conflict of interest), an appellant must demonstrate that (1) counsel’s representation fell below an objective standard of reasonableness based on prevailing professional norms, and (2) but for counsel’s errors, there is a reasonable probability the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. at 2064-65, 2068; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). The two-pronged test for ineffective assistance of counsel set out in Strickland applies to sentencing proceedings. Wiggins v. Smith, 539 U.S. 510, 517, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Hernandez v. State, 726 S.W.2d at 57. A “reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Wiggins, 539 U.S. at 523, 123 S.Ct. at 2542; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998). The appellant must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail. Wiggins, 539 U.S. at 523, 123 S.Ct. at *3322535; Strickland, 466 U.S. at 700, 104 S.Ct. at 2071; Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001).
Counsel’s strategic choices made after a thorough investigation of the law and the facts relevant to plausible options are “virtually unchallengeable” on a claim of ineffective assistance of counsel. Wiggins, 539 U.S. at 517, 123 S.Ct. at 2535 (quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2066). However, we must define the deference owed to allegedly strategic judgments in terms of the adequacy of the investigations supporting those judgments. Id. Counsel’s “ ‘strategic choices made after a less than complete investigation are considered reasonable’ only to the extent that ‘reasonable professional, judgments support the limitations on investigation.’ ” Id. Thus, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id.
A failure to uncover and present mitigating evidence cannot be justified as a tactical decision when defense counsel has “not ‘fulfill[ed][his] obligation to conduct a thorough investigation of the defendant’s background.’” Id. (quoting Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389); see also (Ex Parte Duffy, 607 S.W.2d 507, 526 (Tex.Crim.App.1980) noting it may not be argued that a given course of conduct is within the realm of trial strategy unless and until the trial attorney has conducted the necessary legal and factual investigation that would enable him to make an informed, rational decision), overruled on other grounds by Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim.App.1999); see also Rivera v. State, 123 S.W.3d 21, 31 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Thus, to prevail on a claim that counsel was ineffective because of a failure to investigate, a defendant must show both that his counsel’s failure to investigate was unreasonable and that, had counsel performed his duty, there is a reasonable probability that the outcome of the proceeding would have been different.
It is an appellant’s burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813; Jackson, 973 S.W.2d at 956; McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992). To determine whether counsel’s failure to investigate and present evidence on his client’s behalf violates an appellant’s Sixth Amendment right to reasonably effective representation, a court must evaluate the evidence presented originally at trial, together with the totality of the omitted evidence in the post-conviction record, to determine whether the entire record, viewed as a whole, raises “ ‘a reasonable probability that the result of the ... proceeding would have been different’ if competent counsel had presented and explained the significance of all the available evidence.” Williams v. Taylor, 529 U.S. 362, 399, 120 S.Ct. 1495, 1516, 146 L.Ed.2d 389 (2000) (sentencing proceeding); see also Wiggins, 539 U.S. at 523, 123 S.Ct. at 2542 (in reaching conclusion whether jury would have returned with different sentence had it been confronted with mitigating evidence, “we evaluate the totality of the evidence — ‘both that adduced at trial, and the evidence adduced in the habeas proceeding[s]’") (quoting Williams, 529 U.S. at 397-98, 120 S.Ct. at 1495) (emphasis added in Wiggins); Ex parte Torres, 943 S.W.2d 469, 475 (1997) (same).
The Court of Criminal Appeals explained the rationale for the totality of the evidence review in Ex Parte Torres:
In most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim. Ex Parte Duffy, 607 S.W.2d 507, 512-13 (Tex.Crim. *333App.1980). See also Jackson v. State, 877 S.W.2d 768, 772-78 (Tex.Crim.App.1994) (Baird, J. concurring); Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App.1992) (Benavides, J. dissenting). Moreover, the inadequacy of the appellate record in these situations is due to the inherent nature of most ineffective assistance claims. The very ineffectiveness claimed may prevent the record from containing the information necessary to substantiate such a claim. Duffy, 607 S.W.2d at 513. Moreover, the trial record ordinarily does not reflect counsel’s reasons for doing or failing to do actions of which the defendant complains. Vasquez, 830 S.W.2d at 951. While expansion of the record may be accomplished in a motion for new trial, that vehicle is often inadequate because of time constraints and because the trial record has generally not been transcribed at this point. Jackson, 877 S.W.2d at 772 n. 3. Further, mounting an ineffective assistance attack in a motion for new trial is inherently unlikely if trial counsel remains counsel during the time required to file such a motion.
