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
Al/8 28 2015
45eMcosta, Cterk
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 hi 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
Exparte Briggs, 187 S.W.3d458 (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 Stricklandv. 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 Ybarra v. 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.
2
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 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
4
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 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 Strickland standard 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
6
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, %11 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/Weefo 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.
7
PRAYER
Petitioner prays that he be granted the relief he is requesting respectively.
Respectfully submitted,
PlanoT^exas 75025
TelephoneT"^72) 404-6818
CERTIFICATE OF MAILING
I HEREBY CERTIFY that a true and correct eXSpy ofthe^foregoing was mailed to Greg Willis, Collin Cour^District Attorney, 21(fo BloomdaleRsad, Suite 20004, McKinney, Texas 75071-8313 thisctQW" day of August, 201!
JOE P\)LANdO
?ro se
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
Memorandum Opinion from the 5th District Court of Appeals.
2/19/2014 9:13 AM SCANNED Page 1
I Case No. 401-80435-2012 Count Single Incident No./TRN: 9161975338 TRS:A001 t
; TheState of Texas § InThe401 STJudicial I § FILED IN v. § District Court 5th COURT OF APPEALS j § DALLAS, TEXAS \ JOEPOLANCO § Collin County, Texal/21/201410:23:44 AM „ _ § LISAMATZ | StateIDNo.:TX06620534 § Clerk i
Judgment Revoking Community Supervision I !
Judge Presiding:_ Hon. MARK J. RUSCH Date Judgment Entered:
2/6/2014
j } Attorney for State: ZEKE FORTENBERRY Attorney for Defendant:
ANDREW PEVETO
| Date ofOriginal Community Supervision Order: Statute for Offense: j 8/17/2012 35.02(c)(4) Penal Code j Offensefor which Defendant Convicted: !
INSURANCE FRAUD Date of Offense:
9/6/2011 Degree of Offense: Plea to Motion to Revoke: Findings on Deadly Weapon:
j STATE JAIL FELONY TRUE N/A Original Punishment Assessed:
TWO (2) YEARS STATE JAIL DIVISION, TDCJ PROBATED TWO (2) YEARS FINE: $ 500.00 ShockCommunity Supervision:
N/A FINE:$N/A DateSentence Date Sentence to Imposed: Commence:
SSKST"" TW0 <2> ™** STATE JAIL DIVISION'TDCJ THE CONFINEMENT ORDERED SHALL RUN CONCURRENTLY.
THE FINE ORDERED SHALL RUN CONCURRENTLY.
; Fine: Court Costs: Restitution: RestitutionPayable to: | $500.00 $53)— SNA DVICTIM (see below) DAGENCY/AGENT (see j below) i Is Original Judgment / Sentence Reformed? NO j fjj Inaccordance with Section 12.44(a) Penal Code, the Court finds that the ends ofjustice would best beserved by punishmentas a Class A misdemeanor. Defendant is adjudgedto be guilty of a statejail felony and is assessed punishment indicated above. ^^^^^^^ SexOffender Registration Requirements do not apply to theDefendant. Tex. CodeCrim.Proc.chapter62Theage of 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 servesentence in county jail or is givencredittowardfine and costs,enterdayscredited below.
N/A DAYS NOTES: N/A
| Jud^entJtovokincjCaiuiiimttyJtapervi^^ Pag»lof8
All pertinent information, names andassessments indicated aboveare incorporated into the language ofthe judgment belowby reference. j
i
This cause was called in Collin County, Texas. The State appeared by her District Attorney.
Counsel / Waiver of Counsel (select one) 13 Defendant appeared inperson with Counsel. Q Defendant knowingly, intelligently, and voluntarily waived the right to representation bycounsel in writing in open court.
The State filed a motion to revoke Defendant's community supervision. After hearing the State's motion, Defendant's plea, the evidence submitted, andreviewing the record, the Court Grants the State's motion. The Court'srecord indicates that Defendant was previously convicted of a 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 community supervision forTWO (2) YEARS.
The Court Finds Defendant hasviolated the conditions of community supervision as set out in the State'sAMENDED Motionto Revoke Community Supervision as follows:
2,4,5,7-14, STATE ABANDONS 1,3,6, AS PER ATTACHED MOTION. .
Accordingly, the Court Orders the previous orders in thiscause suspending imposition of sentence ofconfinement and placing Defendant on communitysupervision revoked, (select oneofthe following) £3 The Court Orders Defendant punished in accordance with the judgment and sentence originally entered in this cause. • Finding itto be in the interest ofjustice, the Court Orders Defendant punished inaccordance with the reformed judgment and sentence indicated above.
