                                                                                ACCEPTED
                                                                            13-15-00152-CR
                                                            THIRTEENTH COURT OF APPEALS
                                                                   CORPUS CHRISTI, TEXAS
                                                                      8/17/2015 12:55:02 PM
                                                                     CECILE FOY GSANGER
                                                                                     CLERK

                       No. 13-15-00152-CR

                            IN THE                  FILED IN
                                            13th COURT OF APPEALS
                                         CORPUS CHRISTI/EDINBURG, TEXAS
              THIRTEENTH COURT OF       APPEALS
                                            8/17/2015 12:55:02 PM
                                              CECILE FOY GSANGER
                           OF TEXAS                  Clerk


                   AT CORPUS CHRISTI, TEXAS


                      LEANDRE V. HILL,
                          Appellant

                               v.

                     THE STATE OF TEXAS,
                           Appellee


               TRIAL CAUSE NO. 2012CR9686
          APPEAL FROM THE 379TH DISTRICT COURT
                 BEXAR COUNTY, TEXAS
         HONORABLE RON RANGEL, JUDGE PRESIDING


                     APPELLANT’S BRIEF


                             RICHARD B. DULANY, JR.
                             Assistant Public Defender
                             Bexar County Public Defender’s Office
                             101 W. Nueva St., Suite 370
                             San Antonio, Texas 78205
ORAL ARGUMENT IS             (210) 335-0701
NOT REQUESTED                FAX (210) 335-0707
                             richard.dulany@bexar.org
                             Texas Bar No. 06196400

                             ATTORNEY FOR APPELLANT
                         Identity of Parties and Counsel

Pursuant to TEX.R.APP.P. 38.1(a), the parties are as follows:

LeAndre V. Hill was the Defendant and is the Appellant.

The State of Texas, by and through the Bexar County District Attorney’s Office,
prosecuted this case and is the Appellee.

For the State:
At trial:    Bill Pennington
             Jessica Frazier
             Assistant District Attorneys
             Bexar County District Attorney’s Office
             Paul Elizondo Tower
             101 W. Nueva St., Fourth Floor
             San Antonio, TX 78205

On appeal: Nicholas A. LaHood/Appellate Section
           Bexar County District Attorney’s Office
           Paul Elizondo Tower
           101 W. Nueva St., Suite 710
           San Antonio, TX 78205

For the Appellant:
At trial:   James Tocci
            Law Office of James Tocci
            222 South Flores St.
            San Antonio, TX 78204

             Daniel E. Perez
             Law Office of Denise Martinez
             222 S. Flores St.
             San Antonio, TX 78204

On appeal: Richard B. Dulany, Jr.
           Assistant Public Defender
           Bexar County Public Defender’s Office
           101 W. Nueva St., Suite 370
           San Antonio, TX 78205

                                         ii
The Trial Court:
Hon. Ron Rangel, Judge Presiding
379th District Court
300 Dolorosa Street, Fourth Floor
San Antonio, TX 78205




                                    iii
                                                Table of Contents

Identity of Parties and Counsel ....................................................................................ii

Table of Contents .........................................................................................................iv

Index of Authorities .....................................................................................................v

A Note on Record References......................................................................................vi

Certificate of Compliance with Word Limit ................................................................ vi

Statement of the Case...................................................................................................1

Statement Regarding Oral Argument .......................................................................... 2

Issue for Review (Presented) .......................................................................................3

        The judgment should be corrected to give Hill credit on his sentence for
        all of the time that he remained in custody until he was sentenced. .......... 3
Statement of Facts ........................................................................................................4

Summary of the Argument...........................................................................................11

Argument......................................................................................................................12

         Issue for Review (Restated) .......................................................................... 12

Conclusion and Prayer for Relief................................................................................. 16

Certificate Of Service...................................................................................................16

Appendix ......................................................................................................................17




                                                             iv
                                                Index of Authorities

Cases
Ex parte Bynum, 772 S.W.2d 113 (Tex. Crim. App. 1989) .............................................. 12

Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004) .............................................. 12

In re L.G.G., 398 S.W.3d 852 (Tex. App.––Corpus Christi 2012, no pet.) .......... 12, 13, 14

Turner v. State, 733 S.W.2d 218 (Tex. Crim. App. 1987)(en banc) ................................. 14

Statutes
TEX. CODE CRIM. PROC. ANN. art. 42.03 § 2(a)(1) (West Supp. 2015) ............................ 12

TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2015) ........................................................... 1

Rules
TEX. R. EVID. 201 .............................................................................................................. 14

TEX.R.APP.P. 9.4(i)(1)........................................................................................................ vi

TEX.R.APP.P. 9.4(i)(2)(B) .................................................................................................. vi




                                                                v
                          A Note on Record References

      The reporter’s record in this case consists of seven volumes plus a

supplemental volume. Volume 1 is the Master Index. Volume 6 is the exhibits

volume. The supplemental volume contains the proceedings held on January 14,

2015. If the volumes were organized chronologically, the supplemental volume

would be between Volume 2 and Volume 3 of the reporter’s record.

