Malcolm Gandy v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00509-CR
Malcolm GANDY,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR6350
Honorable Melisa C. Skinner, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Rebeca C. Martinez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: February 13, 2019
AFFIRMED
After the trial court denied Malcolm Gandy’s motion to suppress, he pled nolo contendere
to the offense of murder and was sentenced to twenty-five years in prison in accordance with a
plea bargain agreement. On appeal, Gandy challenges the trial court’s denial of his motion to
suppress asserting: (1) the affidavit supporting his arrest warrant contained stale information and
statements that were deliberate falsehoods or made in reckless disregard of the truth; and (2) he
was not read his Miranda warnings before being questioned by the police, and the statements he
made were involuntary. We affirm the trial court’s judgment.
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PROCEDURAL BACKGROUND
On July 29, 2014, Gandy was indicted for murdering Jake Arrendondo on or about
September 1, 2011, by shooting Arredondo with a firearm. On February 25, 2015, Gandy filed a
notice of intent to raise an insanity defense. Based on this notice, the State filed a motion for a
psychiatric evaluation of Gandy on June 10, 2015, and the trial court signed an order the same day
appointing Dr. Brian Skop to conduct the evaluation. On September 20, 2015, Gandy filed a notice
withdrawing his insanity defense.
On September 21, 2015, the trial court held a hearing on Gandy’s motion to suppress.
Gandy sought to suppress statements he made during questioning by the police on May 16, 2014.
At the conclusion of the hearing, the trial court denied the motion and dictated its findings and
conclusions into the record. The trial court then asked Gandy questions regarding his election to
have the jury assess punishment. Based on Gandy’s responses, the trial court raised a concern
regarding Gandy’s competency and signed an order referring the matter to a magistrate to conduct
a competency hearing.
On September 22, 2015, the State filed a motion for a psychological examination, and on
September 25, 2015, Gandy filed a motion for a competency examination. On October 5, 2015,
the magistrate signed an order granting a competency evaluation by Dr. Brian Skop.
On November 9, 2015, a hearing was held on the competency disposition. The magistrate
announced it received Dr. Skop’s competency evaluation, and Dr. Skop found Gandy to be
competent to stand trial. Based on opinions Dr. Skop expressed regarding Gandy’s serious mental
illness diagnoses, defense counsel requested a jury trial on the issue of competency. The
magistrate announced the cause would be set for a jury trial on the issue of competency.
On February 8, 2016, the magistrate called for announcements on the competency trial.
Defense counsel announced he met with Dr. Skop, and Gandy was abandoning his request for a
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jury trial on the issue of competency. The magistrate found Gandy competent to stand trial and
referred the matter back to the trial court.
On May 23, 2016, Gandy entered his plea of nolo contendere. The trial court found Gandy
guilty and ordered a presentence investigation. On July 19, 2016, the trial court sentenced Gandy
in accordance with the plea bargain agreement. Gandy timely filed a notice of appeal challenging
the trial court’s denial of his motion to suppress.
STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018); Love v. State, 543
S.W.3d 835, 840 (Tex. Crim. App. 2016). Although we give almost total deference to the trial
court’s determination of historical facts, we conduct a de novo review of the trial court’s
application of the law to those facts. Lerma, 543 S.W.3d at 190; Love, 543 S.W.3d at 840. The
trial court is the sole judge of the credibility of the witnesses, and we examine the evidence in the
light most favorable to the trial court’s ruling. Lerma, 543 S.W.3d at 190.
ARREST WARRANT
In his first two issues, Gandy contends the trial court erred in denying his motion to
suppress based on his challenges to the arrest warrant. Gandy asserts the affidavit supporting the
arrest warrant was stale and contained deliberate falsehoods or statements made in reckless
disregard of the truth.
“In assessing the sufficiency of an affidavit for an arrest warrant, the reviewing court is
limited to the four corners of the affidavit.” Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim.
