dissenting.
To show ineffective assistance of counsel, appellant must demonstrate that (1) counsel’s representation fell below an objective standard of reasonableness under 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 v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986).
On the morning of appellant’s trial, the State made a deal with Havard, who agreed to plead guilty to both offenses and testify against appellant in exchange for concurrent one-year sentences. To seal its deal, the State required Havard to state in a pretrial hearing, under oath, what his testimony would be:
Q: (By the prosecutor) And in exchange for your testimony against Mr. McKinny, you have been given the offer of one year stay in jail and both cases to run concurrently; is that correct?
Yes, sir. >
In [sic] the testimony that you intend to offer at today’s trial, is that you had picked up Mr. McKinny and the two of you — you had asked him if you were — if he wanted to make some money and he said yes. The two of you then proceeded to take two water pumps from a location in Harris County, put them in the back of the truck with the intent of pawning them and you using Mr. McKinny’s ID because you did not have one; is that correct? <©
Yes. <¡
Is that what your testimony will be today? o*
Yes. <i
When you testify? <y
Yes.... <j
Is there anything else you wish to add about your involvement with Mr. McKinny with regards to the pumps? &
I drove towards the metal container that the pumps were in and I seen the pumps in the container. I couldn’t lift them by myself so I went looking for the first person I seen and he just happened to be walking down the street there. I pulled over and asked him if he wanted to make some money. He said yes. He needed a ride and I told him I’d give him a ride and he got in. I pulled up towards the pumps were just a few hundred yards down the road. I pulled up, we put the pump in the truck and then when I was pulling out, it wasn’t but right down the street, I got pulled over.
*480Q: (By the Court, to Havard) Where does the car theft come in?
A: It was a separate offense from earlier, happened about a month prior to this particular date.
Q: How did you all steal the car?
A: The car. The car I was driving was stolen.
Q: Did he [appellant] know that?
A: I didn’t tell him. I didn’t ask so I mean.
Q: Did he know the pumps were stolen?
A: I didn’t tell him and he didn’t ask but you know—
Q: (By the Court, to the prosecutor) So how are you all, [the State] going to prove that he’s guilty?
A: (By the prosecutor) You still want this on the record?
Q: Yeah. What’s the evidence that he’s [appellant’s] guilty?
A: He [Havard] had given several incriminating statements. His [Ha-vard’s] statement did not match with this particular story as to where the property came from.
Thus, the trial judge realized that Ha-vard’s testimony put appellant at the crime scene loading the pumps, but that testimony did not show that appellant did so knowingly. In response to the judge’s question asking how the State would prove appellant guilty, the prosecutor stated he would rely on Havard’s prior inconsistent hearsay statements to prove appellant’s guilt. Even though the law does not allow that, appellant’s attorney allowed it, and that is exactly what the prosecutor did.
At trial, the State called Havard, who testified that he and appellant had loaded the pumps. Havard did not then mention the part of his pretrial testimony that favored appellant, i.e., that Havard had approached appellant on the street and offered appellant money to load the pumps, without telling appellant that the truck was stolen and the pumps were being stolen. Although the State had elicited that testimony from Havard outside the jury’s presence only minutes before, the State never presented it to the jury. Instead, the State asked Havard about his written statement to police when arrested. The State asked Havard for the “high points” of that statement, and he testified:
On that particular one, I think I showed that I got two black guys to — they picked me up at some store and got me to go help them steal some stuff. Now let’s see. I got them to pick me up at the store and we went to the place to get the water pump and then they showed me where it was and they wanted me to drive. I think that’s what I said.
(Emphasis added.)
Defense counsel made no objection (except “leading”) to this testimony. He did not object to hearsay, nor did he object that the prior statement was not admissible to impeach Havard because Havard had not testified to the contrary. Both objections would have been meritorious.1 Later, when the State offered into evidence this entire statement (State’s exhibit 5), defense counsel again failed to object.
*481Defense counsel then cross-examined Havard and brought out the testimony— favorable to appellant — that Havard had promised the State in exchange for his plea agreement; defense counsel failed, however, to tell the jury that the State had just induced this exculpatory testimony from Havard:
Q: (By Mr. Broussard) Let’s go back to what happened before you and Mr. McKinny went to this container. You gave — you picked Mr. McKinny up, didn’t you?
A: Yes.
Q: You were driving the truck that was supposedly stolen?
A: Yes, sir.
Q: And where did you pick up Mr. McKinny?
A: On JFK. He was hitchhiking.
Q: Okay. Why did you pick him up, because he was hitchhiking?
