Nos. PD-0490 AND 0491-15
In the
Supreme Court of Texas
JOE POLANCO, Petitioner
vs.
THE STATE OF TEXAS, Respondent
On Appeal from the Court of Appeals Nos. 05-14-00212-CR and 05-14-00213-CR
Trial Court Cause Nos. 401-81063-2011, 401-80435-2012
PETITION FOR REVIEW
Joe Polanco, pro se
2309 Coolmist Creek
Little Elm, Texas 75069
Telephone: (972) 404-6818
COURT^&,?mis
MS 28 2015
^Mcosta, Cferk
IDENTITY OF THE PARTIES AND COUNSEL
1. Trial Judge: Honorable Mark Rusch presided over Cause Nos. 401 -81063-2011
and 401-80435-2012, 401st District Court, Collin County, 2100 Bloomdale Road,
McKinney, Texas 75071.
2. Petitioner: Joe Polanco, 1501 Jabbet, Piano, Texas 75025.
3. Counsel for Petitioner:
A. Micah Belden, 100 N. Travis Street #404, Sherman, Texas 75090.
B. The Petitioner is pro se for appeal.
4. Counsel for the Respondent, State of Texas:
A. The Respondent was represented by Assistant District Attorney, Greg Willis,
Collin County District Attorney's Office at the trial court level.
B. The Respondent is represented on appeal by and through Assistant District
Attorney, Greg Willis, Collin County District Attorney's Office and John R.
Rolater, Collin County District Attorney.
Page i.
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL i
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii
STATEMENT OF THE CASE 1
STATEMENT OF JURISDICTION 1
ISSUES PRESENTED 1
Issue 1: Negligence ruling 1
Issue 2: Allowed Respondent to file their brief untimely 2
STATEMENT OF FACTS 2,3,4
SUMMARY OF THE ARGUMENT 4
ARGUMENT 4,5,6
PRAYER 7
CERTIFICATE OF SERVICE 7
APPENDIX 7
Page ii.
INDEX OF AUTHORITIES
CASES
Ex parte Briggs, 187 S.W.3d 458 (Tex.Crim.App. 2005) 4
Hernandez vs. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) 6
Jackson v. State, 877 S.W.2d 770 (Tex. Crim. App. 1994) 5,6
Robinson v. State, 16 S.W.3d 808 (Tex. Crim. App. 200) 5
Strickland v. Washington, 466 U.S. 668(1984) 5,6
Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) 6
Weeks v. State, 894 S.W.2d 390 (Tex. App. Dallas 1994) 6
Ybarrav. State, 629 S.W.2d 943 (Tex. Crim. App.1982) 6
CONSTITUTIONAL PROVISIONS
Texas Const. Art 1, Section 10 5
U.S.C.A Const. Amend 6 5
Page iii.
STATEMENT OF THE CASE
Petitioner was charged by indictment with Assault Causing Bodily Injury and Insurance
Fraud between $1500.00 and $20,000.00 bearing case numbers: 401-81063-2011 and 401-80435-
2012 which was pending in the 401st District Court in Collin County, with the Honorable Mark
Rusch. On February 6, 2014, Petitioner entered an amended "true" plea in Cause No. 401-
81063-2011, and an amended "true" plea in Cause No. 401-80435-2012. Respondent was
ordered to serve a two year sentence in the state county jail for both cases to run concurrently.
(CR 51,57). Respondent timely filed a Motion for New Trial on February 25, 2014 in both cause
numbers. (CR 63).
This case was presented to the Fifth District of Texas in Dallas in the Court of Appeals.
The Petitioner was Joe Polanco, and the Respondent was the State of Texas. Justice Robert M.
Fillmore was the author of the Memorandum Opinion. The Court of Appeals affirmed the trial
court's judgments. A Motion for Rehearing was submitted, and denied.
STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to Section 22.001(a)(6) of the Texas Government
Code.
ISSUE PRESENTED
Issue 1: Negligence ruling
The court of appeals erred in affirming the trial court's judgments because Petitioner
believes that had he been afforded the opportunity for oral argument, the court of appeals would
have had the opportunity to listen to Petitioner' argument as to why he believes he had ineffective
counsel. The State in their brief indicated that Petitioner did not initially request oral argument.