      References to the reporter’s record will be: ([Volume Number] RR at ___ ).

References to the supplemental reporter’s record will be: (SRR at ___ ).

      The clerk’s record consists of the main volume, plus a supplemental volume

that includes the amended Judgment. Reference to the clerk’s record will be: (CR

at ___ ). Reference to the supplemental clerk’s record will be: (SCR at ___ ).



                   Certificate of Compliance with Word Limit

      Pursuant to TEX.R.APP.P. 9.4(i)(1) & (i)(2)(B), the word count, from the

beginning of the Statement of Facts until, but excluding, the signature block, is:

2,476. The total word count is 3,471.




                                          vi
TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS
DISTRICT OF TEXAS:

         This brief is filed on behalf of Appellant, LeAndre V. Hill, by Richard B.

Dulany, Jr., an Assistant Public Defender with the Appellate Unit of the Bexar

County Public Defender’s Office. This is an appeal from a finding of guilt after a

non-jury trial.

                                  Statement of the Case

         Appellant, LeAndre V. Hill, was charged by indictment with one count of

burglary of a habitation, a second-degree felony. 1 (CR at 5). The offense was

alleged to have been committed in Bexar County, Texas, on or about January 9,

2012. (CR at 5). Hill waived his right to a jury trial and pleaded not guilty. (2 RR

at 5). The trial court found Hill guilty of the charged offense and sentenced him to

six years of imprisonment with a $2,500 fine. (4 RR at 27)(SCR at 3).

         The trial court accurately certified that Hill has the right of appeal. (CR at

33). Trial counsel timely filed a written notice of appeal on Hill’s behalf. (CR at

37). The Bexar County Public Defender’s Office was appointed to represent Hill

on appeal (CR at 38), and this appeal follows.




1
    TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2015).


                                              1
                      Statement Regarding Oral Argument

      The issue raised in this appeal may be determined from the record and cited

authority alone. For that reason, undersigned counsel does not request oral

argument, but will present oral argument if it is requested by the State.




                                          2
                    Issue Presented for Review (Presented)

The judgment should be corrected to give Hill credit on his sentence for all of
the time that he remained in custody until he was sentenced.




                                       3
                                Statement of Facts

      Hill waived the right to a jury trial. (2 RR at 5). The bench trial began on

January 13, 2015. Hill pleaded “not guilty” to the charged offense. (2 RR at 5).

Terin Quijano was the State’s first witness. Quijano lived in the Camden

Apartments on Bandera Road. (2 RR at 9). His apartment was on the second floor,

but the front door was on the ground level at the bottom of a stairwell. (2 RR at

12). On January 9, 2012, Quijano was sleeping late. (2 RR at 9, 13). A loud noise

woke him up. (2 RR at 14). He heard the noise “[t]hree or four times at least.” (2

RR at 48). He looked out the front window of his apartment and saw a man

standing outside, near his front door. (2 RR at 15). The man looked up and Quijano

saw his face. (2 RR at 15). Quijano explained that he was prepared by “military

style training” to be alert and think clearly immediately upon waking. (2 RR at 48).

      Quijano went downstairs and opened his front door. He saw dirt on the door

and noticed that it was damaged. (2 RR at 16). To Quijano, it seemed like “some

force” had been applied to his door. (2 RR at 16). He realized that someone tried to

break into his apartment. (2 RR at 18). Quijano went back upstairs and looked out

his window again. The man had left, but Quijano saw an unfamiliar black Volvo

car in the parking lot. (2 RR at 21). The car was backed into the parking spot,

which was unusual for the apartment complex. (2 RR at 21). Quijano saw the car




                                          4
pull out of the parking spot as if the driver was in a hurry to get away. (2 RR at

22).

