AFFIRM; and Opinion Filed February 25, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00212-CR
No. 05-14-00213-CR
JOE POLANCO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 401-81063-2011, 401-80435-2012
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Brown
Opinion by Justice Fillmore
Joe Polanco appeals from his convictions for assault and insurance fraud. In a single
issue, Polanco contends he received ineffective assistance of counsel. We affirm the trial court’s
judgments.
In cause no. 05-14-00212-CR, Polanco was indicted for aggravated assault with a deadly
weapon. Polanco waived a jury and pleaded guilty to the lesser-included offense of assault
causing bodily injury. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2014). Pursuant
to a plea agreement, the trial court deferred adjudicating guilt, placed Polanco on community
supervision for two years, and assessed a $750 fine.
In cause no. 05-14-00213-CR, Polanco waived a jury and pleaded guilty to insurance
fraud. See TEX. PENAL CODE ANN. § 35.02(a), (c)(4) (West 2011). Pursuant to a plea agreement,
the trial court assessed punishment at two years’ confinement in state jail, probated for two
years, and a $500 fine.
The State later filed a petition to adjudicate and a motion to revoke, alleging Polanco
violated fourteen conditions of his community supervision. In a hearing on the motions, the
State abandoned three of the allegations, and Polanco pleaded true to the remaining eleven
allegations. The trial court found the allegations true, adjudicated Polanco guilty of assault, and
revoked Polanco’s community supervision in the insurance fraud case. The trial court assessed
punishment at one year’s confinement in the county jail on the assault conviction and two years’
confinement in state jail on the insurance fraud conviction.
Polanco contends he did not receive effective assistance of counsel at the
adjudication/revocation hearing because counsel failed to investigate the charges against him,
and counsel failed to fully prepare for the hearing. Polanco asserts that had counsel prepared
appropriately, he would have received a positive outcome. The State responds that Polanco has
offered no evidence that trial counsel was ineffective, nor has Polanco rebutted the presumption
of sound trial strategy.
To prevail on a claim of ineffective assistance of counsel, Polanco must show that
counsel’s representation fell below an objective standard of reasonableness and there is a
reasonable probability the results of the proceedings would have been different in the absence of
counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002). Polanco has the burden of proving ineffective
assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813
-2-
(Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or
sufficient prejudice defeats an ineffective assistance claim. See Andrews v. State, 159 S.W.3d 98,
101 (Tex. Crim. App. 2005).
An ineffective assistance claim must be “firmly founded in the record,” and the record
must affirmatively demonstrate the claim has merit. Menefield v. State, 363 S.W.3d 591, 592
(Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 391, 392 (Tex. Crim. App. 2005). In
most cases, a silent record that provides no explanation for counsel’s actions will not overcome
the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110–11
(Tex. Crim. App. 2003). Direct appeal is usually an inadequate vehicle for raising an ineffective
assistance claim because the record is generally undeveloped. Menefield, 363 S.W.3d at 592–93.
Counsel should ordinarily be afforded an opportunity to explain his actions before being denounced
as ineffective. Id. at 593.
Although Polanco filed a motion for new trial in each case, he did not assert his counsel had
been ineffective. Accordingly, trial counsel did not have an opportunity to explain himself in the
trial court and we cannot determine from this record why he conducted Polanco’s defense the
way he did. See Menefield, 363 S.W.3d at 593; Goodspeed, 187 S.W.3d at 392. Because there is
no evidence in the record concerning trial counsel’s actions, Polanco has not overcome the
strong presumption of reasonable assistance and has not established trial counsel’s conduct was
so outrageous that no competent attorney would have engaged in it. See Rylander, 101 S.W.3d
at 110–11.
Further, on this record, Polanco has failed to establish he was prejudiced by the alleged
error. Trial counsel called two witnesses to testify on Polanco’s behalf, and during his closing
arguments, counsel advocated that the trial court allow Polanco to start his probationary period
over. Nothing in the record supports Polanco’s position that counsel did not prepare for the
-3-
adjudication/revocation hearing. We conclude Polanco has not met his burden of proving by a
preponderance of the evidence that counsel was ineffective. See Freeman v. State, 125 S.W.3d
505, 506–07 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. We overrule Polanco’s sole
issue.
We affirm the trial court’s judgments.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140212F.U05
-4-
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOE POLANCO, Appellant Appeal from the 401st Judicial District
Court of Collin County, Texas (Tr.Ct.No.
No. 05-14-00212-CR V. 401-81063-2011).
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices Bridges and Brown participating.
Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is
AFFIRMED.
Judgment entered February 25, 2015.
-5-
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOE POLANCO, Appellant Appeal from the 401st Judicial District
Court of Collin County, Texas (Tr.Ct.No.
No. 05-14-00213-CR V. 401-80435-2012).
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices Bridges and Brown participating.
Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Judgment entered February 25, 2015.
-6-
Joe Polanco v. State
Combined Opinion