Petitioner filed Motion for Oral Argument and it was denied.
-1-
Issue 2: Allowed Respondent to file their brief untimely
Further, the court of appeals erred in allowing the Respondent to submit an untimely brief
on January 28, 2015. Petitioner believes that the court was prejudice in allowing the Respondent
to submit an untimely brief yet Petitioner was required to submit his brief in a timely manner.
Granted that Petitioner did seek an extension of time to file his brief which was granted, but the
brief was filed on time.
STATEMENT OF FACTS
The court of appeals correctly stated the nature of this case which are two criminal cases
brought through the appeal process by Petitioner for relief of a reversal/trial.
I was incarcerated on a probation violation on 21 January 2014.1 was jailed with no bond,
the Honorable Mark Rusch ordered a speedy trial to dispose of my case. At the time of my arrest,
I was represented by Attorney Andrew Peveto. Due to his lack of communication and
accountability, he was fired.
Due to the fact that I was caught between a hard place and a rock(incarceration), as well as
time constraints, my fiancee, Davna Powell met and hired Micah Belden based on the fact that he
was an accredited attorney. He agreed to represent me for $3000.00
I appeared for trial on 06 February 2014. (CR 51,57). Prior to entering the courtroom I met
with Micah Belden at which time he advised, "you need to look at this from a business
standpoint, if you make the state prove their case, the judge will throw the book at you, but if you
plead true, I don't see him giving you more than a year, which is exactly what the state's
offering." I was not at all comfortable with pleading true to any of the accusations. My attorney
didn't contact my probation officer to verify my story, therefore, we were not at all prepared to
-2-
fight for justice. Whether we were ready for trial or not, the proceedings were going to take place.
I pled true as per Micah Belden, and the proceedings for sentencing followed immediately.
At this time, Mr. Belden's lack of professionalism, preparation, and knowledge of the case at
hand came to light. Mr. Belden's examination of key witnesses on my behalf proved to be a
farce. The fact that I was an alcoholic, which led to my probation violation was never introduced,
therefore, the Honorable Mark Rusch weighed absolutely nothing to impose the maximum
sentence of two(2) years state jail. (CR 51, 57).
To further insult Mr. Belden's character as well as his intellectual knowledge, we
immediately appealed the Honorable Mark Rusch's sentence, and appeal bond was set at
$1,500.00 and $40,000.00. Mr. Belden was ordered to draw up the paperwork for the Honorable
Mark Rusch's signature. Mr. Belden prepared the appeal documents for $10,000.00 and
$40,000.00 costing me an additional $850.00. (CR 63, 65).
The Honorable Mark Rusch emphasized how important it was to have an attorney to fight on
my behalf, fight for justice. Mr. Belden has proven his lack of knowledge in respect to the
judicial system. His ill advise has proven to be fatal to my career as well as my relationship with
my young daughter. An injustice has prevailed, incompetence has proven to be the difference
once again. Attorneys of this magnitude have absolutely no ethical values of which the judicial
system was originally founded upon.
Petitioner believes that his Counsel did not take the sufficient time to investigate the
charges and fully prepare for this matter. Therefore, Petitioner should be allowed to either have a
trial in this matter, or the sentences reversed.
On appeal, the Fifth District of Texas at Dallas Court of Appeals affirmed the decision of
the trial judge in a published Memorandum Opinion dated February 25, 2015. The court of
-3-
appeals concluded that Petitioner did not show that counsel's representation fell below the
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.
SUMMARY OF THE ARGUMENT
The court of appeals committed error when it affirmed the trial court's judgments in favor
of Respondent/Defendant. Petitioner believes that he has sufficient evidence to prove that his
attorney of record in the trial court failed to prepare adequately and sufficiently. The court
should grant review so that investigation of Petitioner's issue of ineffective counsel can be
afforded and the court be given the opportunity to reverse the trial court's judgments.
Had the attorney of record prepared and investigated the charges against Petitioner, the
outcome of the case would have been in favor of Petitioner. Counsel's performance was
woefully deficient. Consequently, Petitioner Polanco should be afforded a reversal/new
hearing/trial.