       Quijano couldn’t see who was in the black car, but he immediately called 9-

1-1 and provided the license-plate number, a description of the car, and a

description of the man he had seen standing near the front door of his apartment. (2

RR at 22). Right away, he heard police sirens and saw a police car outside the

apartment complex. (2 RR at 23). Almost immediately, he received a phone call

from one of the police officers who had stopped the black car. (2 RR at 24). He

estimated that all of these events happened within two minutes. (2 RR at 24). The

police came to his apartment and then took him to the station to make a statement.

(2 RR at 27).

       At the police station, Quijano identified the man he had seen standing in

front of his apartment. Quijano recognized both his clothing and physical

appearance. (2 RR at 28). Quijano remembered that the man wore “gym shorts and

sandals and socks.” (2 RR at 28). He said that the police did not try to unfairly

influence his identification. (2 RR at 49). A photograph of the person Quijano

identified was admitted as State’s Exhibit 10. (2 RR at 50). Quijano was confident

that his identification was accurate. (2 RR at 50). In the courtroom, Quijano

identified Hill as the same person he saw in front of his apartment and again at the




                                          5
police station. (2 RR at 51). On cross examination, Quijano agreed that he didn’t

see Hill carrying any property. (2 RR at 57).

          Sheila Meola is a San Antonio police officer. (2 RR at 62). On January 9,

2012, she heard a call for a burglary in progress. The dispatcher said a black Volvo

was involved, and provided the license-plate number and a description of the

suspect. (2 RR at 65). Meola was already very near the apartment complex on

Bandera Road. (2 RR at 64). She started to turn toward the apartments and saw the

black Volvo. (2 RR at 65). She pulled in front of the Volvo and stopped it. (2 RR at

66, 68). She saw mud on the tires and saw tracks where the driver had cut through

a muddy field near the apartment complex. (2 RR at 67). That was unusual. (2 RR

at 67).

          Meola said the license plate number on the car differed from the number

given by the dispatcher by only one letter. (2 RR at 69). Meola removed the driver

from the black Volvo and handcuffed him. (2 RR at 70). He was black. (2 RR at

67). She didn’t realize that there was a passenger in the car until later because the

tint on the window was very dark. (2 RR at 70). She saw a flat-screen television in

the back seat. (2 RR at 70). A second officer, Officer Sandoval, arrived and

handcuffed the passenger. (2 RR at 71). Meola identified Hill in the courtroom as

the driver of the black Volvo. (2 RR at 72). After Hill and the passenger were

detained, Meola found a gym bag in the Volvo with a business-card attached to it.



                                            6
(2 RR at 73). She called the person named on the card and learned that he lived in

the same apartment complex as Quijano. (2 RR at 74). Meola then took Hill to the

police station. (2 RR at 76).

      Jordan Korphage was another resident of the apartment complex on

Bandera Road. (2 RR at 91). He lived in the apartment below Quijano. (2 RR at

94). On January 9, 2012, Korphage locked the apartment when he left and did not

give anyone permission to enter or take his property. (2 RR at 99-100). The police

called him shortly after noon that day. He returned to his apartment and met police

officers there. (2 RR at 93). He saw that his TV, some DVD’s, and a laptop

computer were missing. (2 RR at 93). There was mud on the carpet in the living

area and the door frame was broken as if the door had been kicked open. (2 RR at

93-94). The police recovered his TV, gym bag, and other property. (2 RR at 97).

      Detective Augustin Garcia was dispatched to the burglary. (2 RR at 106).

He saw that Officers Meola and Sandoval had the suspects in the black Volvo

under control, so he went on to the apartment complex. (2 RR at 108). Garcia

spoke to Quijano and then saw that an apartment adjacent to his had been broken

into. (2 RR at 112). Garcia saw a “huge footprint” on the door. (2 RR at 113).

Quijano’s door also had a muddy footprint. (2 RR at 114, 122). Garcia took

photographs of footprints in the mud around the apartments. (2 RR at 117, 122).

He also took photographs of Hill’s sandals. (2 RR at 116). State’s Exhibits 51 and



                                         7
52 show the tread pattern on the soles of the sandals. (2 RR at 122). Those exhibits

were admitted without objection. (2 RR at 123). Garcia believed that a detective

instructed him to take photographs of the shoeprints and the sandals because they

were the same shoes that left the prints at the crime scene. (2 RR at 122). 2

       The State rested. (SRR at 12). Defense counsel’s motion for a directed

verdict was denied. (SRR at 20).