A: Because I needed somebody to help me lift the water pumps because they were too heavy for me to lift by myself.
Q: So when you picked him up did you ask him to help you?
A: I asked him if he wanted to make a few dollars, some money and he said he needed a ride. I told him to get in.
Q: Okay. And did you proceed from that point to where the container was?
A: Yes, sir.
Q: You asked him to get out and help you load those?
A: Yes, sir.
Q: Did you tell him that these weren’t your pumps?
A: I didn’t make a statement either way. I didn’t say yes, I didn’t say no.
Q: You didn’t tell him “we’re stealing these pumps, they’re not mine”?
A: No, sir.
Q: You just asked him to help you load them?
A: Yes, sir.
Q: How long did it take ya’ll to load the pumps?
A: Probably one minute or so, maybe two minutes at the most. I mean, they were pretty simple to load up. I mean, the hardest thing is just getting out of the truck walking back there and reaching down, you know, and picking them up. They’re not all that heavy, just takes two people. And then sitting them in the back of the truck, closing the door and then getting back in the truck and driving off, probably two minutes.
Q: You never met Mr. McKinny before that, did you?
A: No, sir. No.
Thus,
1. The State, as a condition of its plea bargain offer to Havard, created testimony favorable to appellant, but never presented that testimony to the jury. Instead, the State had Havard testify (without defense objection) about State’s exhibit 5, Ha-vard’s unsworn hearsay statement made shortly after his arrest that appellant had instigated the crime while Havard innocently participated;
2. Appellant’s attorneys then brought out Havard’s favorable testimony, but they never informed the jury that, in a pretrial hearing outside the jury’s presence only minutes before, the State (a) had bargained for that very testimony, (b) had promised leniency to a repeat felony of*482fender to get it, and (c) had presented it, under Havard’s oath, to the Court at the pretrial hearing as though it were the truth; and
3. The State then spent most of the rest of the trial presenting Havard’s multiple pretrial statements that appellant had picked him up in a stolen truck and offered him money to load the pumps, while Havard never knew the truck or the pumps were stolen. The State did this even though Havard’s trial testimony never varied materially from what he had promised the State he would give. By this strategem, the State was able to try almost the entire case on hearsay evidence, all or most of which would not have been admissible except to impeach the “false” version the State had bargained for outside the jury’s presence just before trial.2
Appellant’s attorneys never objected to the State’s using leniency to induce what the State itself called perjured testimony and then avoiding hearsay rules by “impeaching” that testimony. They never tried to blunt the State’s attack on Havard by telling the jury of the State’s role in creating the very testimony the State was now impeaching. They never objected that State’s exhibit 5 was hearsay. See Tex.R. Evid. 801(e)(1)(A). And they never asked for a jury instruction that Havard’s prior inconsistent statements were not evidence of appellant’s guilt, but were instead admitted only for the limited purpose of impeaching Havard. See Contreras v. State, 766 S.W.2d 891, 892-93 (Tex.App.-San Antonio 1989, no pet.) (reversing for failure to give such instruction).
For example, the State called Officer Bray to impeach Havard on how many pre-trial statements he had made to the police. The judge ruled that the State could impeach Havard if he had misstated the number of statements he had given, but the State could not go into the contents of any omitted statement. Despite this ruling, the State offered the contents of Havard’s statement to Bray, which incriminated appellant, and appellant’s attorneys did not object to that as hearsay or request a limiting instruction regarding impeachment.
The State next called Officer Cire, who presented State’s exhibit 5, Havard’s written statement, a damning piece of unsworn hearsay that came in without objection or limitation and that the jury requested during deliberations. Cire read Havard’s statement as follows:
A: Read the best I can. “1 p.m. I [Ha-vard] was at 59 and Laura Koppe sleeping under a bridge. I woke up and was walking to the store to bum something to eat. Two black males pulled up and asked me if I wanted to go make some money. I said yes. I got in the truck and we went to the store. I was brought two sandwiches and a bag of chips, a Coke. We left and we went to a house. The man driving got out and five minutes later he returned. We went back to the store, the driver left in a white car. And I was told — then I was asked to drive because the other one did not know how to drive a standard. I did. I was told where to go and then we pulled up in front of a railroad box car on the ground is what it said *483and we loaded up the two water pumps. We left and I was pulled over.”
