       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»<jofaRT ON THIS V- DAY Of 'F^f^V>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:




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                                         JUDGMENT CERTIFICATE OF DEFENDANT'S PRINTS




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             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:

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             D Left /Rightlndex Finger
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                                   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



                                                  -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