ARGUMENT
I. This Court should grant review to correct the trial court's erroneous judgment as
the Petitioner had ineffective counsel and had not investigated or prepared for the final
disposition on Petitioner's behalf.
An attorney engages in ineffective assistance of counsel wherein counsel's performance was
deficient, and that due to that deficiency, the matter was pursued with prejudice to the defense.
(CR 57). Exparte Briggs, 187 S.W.3d 458, 466 (Tex. Crim. App. 2005). Mr. Polanco's counsel
was woefully ineffective in representing Petitioner Polanco's best interests. Petitioner believes
that counsel did not fully prepare or investigate the charges against him. Had counsel prepared
-4-
appropriately, Petitioner would have received a positive outcome. (CR 51).
In general, a complaint of ineffective counsel should have been raised by the Petitioner
during the plea hearing in order for the matter to qualify for an appeal. (Tex. R. App. P. 33.1(a)).
However, in Robinson vs. State, 16 S.W.3d 808 (Tex. Crim. App. 2000), the Court of Criminal
Appeals held that ineffective assistance of counsel claim can be brought for the first time on
direct appeal if the record is sufficient to prove counsel's performance was deficient.
This exception applies if there was no realistic opportunity to raise the issue in the trial or in
a motion for new trial, (Id, 812-813). Further, "first", it is unrealistic to expect that the attorney
charged with ineffectiveness will subsequently realize all of his mistakes and be able to
adequately prosecute the claim. This is especially true in a case like the one at bar, where the
errors alleged are acts of omission," {Id. 812).
Article 1, Section 10 of the Constitution of the State of Texas, (Vernon's Ann. Texas
Const. Art. 1, § 10), and the Sixth Amendment of the Constitution of the United States,
(U.S.C.A. Const. Amend. 6), dictates that a criminal defendant has the right to representation of
counsel,
In interpreting what representation of counsel means, the United States Supreme Court held
that a person is entitled to effective assistance of counsel and the standard for ineffective
assistance of counsel was established in Strickland vs. Washington, 466 U.S. 668, 685-691
(1984).
"The proper standard for determining claims of ineffective assistance under the Sixth
Amendment is the standard adopted by *771 the United States Supreme Court in
Strickland. We adopted the Stricklandstandard in Hernandez vs. State, 726 S.W.2d 53
(Tex. Crim. App. 1986). In Strickland, the Supreme Court adopted a two-pronged
analysis for claims of ineffective assistance. Under the first prong, the defendant must
show that counsel's performance was deficient, to the extent that counsel failed to
function as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at
-5-
687, 104 S.Ct. at 2064. Under the second prong, the defendant must show that counsel's
deficient performance prejudiced the defense. Id. To show prejudice, "[t]he defendant
must show that there is a reasonable probability that, but for counsel's failure to
investigate defendant's case, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Id. at 694, 104 S.Ct. At 2068," Jackson vs. State, 877 S.W.2d 770, 771 (Tex.
Crim. App. 1994).
An Appellate Court does not inquire into trial strategy unless no possible basis in trial
strategy or tactics exists, Weeks vs. State, 894 S.W.2d 390, 391 (Tex.App. -Dallas 1994, no pet.).
"An Petitioner must establish that his counsel's acts or omissions were outside the range of
professional competence," Weeks at 391 citing Jackson at 771. "When a record clearly confirms
that no reasonable counsel could have made such trial counsel ineffective is not
speculation,"Weeks at 392 citing Vasquez vs. State, 830 S.W.2d 948, 950-951 (Tex. Crim. App.
1992)(per curium).
"A criminal defense lawyer must have a firm command of the facts of the case as well as
governing law before he can render reasonably effective assistance in or out of the courtroom,"
Ybarra vs. State, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).
Issue 2: Fifth Court of Appeals erred in that it allowed the Respondent to provide their
brief untimely
Petitioner filed an Amended Opening Brief for the Petitioner on September 17, 2014. The
Respondent submitted their brief on January 28, 2015 and it was untimely.
PRAYER
Petitioner prays that he be granted the relief he is requesting respectively.