943 S.W.2d at 475 (emphasis added); see also Ex parte Nailor, No. 1109-03, 2004 WL 574634 (Tex.Crim.App. Mar.24, 2004).
The majority opines that, apart from the testimony appellant presented at the motion-for-new-trial hearing, there is no record support for appellant’s arguments that trial counsel failed to investigate or present available evidence on behalf of appellant, and it concludes that a trial court is under no obligation to accept as true even unrebutted testimony offered at a hearing on a motion for new trial. Therefore, since the trial court did not grant appellant a new trial, we must defer to the trial court’s judgment that a new trial was not warranted because of ineffective assistance of counsel. I respectfully disagree.
The trial record reflects multiple breaches of appellant’s trial counsel’s duty to represent appellant’s individual interests through the failure to control prejudicial evidence. It also omits the evidence supporting appellant’s mere presence defense and her mitigation evidence; indeed, the development of such evidence was incompatible with the joint defense strategy mandated by Jackson’s conflict of interest. As a result, this evidence was not presented until the motion-for-new-trial hearing. In other words, just as the Torres court foretold, the very ineffectiveness claimed by appellant — her trial counsel’s conflict of interest and failure to investigate — prevented the record from containing all the information necessary to substantiate appellant’s claims that she had a mere presence defense and mitigating factors that weighed in her favor. However, unlike in Torres, appellant did replace her trial counsel with new counsel in time to file a motion for new trial and obtain an eviden-tiary hearing, at which she presented the evidence necessary to substantiate her ineffective assistance of counsel claims.
Our task in evaluating ineffective assistance of counsel under Strickland is not, in my view, to review the trial court’s decision in post-conviction proceedings for abuse of discretion; it is to evaluate the totality of the evidence presented both at trial and in those post-conviction proceedings, as Williams, Wiggins, and Torres require. That the trial court denied the motion for new trial is thus irrelevant to our obligation to consider the totality of the evidence relevant to appellant’s ineffective assistance claims adduced both at trial and in the healing on her motion for new trial. See Nailor, 2004 WL 574634 (holding that direct appeal record adequate to address four allegations of ineffective assistance of trial counsel alleged by new counsel at evidentiary hearing on *334motion for new trial, but not five additional allegations; appellant properly developed habeas record with respect to original allegations and one new allegation).
Moreover, the majority’s statement that the decision whether to present witnesses is largely a matter of trial strategy, again begs the very question we are required to answer: Does Jackson’s failure to investigate and present evidence of a mere presence defense or evidence of mitigating circumstances on appellant’s behalf represent “a reasonable decision that makes particular investigations unnecessary,” as Strickland and Wiggins require, or does his failure to investigate and present evidence fall below an objective standard of reasonableness based on prevailing professional norms? I do not believe the standard of proof of Strickland’s first prong permits us to attribute the deficiencies in Jackson’s performance speculatively to trial strategy, particularly when those differences are equally attributable to a conflict of interest and the totality of the evidence support the latter attribution, not the first.
At the hearing held on her motion for new trial, appellant presented evidence both that she had a viable mere presence defense, which Jackson refused to consider and failed to present, and that she had attempted to get Jackson to investigate her case and to present mitigating evidence, but that he refused. Appellant testified that Jackson did not visit her in jail or talk to her about her case. Jackson’s lack of interest in appellant was further confirmed by the testimony of appellant’s parole officer, her mother, and a friend, all of whom proffered their testimony at the hearing on the motion for new trial.
In support of her claim that she had a viable mere presence defense, appellant testified that the cocaine was found in her apartment where she was living with her co-defendant. She testified that the cocaine was not hers, but she knew that it was there because she knew Wheatfall was selling drugs. She said that she and her children had been to the beach on the day in question and had only been home for a short while when Sadler entered her apartment. Appellant testified that she told Jackson that the cocaine was not hers, and that it belonged to Wheatfall, but Jackson was not interested and did not tell her she had a possible mere presence defense. Appellant testified that she was trying to get out of the relationship with Wheatfall, and, at the time of her arrest, she had rented another apartment. She gave a copy of the lease to the new apartment to Jackson.