Officer Cire testified that Havard’s statement “reflected the discussion that Cire had with Mr. McKinny,” but Cire later said the statement was different. Appellant was in custody when he spoke with Cire, and appellant’s statement was not recorded or in writing, but appellant’s attorneys made no objection to Cire’s testimony about his custodial interrogation of appellant. Such testimony was inadmissible. See Tex.Code Ceim. PROC. Ann. art. 38.22, § 3 (Vernon 1979). Nor did they object that Havard’s statement (State’s exhibit 5), which was read verbatim by Cire, admitted in evidence as a physical exhibit, and requested by the jury during deliberations, should be excluded because Havard had already admitted having made the statement.3
Next came Officer Dunn, who testified to more hearsay. Dunn testified he took Havard’s oral statement and it was consistent with State’s exhibit 5, Havard’s written statement. This further implicated appellant, but, again, his attorneys did not object to hearsay or request a limiting instruction. The State later argued to the jury that this testimony by Dunn showed the reliability of Havard’s statements in State’s exhibit 5.
At this point, Havard was recalled by the State and again testified as he had promised the State in exchange for his guilty plea. Again he was impeached, again without objection, again without limiting instruction, again without the jury being informed of the State’s connection to this testimony.
The Court of Criminal Appeals and almost all federal courts of appeals have held that “impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.” Hughes v. State, 4 S.W.3d, 1, 4 & nn. 4, 7 (Tex.Crim.App.1999) (collecting federal cases).4 That is what happened here. Appellant’s counsel allowed it to happen by (1) not objecting to hearsay, or, as in the federal cases, to the abuse of Rule 607 regarding impeachment of one’s own witness, or, as in Hughes, based on Rule 403; (2) not requesting a limiting instruction; and (3) not revealing the State’s role in creating Havard’s testimony.
There is more. Appellant’s attorneys did not object when the State argued to the jury that appellant was guilty because he refused to confess in writing:
Now, as far as the culpability of Mr. McKinny is concerned defense has brought up one other argument that you need to concern yourself with. What about the statement that you didn’t hear that he made to Officer Cire. He was willing to spill his guts to Officer Cire but he wouldn’t put anything down on paper. And when he did spill his guts it didn’t match any of the stories that Mr. *484Havard told. Ask yourself that question. Is he as innocent as he’s claiming he is when he’s willing to spill his guts, but when it comes down to putting pen to paper he won’t do it. Is that because he knew he’d be caught in his own lies and that’s why he believes with his buddy getting up there crucifying himself he’d be getting off? Don’t be getting off that easy. He’s insulted you and insulted this Court with his own lack of writing and he’s done it with his buddy to do the same thing in here.
(Emphasis supplied.)
In this state and country, a defendant does not have to confess. His refusal to do so is not evidence of guilt. See United States v. Rodriguez, 260 F.3d 416, 420-21 (5th Cir.2001).
Nor did defense counsel object when the State twice argued to the jury that appellant knew the pump was stolen because he knew that Havard was taking it to a pawnshop. In fact, there was no such evidence.
There are more ways in which counsel’s performance weakens our confidence in the outcome of this case. See Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2064-65, 2068. The pump’s owner was asked one question by the State about value, whether he had “any idea” of the pump’s value. He testified that it was worth “approximately” $1,700. On cross-examination, he testified the pump was a year old and had been in industrial use in his business. No evidence showed whether “approximately $1,700” was the amount paid to purchase the pump new, the amount necessary to replace the pump new, or the pump’s “fair market value [as used equipment, the correct value required by law] at the time and place of the offense.” See Tex. Pen.Code Ann. § 31.08(a)(1) (Vernon 1994). A value of “approximately $1,700” implies a range of value below $1,700, which is close to the $1,500 minimum amount the State had to prove in order to prove a felony offense. See Tex. Pen.Code Ann. § 31.03(e)(3) (Vernon Supp.2002) (theft of less than $1,500 is a class A misdemeanor). Defense counsel never cross-examined the owner about this nor presented their own expert, but that shows no deficiency because such witnesses might have opined that the pump’s fair market value on the date of the theft exceeded $1,500. That does not explain, however, why defense counsel did not point out that weakness in the State’s proof and argue that any pump purchased new for “approximately” $1,700 and used for a year for industrial purposes would have depreciated at least $200 in value. That argument could have benefitted appellant and almost certainly would not have hurt him. The failure to make it does not alone render counsel ineffective, but it strengthens our conclusion that counsel’s representation as a whole was far below what this Court should tolerate. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64 (“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”).
Another indication of counsel’s ineffectiveness was that in jury argument they attacked Mr. Havard’s credibility, but at trial they never sought an accomplice witness instruction. See Tex.Code CRiM. Proc. Ann. art 38.14 (Vernon 1979). Although defense counsel may have welcomed Ha-vard’s favorable testimony about appellant’s lack of intent to steal and thus not have wanted to weaken it with such an instruction, counsel’s jury argument that Havard could not keep his story straight and was a felon who would say anything to avoid responsibility belies that strategy and instead calls for such an instruction.