Respectfully siibmitted
l:
Planc^ex3s 75025
Telephone-^72) 404-6818
CERTIFICATE OF MAILING
I HEREBY CERTIFY that a true and correct jztfpy ofThe^foregoing was mailed to
Greg Willis, Collin Coun^District Attorney, 21(fo Bloomdalelfoaad, Suite 20004, McKinney,
Texas 75071-8313 this c&fy"day of August, 201!
APPENDIX
1. A copy of the Judgment on the insurance fraud case;
2. A copy of the Judgment on the Assault Bodily Injury, A lesser included;
3. Judgment from the 5th District Court of Appeals in Cause No. 05-14-00212-CR;
4. Judgment from the 5th District Court of Appeals in Cause No. 05-14-00213-CR;
and
5. Memorandum Opinion from the 5th District Court of Appeals.
-7-
2/19/2014 9:13 AM SCANNED Page 1
Case No. 401-80435-2012 Count Single Incident No./TRN: 9161975338 TRS: A001
The State of Texas In The 401 ST Judicial
FILED IN
v. District Court 5th COURT OF APPEALS
DALLAS, TEXAS
JOEPOLANCO Collin County, Texa¥21/2014 10:23:44 AM
LISA MATZ
StateIDNo.:TX06620534 Clerk
Judgment Revoking Community Supervision
Date Judgment
JudgePresiding: Hon. MARK J. RUSCH 2/6/2014
Entered:
Attorney for
Attorney for State: ZEKE FORTENBERRY ANDREW PEVETO
Defendant:
Dateof Original CommunitySupervision Order: Statute for Offense:
8/17/2012 35.02(c)(4) Penal Code
Offense for which Defendant Convicted:
INSURANCE FRAUD
Date of Offense:
9/6/2011
Degree ofOffense: Plea to Motion to Revoke: Findings on Deadly Weapon:
STATE JAIL FELONY TRUE N/A
OriginalPunishmentAssessed:
TWO (2) YEARS STATE JAIL DIVISION, TDCJ PROBATED TWO (2) YEARS FINE: $ 500.00
ShockCommunitySupervision:
N/A FINE: $ N/A
Date Sentence Date Sentence to
2/6/2014 2/6/2014
Imposed: Commence:
Punishment and Place
TWO (2) YEARS STATE JAIL DIVISION, TDCJ
of Confinement:
THE CONFINEMENT ORDERED SHALL RUN CONCURRENTLY.
THE FINE ORDERED SHALL RUN CONCURRENTLY.
Fine: Court Costs: Restitution: Restitution Payable to:
• VICTIM (seebelow) Q AGENCY/AGENT (see
$ 500.00 SNA
below)
Is Original Judgment / Sentence Reformed? NO
O Inaccordance with Section 12.44(a) Penal Code, theCourt finds thattheends ofjusticewould bestbe served by
punishment as a ClassA misdemeanor. Defendant is adjudged to be guilty of a statejail felonyand is assessed punishment
indicated above.
SexOffender Registration Requirements do notapply to theDefendant. Tex. Code Crim. Proc. chapter 62The ageof the
victim at the time of the offense was N/A .
If Defendant is to serve sentence in TDCJ, enter incarceration periods in chronological order.
From 3-7-12 to 3-7-12 From 10-8-13 to 10-8-13 From 1-21-14 to 2-6-14
From to From to From to
Time
Credited:
If Defendant is to serve sentence in county jail or is given credit toward fine andcosts, enterdayscredited
below.
N/A DAYS NOTES: N/A
Juo^entJ«voktot_&3iiiiiiuiuty_3op«™ionJ160l^ (10-30-09) poUBcojoe.doc Page 1 of 8
All pertinent information, names and assessments indicated above are incorporated intothe language of thejudgment
below by reference.
Thiscause wascalled in Collin County, Texas. The State appeared by herDistrict Attorney.
Counsel / Waiver of Counsel (select one)
^ Defendant appeared inperson with Counsel.
• Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
I The State filed amotion to revoke Defendant's community supervision. After hearing the State's motion,
Defendant's plea, the evidence submitted, andreviewing therecord, theCourt Grants the State'smotion. The Court's record
! indicates that Defendant was previously convicted ofa felony offense and punishment was assessed as indicated above. The
| record indicates the Court ordered imposition of Defendant's sentence ofconfinement suspended and placed Defendant on
I community supervision forTWO (2) YEARS.
• The Court Finds Defendant has violated the conditions of community supervision assetoutintheState's AMENDED
j Motion to Revoke Community Supervision as follows:
| 2,4,5,7-14, STATE ABANDONS 1,3,6, AS PER ATTACHED MOTION.
1 Accordingly, the Court Orders the previous orders inthiscause suspending imposition of sentence of confinement
i and placing Defendant on community supervision Tevoked. (select oneofthe following)
| E3 The Court Orders Defendant punished in accordance with the judgment and sentence originally entered in this cause.
j D Finding itto be in the interest ofjustice, the Court Orders Defendant punished in accordance with the reformed judgment
j and sentence indicated above.
Punishment Options (select one)
[3 Confinement in State Jail or Institutional Division. The Court Orders the authorized agent ofthe State ofTexas or the
Sheriffofthis County to take, safelyconvey,anddeliver Defendant to the Director, StateJail Division, TDCJ. The Court
Orders Defendant to be confined forthe period and in the mannerindicated above. The Court OrdersDefendant remanded to
the custody ofthe Sheriff ofthis countyuntilthe Sheriffcan obeythe directions ofthis sentence. The Court Orders thatupon
release from confinement, Defendant proceed immediately to theCollin County District Clerk. Once there, theCourt Orders
Defendant to pay, or make arrangements to pay, anyremaining unpaid fines, court costs, and restitution as ordered by the
Court above.
• County Jail—Confinement / Confinement inLieu ofPayment. The Court Orders Defendant immediately committed to
the custody ofthe Sheriff ofCollin County, Texas on the date the sentence is to commence. Defendant shall be confined in
theCollin County Jail forthe period indicated above. The Court Orders that upon release from confinement, Defendant shall
proceed immediately to the Collin County DistrictClerk. Once there,the Court Orders Defendant to pay, or make
arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above.
Q Fine Only Payment. The punishment assessed against Defendant is for a fine only. TheCourt Orders Defendant to
proceed immediately to the Office of the Collin County . Once there, the Court Orders Defendant to pay or make
arrangements to pay all fines and court costs as orderedby the Court in this cause.
The Court Orders Defendant's sentence executed.
The Court Orders that Defendant is given credit noted above on this sentence for the time spent incarcerated.
The Court further Orders Defendant to payall fines, court costs,and restitution as indicated above.
Following the disposition of this cause, the defendant's fingerprints were, in open court, placed upona Judgment
Certificate of Defendant's Prints. Said Certificate' is attached hereto and is incorporated by reference asa part ofthis
Judgment
JiripwntJtwoKnt_CommumtyJiuptrviaiop.0fl0106 (1(130^9) pobnco jo>.dac Pat* 2 of 3
Furthermore, the following special findingsor orders apply:
Signed on the , 2014.
PRINTED NAME
If sitting for PresidingJudge
Clerk:
Judfm«ntJi«vokini_Ci)mmuiiity_Supem«iiin.050106 (10-30-09)paUutt jM.doe Pate 3 ofS
—„- ..i, —
- , ,- Cause Ne. HoV-frm<-taTL
STATE OBJEMS , , § IN THE^tsiJUDICIAL
§
VS. DJS„TRICTCOtgiT OF
COLLIN COUNTY, TEXAS
WPCMfiftT CERTIFICATE Of DEFENDANT'S>MNtS
Defendant's Right Thumb* Defendant's Hand
THIS-1St,'XO CERTIFY THAT THE FINGERPRINTS ABOVE ARE THE ABOVE NAMED DEFENDANT'S
FINGERPRINTS. TAjK$» ATTHE TIME OF DISPOSmONOF THE, ABOVE STYXED AND NUMBERED CAUSE.
DONE!NOPE»4K. ¥. 20,
BAILVF ItStUVY SHERIFF
Indicate here if,printother than the defendant's right thumb a placed in box.