Appellant also proffered witnesses who provided testimony relevant to mitigation of appellant’s punishment — all of whom testified Jackson failed to contact them. Appellant’s parole officer, Frederick Manuel, testified that appellant had previously been in prison for possession of cocaine, but had been on parole since her release. He testified that appellant had passed all three of her random urinalyses while on parole, and that, other than the incident in question, she had not been in any trouble. Manuel further testified that appellant had a positive attitude; he noted that her work was spotty, probably because of “the difficulty of working and taking care of five children.” Manuel did not remember if Jackson ever tried to contact him, but he was positive that he never talked to Jackson.
Eddie McKinney, appellant’s mother, testified that Jackson never contacted her, and she tried to contact Jackson, but he never returned her calls. McKinney would have testified at trial that appellant was trying hard to keep her family intact by working and by trying to get into a new apartment, away from Wheatfall. ■
*335Appellant also proffered the testimony of Barbara Moles, a Mend of appellant. Moles testified that she sensed that drug trafficking was taking place at the apartment because of people coming to and going from the apartment or waiting for Wheatfall. She had tried to contact Jackson on multiple occasions and was successful only because of her persistence. Nevertheless, Jackson did not call Moles to testify at appellant’s trial or sentencing.
I would conclude, on the basis of the totality of the evidence, including the evidence adduced at trial and at the hearing on appellant’s motion for new trial, that the limitations on Jackson’s investigation and presentation of evidence on appellant’s behalf were not supported by reasonable professional judgment. See Wiggins, 539 U.S. at 523-24, 123 S.Ct. at 2542-43; Williams, 529 U.S. at 395-96, 120 S.Ct. at 1514-15. These limitations were, instead, dictated by Jackson’s conflict of interest, which prevented him from representing appellant’s interests at both the guilt/innocence and the punishment phases and made any investigation of facts that bene-fitted her superfluous. I would hold that appellant carried her burden under the first prong of Strickland.
To prevail under Strickland, however, an appellant must also show that, but for counsel’s errors, there is a reasonable probability the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. To determine whether there is a reasonable probability that the result of the proceeding would have been different if competent counsel had investigated appellant’s potential mere presence defense and mitigating circumstances and had presented and explained the significance of all the available evidence on her behalf, we must again evaluate the totality of the evidence adduced at trial and in appellant’s motion for new trial. See Wiggins, 539 U.S. at 524, 123 S.Ct. at 2543; Williams, 529 U.S. at 396, 399,120 S.Ct. at 1515,1516.
Here, in my view, the evidence of appellant’s defenses and mitigating circumstances is sufficient to demonstrate a reasonable probability that the result of the trial and punishment phase would have been different if Jackson had not violated his professional duties. See Wiggins, 539 U.S. at 524, 123 S.Ct. at 2543 (“Had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.”); Williams, 529 U.S. at 399, 120 S.Ct. at 1516 (“The entire postconviction record, viewed as a whole and cumulative of mitigation evidence presented originally, raised ‘a reasonable probability that the result of the sentencing proceeding would have been different’ if competent counsel had presented and explained the significance of all the available evidence.”).
I would hold that appellant was deprived of her constitutional right to effective representation not only under Cuyler and Monreal, by Jackson’s conflict of interest, but also under Strickland and Wiggins, by Jackson’s failure to investigate and present evidence competently on her behalf. I would sustain both of appellant’s points of error.
Waiver
The State has argued that appellant waived her right to conflict-free counsel. The right to conflict-free counsel may be waived, but for that waiver to be effective, the record must show that the waiver was made knowingly, intelligently, and voluntarily. Ramirez, 13 S.W.3d at 487 (citing United States v. Greig, 967 F.2d 1018, 1021 (5th Cir.1992)); Ex parte Prejean, 625 S.W.2d 731, 733 (Tex.Crim.App.1981). A trial court does not always have an affir*336mative duty to inquire into the possibility of a conflict of interest; it does have a duty to conduct a hearing once it has been alerted, and when it knows or should know, of an actual conflict of interest. See Ramirez, 13 S.W.3d at 487 (citing Greig, 967 F.2d at 1022); Garza v. State, 721 S.W.2d 582, 585 , (Tex.App.-Houston [1st Dist.] 1986, no pet.). To establish waiver on the record, the trial court must hold a hearing to determine if the defendant knowingly, intelligently, and voluntarily waived his right to conflict-free counsel. United States v. Garcia, 517 F.2d 272, 277 (5th Cir.1975). The purpose of a Garcia hearing is to ensure that the defendant (1) is aware that a conflict of interest exists; (2) realizes the potential hazards to his defense by continuing with such counsel under the onus of the conflict; and (3) is aware of his right to obtain other counsel. Greig, 967 F.2d at 1022.