Punishment Options (select one) ^ Confinement inState 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 andin the mannerindicated above. The Court Orders Defendant remanded to the custody ofthe Sheriff ofthis countyuntil the Sheriffcanobeythe directions of this sentence. The Court Orders thatupon release from confinement, Defendant proceed immediately to the Collin County District Clerk. Oncethere, theCourt Orders Defendant to pay,or make arrangements to pay, anyremaining unpaid fines, courtcosts, and restitution as ordered by the Court above. O County Jail—Confmement / Confinement in Lieu 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 the Collin CountyJail forthe period indicated above. The Court Orders thatuponrelease from confinement, Defendant shall proceedimmediately 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 restitution as ordered by the Court above. |~~| Fine OnlyPayment. The punishment assessed against Defendant is for a fine only. The Court Orders Defendant to proceedimmediately to the Office of the Collin County . Once there, the Court Orders Defendant to pay or make arrangements to pay all fines and courtcosts as ordered by the Courtin this cause.
The Court Orders Defendant's sentence executed.
The Court Ordersthat Defendant is given creditnoted above on this sentence for the time spent incarcerated.
The Court further Orders Defendantto payall fines, courtcosts, andrestitution as indicated above.
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 asa part ofthis Judgment.
J«d«menU^oKiij_CommujiityJupervi«itiri_()Ml06 (10-30-09) poUncojoe.doc Fan! of 3
Furthermore, the following special findingsor orders apply:
Signed onthe /__> dayof ,2014.
PRINTED NAME
If sitting for PresidingJudge
Clerk:
Jo<lgm«nt_RevokiiiE_Comniiiiiity_SupwviBon_OS0106U0-30-W) pabneo jMdoe Pan 3 of 3
S?,*M«S**> '/%k tffi Cause No. HoW-fr^te*-^-!, STATEjOfcTEXAS IN THEJaiJUDICIAL VS. D^TRICrcOWlTOF
COLLIN COUNTY, TEXAS
JPM&IEKT CERTIFICATE O^DEFJElSfprANT'S>KtNTS
Defendant'sRight Thumb* Defendant's Hand
THIS-IS^TO CERTIFY THAT THE FINGERPRINTS ABOVE ARE THE ABOVE NAMED DEFENDANT'S rTN$EJ*PRINTS TAK^J AT THE TIME OF DISPOSITION OF THE ABOVE STYLED ANDMJMBERED CAUSE.
DONE INOPE>00fa5RT' ON THIS fr DAY OF J=%%ilf2>U,4K Y. 20,
BAlUtFF /'OBKJTr SHERIFF
Indicate here if prim other than the defendant's right thumb is placed in box.
D Left Thumbprint
D Left/Right Index Finger D-Other: ' .' .. '.
Retised 03727/20*2
2/19/2014 8:58 AM SCANNED Page 1
CASE NO. 401-81063-2011 Count Single INCIDENT NO./TRN: 9161835579 TRS: A001
The State of Texas In The 401ST Judicial FILED IN
v. district Court 5th court of appeals DALLAS, TEXAS
JOEPOLANCO COLLIN COUNTY,T^^gQ^ 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:
Date of Original Community Supervision Order: Statute for Offense: 1/25/2012 Section 22.01(a)(1) Penal Code Offense for which Defendant Convicted: ASSAULT BODILY INJURY, A LESSER INCLUDED Date of Offense: 10/13/2010 Degree: Pleato Motion to Adjudicate: Findings on Deadly Weapon: CLASS A MISDEMEANOR TRUE N/A Terms of PleaBargain: ADJUDICATE GUBLTY, WAIVERS, COURT COSTS, BACK TIME AND ONE (1) YEARS CONFINEMENT IN THE COUNTY JAIL Date Sentence Date Sentence to 2/6/2014 2/6/2014 Imposed: Commence: Punishment and Place ONE (1) YEARS COUNTY JAEL of Confinement Fine; Court Costs: Restitution: Restitution Payable to:
D VICTOR (seebelow) Q AGENCY/AGENT (see SNA $(c5t^ SNA below) THE CONFINEMENT ORDERED SHALL RUN CONCURRENTLY. THE FUSE ORDERED SHALL RUN CONCURRENTLY.
• SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR NA YEARS. Sex Offender Registration Requirements do not apply to the Defendant TEX. CODE Crim. Proc. chapter 62 The ageofthe victim atthe time of the offense wasN/A .
If Defendant is to serve sentence in TDCJ. enter incarceration periods 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 isto serve sentence incounty jail oris given credit toward fine and costs, enter days credited below.