Q Left Thumbprint
D Left/Right Index Finder
D Other . '.
&wjjed 03/27/2012
2/19/2014 8:58 AM SCANNED Page 1
CASE NO. 401-81063-2011 Count Single INCIDENTNO./TRN: 9161835579 TRS: A001
The State of Texas In The 401ST Judicial
FILED IN
v. DISTRICTCOURT 5th COURT OF APPEALS
DALLAS, TEXAS
JOEPOLANCO COLLIN COUNTY, ^§014 10:12:54 AM
LISA MATZ
STATE ID NO.: TX06620534
Judgment adjudicating Guilt
Date Judgment
Judge Presiding: HON. MARK J. RUSCH 2/6/2014
Entered:
Attorney for
Attorney for State: ZEKE FORTENBERRY ANDREW PEVETO
Defendant:
DateofOriginal Community Supervision Order: Statute for Offense:
1/25/2012 Section 22.01(a)(1) Penal Code
Offense for which Defendant Convicted:
ASSAULT BODDLY INJURY, A LESSER INCLUDED
Pate of Offense:
10/13/2010
Degree: Plea to Motion to Adjudicate: Findings on Deadly Weapon:
CLASS A MISDEMEANOR TRUE N/A
Terms of Plea Bargain:
ADJUDICATE GUILTY, WAIVERS, COURT COSTS, BACK TIME AND ONE (1) YEARS CONFINEMENT IN
THE COUNTY JAIL
Date Sentence Date Sentence to
2/672014 2/6/2014
Imposed: Commence:
Punishment and Place
ONE (1) YEARS COUNTY JAIL
of Confinement:
Fjnej Court Costs: Restitution: Restitution Payable to:
Q VICTIM (seebelow) • AGENCY/AGENT (see
SNA SNA
below)
THE CONFINEMENT ORDERED SHALL RUN CONCURRENTLY.
THE FINE ORDERED SHALL RUN CONCURRENTLY.
• SENTENCE OF CONFINEMENTSUSPENDED, DEFENDANT PLACEDON COMMUNITY SUPERVISION
FOR NA YEARS. :
Sex Offender Registration Requirements do notapply to the Defendant TEX. CODE Crim. Proc. chapter 62
The age ofthe victim atthe time of the offensewasN/A .
If Defendant is to serve sentence in TDCJ. enter incarcerationperiods in chronological order.
From 5-17-11 to 5-17-11 From 12-18-12 to 12-18-12 From 12-19-13 to 12-19-13.
Time
Credited: From 1-21-14 to 2-6-14 From to From to .
If Defendant is to serve sentence in county iail oris given credit toward fine andcosts, enterdavscredited
below.
N/A DAYS NOTES: N/A •
All pertinent information, names and assessments indicated above are incorporated into thelanguage ofthejudgment
below by reference.
JndjmenUWjwSc«tiiii_GuilU)60106 (10-30-09) POLANCO JOE8l063.doc Pile I of 3
] The Court previously deferred adjudication of guilt in this case. Subsequently, the Court heard the matter of
j Defendant's compliance with and obedience to the terms and conditions of the Court's Order of Deferred Adjudication of
i Guilt. The State appeared by her District Attorney.
| Counsel / Waiverof Counsel (select one)
| IE! Defendant appeared in person with Counsel.
1 D Defendant knowingly, intelligently, and voluntarily waived the right torepresentation bycounsel inwriting in open court
After hearing andconsidering the evidence presented by bothsides,the CourtFINDS THE FOLLOWING: (1) The Court
j previously found the Defendant to be qualified for community supervision; (2) TheCourt DEFERRED further proceedings, made
j no finding of guilt, andrendered nojudgment; (3) The Court issued anorder placing Defendant on community supervision for a
! period of TWO (2) YEARS;
j (4) The Courtassessed a fineof $ 750.00; (5) While on community supervision, Defendant violatedthe termsandconditions of
i community supervision as set out in the State's AMENDED Motion toAdjudicate Guilt as follows:
i 2.4.5.7-10. STATE ABANDONSPARAGRAPHS 1.3.6. AS PER ATTACHED PETITION TO ADJUDICATE
I
j Accordingly, the Court Grants the State'sMotion to Adjudicate the Defendant's Guilt in the above cause. FINDING
\ the Defendant committed the offense on the date as noted above, the Court ORDERS, ADJUDGES AND DECREES that
] Defendant is GUILTY of the offense. TheCourt FINDS thePresentence Investigation, if soordered, wasdone according to
•j the applicable provisions ofTEX. CODE CRIM. PROC. art. 42.12 § 9.
|
The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to payall fines, court
] costs, andrestitution as indicated above.