The trial court in this case did not hold a Garcia hearing. The only reference to the dual representation occurred before voir dire, when the following exchange took place between the court and the defendants:
THE COURT: Before we get started I just need to be sure that there is no conflict among ... Mr. Wheatfall and Miss Gaston, concerning Mr. Jackson representing both of you-all?
You are shaking your heads. I need to hear your answers.
WHEATFALL: No, ma’am.
GASTON: No, ma’am.
THE COURT: Mr. Jackson made the same representation to me. I am sure you-all are comfortable having the same lawyer representing you. I don’t see any apparent conflict among yourselves with one attorney representing you.
In other words, he is not going to have to sacrifice the defense for one to make up a defense for the other?
WHEATFALL: No, ma’am.
GASTON: No, ma’am.
THE COURT: Okay. You are comforta- ■ ble?
WHEATFALL: (Nods.)
GASTON: Yes, ma’am.
This interchange between the trial court, appellant, and Wheatfall satisfied none of the factors set out in Greig and did not constitute a proper hearing under Garcia. See Greig, 967 F.2d at 1022; Garcia, 517 F.2d at 277. The record, therefore, does not reflect that appellant knowingly and intelligently waived her right to effective counsel. I would hold, therefore, that the right was not waived.
Conclusion
I agree with the concurrence that, to avoid the expense of fruitless trials with conflicted counsel, Texas law should require the same pretrial inquiry regarding dual representation by counsel that is required by federal law. However, I disagree with the conclusion of both the majority and the concurrence that this case is not reversible for ineffective assistance of counsel under current Texas law. I believe that Gaston has carried her burden under Cuyler and Monreal by showing by specific references to the record that her counsel, Jackson, was burdened by an actual conflict of interest and that the conflict had an adverse effect on specific instances of her counsel’s performance. I further believe that she has borne her burden of showing that her counsel’s failure to investigate and present evidence on her behalf violated her Sixth Amendment right to reasonably effective representation under the standard set out in Strickland, Wiggins, and Ex Parte Torres.
*337I would reverse the judgment of the trial court and remand the cause for a new trial.
. At voir dire, the State emphasized the distinction between indictment for possession of a controlled substance with intent to deliver and mere possession and pointed out that there were two separate cases with two separate defendants charged with two separate offenses, one for possession of cocaine (Wheatfall) and the other for possession with intent to deliver (appellant). Jackson conducted no voir dire on the differences be*328tween the charges against his two clients, or the effect these differences might have on the jury's willingness to convict, or the punishment the jurors would be willing to consider under particular circumstances.
. The State’s toxicologist, whom the State called to testify only as its next-to-last witness at trial, testified that, with the exception of the six hydrocodone pills in a pill bottle with a scratched-off label, for which appellant had failed to produce a prescription, the pills were not controlled substances, but over-the-counter medications.
. The following example of the testimony is illustrative:
DEFENSE: You know Nathan Spinks?
OFFICER: No, sir, I don't know him.
DEFENSE: You know Mrs. Gaston is his mother?
OFFICER: Yes, sir, I know Miss Gaston.
DEFENSE: And how many — and how long have you known Ms. Gaston?
OFFICER: Probably four years, four and a half years.
DEFENSE: Four years. And you have been around her on three, four, five, six, seven occasions?
OFFICER: About—
DEFENSE: How many?
OFFICER: I couldn’t tell you how many occasions. She hasn’t — she hasn’t really been back that long at this point. So, I mean, I don’t know how many occasions I have been with — I have seen her in several parts of town and contacted her in different places.
DEFENSE: You had contact with her in 2000, right?
OFFICER: Yes, sir.
DEFENSE: At a motel?
OFFICER: Yes, sir.
DEFENSE: Any you went in to her motel room and searched; didn’t you?
OFFICER: No, I did not
DEFENSE: You came into her apartment in February, 2001, right?
OFFICER: No, sir.
DEFENSE: And you searched her apartment then; right?
OFFICER: I had no knowledge she lived at 701 Preston, sir.
. To convict an accused of unlawful possession of a controlled substance, the State must prove that the accused (1) exercised care, custody, control, or management over the contraband and (2) knew the matter was contraband. Gilbert v. State, 874 S.W.2d 290, 297 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Mere presence in a location where narcotics are possessed does not necessarily establish possession; rather, evidence of knowledge of the contraband and control over the contraband must affirmatively link the accused to the contraband. Id.