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-