Punishment Options (select one)
• Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas or
the Sheriff of this County to take, safely convey, and deliver Defendant to the Director, State Jail Division,TDCJ. The
Court ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant
remanded to the custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence. The Court
ORDERS that upon release from confinement Defendant proceed immediately to the Collin County District Clerk. Once
there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and
J restitution as orderedby the Court above.
j (3 County Jail—Confinement / Confinement in Lieu of Payment The Court ORDERS Defendant immediately
1 committed to thecustody of the Sheriffof Collin County. Texas onthedate the sentence is to commence. Defendant shall be
| confined in the Collin County Jail for the period indicated above. The Court ORDERS that upon release from confinement
j Defendant shall proceed immediately to the Collin County District Clerk. Once there, the Court Orders Defendant to pay,
i ormake arrangements to pay, anyremaining unpaid fines, court costs, andrestitution as ordered by the Court above.
I • Fine Only Payment The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant to
| proceed immediately to the Office ofthe Collin County District Clerk. Once there, the Court ORDERS Defendant to pay or
I make arrangements to pay all fines and court costsas ordered by the Courtin this cause.
i Execution / Suspension of Sentence (select one)
: E3 The Court ORDERSDefendant's sentence executed.
\ • The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on
community supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and
\ conditions of community supervision. The order setting forth the terms and conditions of community supervision is
\ incorporated into this judgment by reference.
TheCourt ORDERS thatDefendant is given credit noted above onthissentence for thetime spent incarcerated.
j Following the disposition of this cause, the defendant's fingerprints were, in open court, placed upon a Judgment
\ Certificate of Defendant's Prints. Said Certificate is attached hereto and is incorporated by reference as a part of this
\ Judgment.
\
] JudpMiitJUMudi««tint.O"il«-0501O8(lOJl«(9) POLANCOJOR8Io6a.doc PwoSofS
Furthermore, the following special findings or orders apply:
Signed on the /^ day of 72014.
Judge Presidii
PRINTED NAME
If sitting for Presiding Judge
Clerk:
Judgnieiit_Adjudkating_Guilt_0W106 (10-30-09) POLANCO JOB 81063.doc Fags 3 of 3
IJI' «
f ,
Cause Nor *VO\'-'8\0fcVlA*l
\
' STATE OF TEXAS ' § IN THE M"$ JUDICIAL
vfvv -
t §
DISTRICT COURT OF
C "ft***,,.* s COIXIttCOUNTY, TEXAS'
i
JUDGMENT CERTIFICATE OF DEFENDANT'S PRINTS
sf&,;™
Defendant's Right Thumb* ' Defendant's Hand
THIS IS TO CERTIFY THAT THE FINGERPRINTS ABOVE ARE THE ABOVE NAMED DEFENDANT'S
FINGERPRINTS tAKEN AT THETIMEOFDISPOSITION OFTHEABOVESTALEDAND NUMBERED CAUSE.
DONE IN OPEN COURT ON THIS fa -DAY OF F£$2j}4&l •
SHERIFF
Indicate here if print otherthanthe defendant's light thumb is placed in box:
D Left Thumbprint
D Left /Rightlndex Finger
D' Other:
Revised oifnmm ?
Court of Appeals;
Jftftrj ©tetrtct of t£exa* at Ballad
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.
Court of Appeals;
Jftftii JBtetrtct of Qfcxa* at ©alias
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.
AFFIRM; and Opinion Filed February 25, 2015.
In The
Court of Appeals;
Jfifty ©tetrtct of tKexa* at ©alias;
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
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(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
Polanco, Joe
Combined Opinion