       Detective Ronald Davis was Hill’s first witness. (SRR at 21). There were

two suspects: Hill and Patrick Freeman. (SRR at 22). Davis interviewed both of

them at the police station. (SRR at 31). He believed Freeman was involved in the

burglary, but he “just didn’t have the proof.” (SRR at 34). On cross examination

(by the prosecutor) Davis said that Hill did not deny that he had been in front of the

burglarized apartments, and did not deny that the black Volvo was his car. (3 RR at

8). Davis also said that Hill’s sandals made the shoe prints photographed at the

crime scene. (3 RR at 10).

       Defense counsel wanted to call Patrick Freeman as a witness, but Mr.

Freeman invoked his Fifth Amendment right not to testify. (3 RR at 23). The

defense rested. (3 RR at 34). The State recalled Detective Davis. (3 RR at 35).

Davis made video recordings of his interviews with both Hill and Patrick Freeman.



2
  State’s Exhibits 49 and 50 are photographs of the shoe prints found outside the burglarized
apartment. They were admitted without objection. (2 RR at 118).


                                             8
(3 RR at 36). The video recording of the interview with Hill was admitted without

objection as State’s Exhibit 55A. (4 RR at 4).

      The State and defense closed. (4 RR at 14). The trial court found Hill guilty

of the charged offense. (4 RR at 27).

      Hill was sentenced by the trial court several weeks later, on February 24,

2015. (5 RR at 1). The punishment hearing was held in conjunction with the

probation-revocation hearing in cause number 2009CR10328, also a burglary

case.3 (5 RR at 4). Mr. Hill was sworn and told the trial court, “I had the stolen

property in my vehicle. It was in my vehicle. I never denied that.” (5 RR at 17).

But Hill denied committing the burglary. (5 RR at 17). On cross examination, Hill

also denied having anything to do with burglaries in Georgia. He said he agreed to

a sentence of “banishment” because he was told he was going to be charged with

other cases in Georgia as well. (5 RR at 22). Hill said he did not commit the

burglary that he was on probation for, in cause number 2009CR10328, but “took

the [deferred-adjudication] probation to avoid the conviction.” (5 RR at 26). He did

admit that he possessed stolen property. (5 RR at 27). Hill said he was not guilty of

any of the burglaries that he had been charged with, neither in Georgia nor in

Bexar County. (5 RR at 28).


3
  The appeal from the burglary conviction in cause number 2009CR10328 is now pending before
the Fourth Court of Appeals of Texas in cause number 04-15-00164-CR, styled LeAndre V. Hill
v. The State of Texas.


                                            9
      The trial court sentenced Hill to six years of imprisonment in this case with a

$2,500 fine. The trial court gave Hill “credit for the time that you’ve served,” and

ran the sentence concurrent with the two-year sentence imposed in cause number

2009CR10328. (5 RR at 35). The judgment states that Hill had exactly one day of

time credited for prior incarceration, on January 10, 2012. (SCR at 3). This appeal

follows.




                                         10
                             Summary of the Argument

Issue for Review (Summarized):

      Hill was sentenced in both this case and a second burglary case, cause

number 2009CR10328, in a single proceeding. (5 RR at 4). The judgment in cause

number 2009CR10328 shows that Hill was incarcerated from April 8, 2012 to

March 18, 2014. Yet that period of incarceration was omitted from the judgment in

this case. Because Hill is entitled to back-time credit for all time he spent in jail

prior to sentencing, this Court should take judicial notice of the judgment from

cause number 2009CR10328 (because it is a related proceeding with the same

parties) and modify the judgment in this case to reflect that Hill should receive

back-time credit for all the time that he was incarcerated before he was sentenced.




                                           11
                             Argument and Authorities

                             Issue for Review (Restated)

             The judgment should be corrected to give Hill credit
             on his sentence for all of the time that he remained in
             custody until he was sentenced.

      In his sole issue for review, Hill asserts that the judgment should be

corrected to show that the trial court awarded back-time credit for the period from

April 8, 2012 to March 18, 2014, when Hill was physically confined in the county

jail in this case before sentencing.

Applicable law:

      Pursuant to Article 42.03, Section 2(a), a defendant is entitled to credit for

all time spent “in jail for the case.” TEX. CODE CRIM. PROC. ANN. art. 42.03 §

2(a)(1) (West Supp. 2015); see Ex parte Bynum, 772 S.W.2d 113, 114 (Tex. Crim.

App. 1989) (“It is settled that an individual is entitled to all time spent in jail ‘on

said cause.’”). “The trial court is required to grant the [defendant] pre-sentence jail

time credit when [the] sentence is pronounced.” See Ex parte Ybarra, 149 S.W.3d

147, 148 (Tex. Crim. App. 2004).