In this case, there was no motion for new trial hearing and thus no opportunity *485for defense counsel to explain their strategy for letting in all this inadmissible evidence and argument. No such hearing is needed, however, because no conceivable strategy could justify this performance. This court has held counsel ineffective for a single egregious error, even without a motion for new trial healing, when the error could not be justified by any conceivable strategy. Cooper v. State, 769 S.W.2d 301, 305 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd); Snow v. State, 697 S.W.2d 663, 667 (Tex.App.-Houston [1st Dist.] 1985, pet. dism’d); see also Valencia v. State, 966 S.W.2d 188, 191 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (counsel’s multiple errors required reversal despite lack of new trial hearing); Laurant v. State, 926 S.W.2d 782, 783 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (same). We have here far more than a single error. Here, we have multiple serious deficiencies from beginning to end.
The deficiency was harmful. This case was defensible. Havard’s testimony about appellant’s lack of knowledge of Havard’s intent to steal favored appellant, and that testimony would have seemed more persuasive if jurors had known the State’s role in creating it. If the jury had known the prosecutor was impeaching as “perjury” the very testimony he had induced minutes earlier by offering a “sweet deal,” the jurors may have doubted anything the prosecutor said. This was not a theft that occurred on a holiday, a weekend, or in the dark of night. It occurred at 2:00 p.m. on a regular business day. The pumps were loaded in two minutes or less from an unlocked container. No property was broken into to get them. Havard, although driving a stolen truck, was using a key and was wearing a shirt that bore the same logo as the truck. These facts supported appellant because they were consistent with appellant’s not knowing the truck was stolen or that the pumps did not belong to Havard. Indeed, the jury acquitted appellant of the truck theft, and in a competently defended case, there is a reasonable probability that it would have acquitted him of the pump theft. A “reasonable probability” of a different result is all that Strickland, requires, and a “reasonable probability” may be less than a preponderance of the evidence. See Strickland, 466 U.S. at 693-94, 104 S.Ct. at 2068. A “reasonable probability” does not mean “that counsel’s deficient conduct more likely than not altered the outcome in the case_” Rather, “the appropriate standard of review should be somewhat lower.” Id. “The result of the proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Id.
If this case had been properly tried, most of the State’s evidence would not have come in or would have been limited by instruction to impeachment of Havard, the State’s witness. Jurors could not have considered that impeachment testimony as substantive evidence.5 Jurors would have heard that appellant was a newly arrived hitchhiker who had helped the truck’s properly uniformed driver, a four-time felon who had stolen the truck and who had just gotten, in the prosecutor’s words in argument, a “sweet deal” from the State to commit what the prosecutor called perjury, to load a pump of questionable value.
I would sustain appellant’s third issue, reverse the judgment, and remand the cause.
. "A statement is not hearsay if: (1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: (A) inconsistent with the declarant's testimony, and was given under oath ... at a trial, hearing, or other proceeding ... in a criminal case, or in a deportation;_" Tex.R. Evid. 801(e)(1)(A) (emphasis added). Havard’s statement (State’s exhibit 5) was not under oath, was not inconsistent with any testimony Havard had then given in appellant’s trial, and was therefore hearsay.
. In jury argument, the State called Havard, its own witness, a liar. The prosecutor said that Havard perjured himself when he testified as he had promised the State in exchange for what the prosecutor called "a sweet deal.” The State should not be so proud of offering sweet deals to induce its witnesses to commit peijury.
. Tex.R. Evid. 613(a) governs the examination of witnesses concerning prior inconsistent statements and provides, "... if the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted_” Havard unequivocally admitted having made the statement; thus, given an objection under Rule 613(a), extrinsic evidence of the statement should not have been admitted.
. See also Adams v. State, 862 S.W.2d 139, 147-48 (Tex.App.-San Antonio 1993, pet. ref'd); Zule v. State, 802 S.W.2d 28, 34 (Tex.App.-Corpus Christi 1990, pet. ref'd); Pruitt v. State, 770 S.W.2d 909, 910-11 (Tex.App.-Fort Worth 1989, pet. ref'd); Contreras v. State, 766 S.W.2d 891, 892-93 (Tex.App.-San Antonio 1989, no pet.) (held, error not to give limiting instruction).
. And neither could we, which would have considerably strengthened appellant’s arguments that the evidence was legally and factually insufficient.