N/A DAYS NOTES: N/A •
All pertinent information, names and assessments indicated above areincorporated into the language of the judgment below by reference.
.Indgni(iil_A4jiidic«tin8_Gaill_060106(10-3049) POLANCO JOE 81063.doc Pl|»lof3 ] 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 | Guilt. The State appeared by her District Attorney.
| Counsel /Waiver of Counsel (select one) j IS! Defendant appeared in person with Counsel. | CD Defendant knowingly, intelligently, and voluntarily waived the right to representation bycounsel in writing in open court. I After hearing and considering the evidence presented byboth sides, the Court FINDS THE FOLLOWING: (1) The Court | previously found theDefendant to be qualified for community supervision; (2) TheCourt DEFERRED further proceedings, made | no findingof guilt, and rendered no judgment; (3) The Court issued an orderplacing Defendant on community supervision fora | period ofTWO (2) YEARS; i (4) The Courtassesseda fine of $ 750.00; (5) While on community supervision, Defendantviolated the terms andconditions of j community supervision as setout in the State's AMENDED Motionto Adjudicate Guilt as follows: I 2.4.5.7-10. STATE ABANDONSPARAGRAPHS 1.3.6. AS PER ATTACHED PETITION TO ADJUDICATE j | Accordingly, the Court GRANTS the State'sMotion to Adjudicate the Defendant's Guilt in the abovecause. FINDING j the Defendant committed the offense onthe date as noted above, the Court ORDERS, ADJUDGES AND DECREES that ] Defendant isGUILTYof the offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to | the applicable provisions ofTex.CodeCRIM. Proc. art. 42.12 §9. i
The CourtORDERS Defendantpunished as indicated above. The CourtORDERS Defendantto pay all fines, court ; costs, and restitution as indicated above. i
Punishment Options (select one)
| • Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent ofthe State of Texas or I 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 j ORDERS that upon release from confinement, Defendant proceed immediately to the Collin County District Clerk. Once i there, the Court Orders Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and ! restitution as ordered bythe Court above. | 03 County Jail—Confinement / Confinement in Lien of Payment The Court ORDERS Defendant immediately •; committed to the custodyof the Sheriff of Collin County. Texas on the date the sentence is to commence. Defendant shall be I confined in the Collin County Jail for the period indicated above. The Court ORDERS that upon release from confinement, 1 Defendant shall proceed immediately to the Collin County District Clerk. Oncethere,the CourtORDERS Defendant to pay, i or make arrangements to pay, any remaining unpaid fines, courtcosts,andrestitution as ordered by the Courtabove. | • Fine Only Payment The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant to | proceed immediately to the Office of the Collin County District Clerk. Once there, the Court ORDERS Defendant to pay or j make arrangements to pay all fines and court costs as ordered by the Court in this cause.
Execution / Suspension of Sentence (select one)
13 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.
The CourtORDERS that Defendant is givencredit noted above on this sentence forthe time spentincarcerated.
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.
| JudpMiit><Uudicattiij_0<iilt_0M106(10-3<M)9)POLANCOJOB810eadoc Pw>2tf3 i
Furthermore, the following special findings or orders apply:
Signed onthe /--> dayof 014.
Judge Presidii
PRINTED NAME
If sitting for Presiding Judge
Clerk:
Judjment^Adjudkatilu.GuiH.OMlOe (10-30-09) FOIANCO JOB 81063.doc Pago3 of 3
Come Nor ttt)\-fi\OfeV^\( STATE OF TEXAS IN THE M^ JUDICIAL -
(ViA vs-. DIS.TRICI COURT OF
COLLIN COUNTY,TEXAS'
JUDGMENT CERTIFICATEOF DEFENDANT'S PRINTS
.».- jo*
'
A'
Defendant'sRight Thumb* Defendant's Hand
THIS IS TO CBRT1FV THAT THE' FINGERPRINTS ABOVE ARE THE ABOVE NAMED DEFENDANT'S FINGERPRINfS TAKEN AT THE TIME OFDISPOSITION OFTHE ABOVESTYLED AND NUMBEREDCAUSE.
DONE IN OPEN COURT ON THIS^^XJAY 0F rE-Xf&tfAfi^f UTY SHERIFF
Indicate hereif print otherthanthe defendant's lightthumb is placed in box;
D Left Thumbprint D Left/Right Index Finger
0 Other:
Revised 03^7/2012
Court of Appeals;
Jftftrj Misittitt of Qfcxa* 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
Jfiftrj JBtetrtct of Qfcxa* at Ballas
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
Jftftf) Btetrict of flfexa* at Ballad
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, 11 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
(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); Goodspeedv. 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
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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
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