      This Court has held that “[t]he preferred practice is for the trial court to

award pre-sentence time credit and for the trial court to correct any errors in the

amount of time credit awarded by judgment nunc pro tunc.” In re L.G.G., 398

S.W.3d 852, 863 (Tex. App.––Corpus Christi 2012, no pet.). But “…an appellate



                                            12
court ordinarily has the power to correct a clerical error in a judgment when the

evidence necessary to correct the judgment appears in the record on direct appeal.

As such, the appellate court is permitted to correct the clerical error in the amount

of time credit awarded, notwithstanding the fact that no motion for judgment nunc

pro tunc was filed in the trial court.” Id. (internal citation omitted).

Factual background:

      The punishment hearing in this case was held in conjunction with the

probation-revocation hearing in cause number 2009CR10328 (which is also a

burglary case), in a single proceeding. (5 RR at 4). The trial court pronounced

sentence in the two cases as follows:

      2009CR10328:

      The trial court revoked deferred-adjudication probation in cause number

2009CR10328, found Hill guilty of the burglary charged in that case. (5 RR at 34).

The trial court pronounced sentence as follows: “I assess punishment at two years’

confinement in a state jail facility; grant you credit for all the time you’ve served;

run it concurrent with 2012-CR-9686; pronounce your sentence as satisfied.” (5

RR at 34).

      2012CR9686:

      The trial court pronounced sentence in this case as follows: “I assess

punishment at six years’ confinement in the Texas Department of Corrections,



                                           13
Institutional Division; assess a fine of $2500; grant you credit for the time that

you’ve served. I’ll run it concurrent with 2009-CR-10328.” (5 RR at 35).

The judgment should be modified to include the omitted back-time credit:

       The judgment in this case recites that Hill was incarcerated for only one day

(on January 10, 2012) before he was sentenced. (SCR at 3). Yet the judgment in

cause number 2009CR10328 shows that Hill was also incarcerated from April 8,

2012 to March 18, 2014.4 By reference to the judgment in cause number

2009CR10328, Hill has provided this Court with “sufficient information” to

calculate the back-time credit that should have been included in the judgment in

this case. Because Hill is entitled to back-time credit for the entire time he was in

custody before sentencing, the judgment should be amended to show that Hill was

also in custody from April 8, 2012 to March 18, 2014. See In re L.G.G., 398

S.W.3d at 864 (modifying trial court’s transfer order in a juvenile prosecution to

award erroneously omitted back-time credit because record included “sufficient




4
   Hill asserts that this Court may take judicial notice of the judgment in cause number
2009CR10328 because that case involves the same parties as the instant case, and because the
trial court pronounced sentence in both cases in a single proceeding. TEX. R. EVID. 201; but cf.
Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987)(en banc) (“…although an
appellate court may take judicial notice of its own records in the same or related proceedings
involving same or nearly same parties, [internal citations omitted] the general rule is that an
appellate court cannot go to the record of another case for the purpose of considering testimony
found there but not shown in the record case before it.”). The judgment from cause number
2009CR10328 is part of the clerk’s record in case number 04-15-00164-CR, currently pending in
the Fourth Court of Appeals of Texas. It is also provided as an appendix to this brief.


                                              14
information” to determine the exact amount of time that should have been

awarded).




                                       15
                         Conclusion and Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that the

judgment be reformed to give him credit for the entire time that he spent in jail

prior to sentencing, and prays for all other relief to which he is entitled.

                                         Respectfully submitted,

                                         /s/ Richard B. Dulany, Jr.
                                         ____________________________
                                         RICHARD B. DULANY, JR.
                                         Texas Bar No. 06196400
                                         Assistant Public Defender
                                         Bexar County Public Defender’s Office
                                         101 W. Nueva St., Suite 370
                                         San Antonio, Texas 78205
                                         (210) 335-0701
                                         FAX (210) 335-0707
                                         richard.dulany@bexar.org

                                         ATTORNEY FOR APPELLANT


                                Certificate of Service

      I hereby certify that a true and correct copy of the foregoing Appellant’s

Brief has been delivered electronically to the Bexar County District Attorney’s

Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., Suite 710,

San Antonio, Texas 78205, on August 17, 2015.

                                         /s/ Richard B. Dulany, Jr.
                                         ____________________________________
                                         RICHARD B. DULANY, JR.




                                           16
Appendix: Judgment Adjudicating Guilt, Cause Number 2009CR10328




                              17
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