App. 2004); see also Whitemon v. State, 460 S.W.3d 170, 174 (Tex. App.—Fort Worth 2015, pet.
ref’d) (same). “The reviewing court should interpret the affidavit in a common sense and realistic
manner, recognizing that the magistrate was permitted to draw reasonable inferences.” Hankins,
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132 S.W.3d at 388; see also Whitemon, 460 S.W.3d at 174 (same). “We must defer to the
magistrate’s finding of probable cause if the affidavit demonstrates a substantial basis for his
conclusion.” Rodriguez v. State, 232 S.W.3d 55, 64 (Tex. Crim. App. 2007).
The State questions whether a claim of staleness is applicable to an arrest warrant as
opposed to a search warrant. Compare Cardoso v. State, 438 S.W.3d 815, 821 (Tex. App.—San
Antonio 2014, no pet.) (“Determining whether the information is stale should also involve
consideration of the type of property to be searched and the probability that the property may have
been relocated.”) with Valadez v. State, 476 S.W.3d 661, 667 (Tex. App.—San Antonio 2015, pet.
ref’d) (“An arrest warrant affidavit must provide the magistrate with sufficient information to
support an independent determination that probable cause exists to believe that the accused has
committed a crime.”) (internal quotation omitted). Assuming a claim of staleness is applicable to
an arrest warrant, the affidavit in support of Gandy’s arrest warrant was admitted into evidence as
an exhibit at the suppression hearing. Although Gandy paid the fee for the preparation of the
portion of the reporter’s record transcribing the suppression hearing, he did not pay for the
preparation of an exhibit volume. By order dated April 6, 2018, Gandy was advised that if he
failed to pay the fee for the preparation of the exhibit volume, this court would consider only those
issues raised in his brief that did not require that portion of the reporter’s record for a decision.
Gandy did not pay the fee for the preparation of the exhibit volume in response to the order;
therefore, the affidavit in support of the arrest warrant is not contained within the appellate record. 1
Because this court must review the four corners of the affidavit in evaluating whether the affidavit
1
In his brief, Gandy appears to contend the affidavit is contained in the clerk’s record; however, the clerk’s record
does not contain the affidavit. Gandy also attached the affidavit in an appendix to his brief; however, this court may
not consider documents attached to a brief that are not included in the appellate record. See Garcia v. State, 549
S.W.3d 335, 342 (Tex. App.—Eastland 2018, pet. ref’d); Blank v. State, 172 S.W.3d 673, 675 n.1 (Tex. App.—San
Antonio 2005, no pet.).
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provided a substantial basis for the probable cause finding, we cannot conclude the trial court
abused its discretion in finding probable cause when the affidavit is absent from the appellate
record.
Gandy next contends the affidavit contained deliberate falsehoods or statements made in
reckless disregard for the truth in violation of Franks v. Delaware, 438 U.S. 154 (1978). “Under
Franks, a defendant who makes a substantial preliminary showing that a false statement was made
in a warrant affidavit knowingly and intentionally, or with reckless disregard for the truth, may be
entitled by the Fourth Amendment to a hearing, upon the defendant’s request.” Harris v. State,
227 S.W.3d 83, 85 (Tex. Crim. App. 2007). Thus, the defendant must: (1) make specific
allegations in his pleadings of the portion of the affidavit claimed to be false; (2) provide an offer
of proof stating the supporting reasons; and (3) establish by a preponderance of the evidence that
the false statement was made knowingly, intentionally, or with reckless disregard for the truth. Id.Here, the record does not appear to establish Gandy met these burdens because the motion to
suppress did not contain any specific allegations regarding the affidavit and was not accompanied
by an offer of proof. Even if Gandy had met those burdens, however, he would still be required
to “[s]how that when the portion of the affidavit alleged to be false is excised from the affidavit,
the remaining content is insufficient to support issuance of the warrant. Id. Because the affidavit
is not contained in the appellate record, Gandy cannot meet this final burden.
Gandy’s first two issues are overruled.
VOLUNTARINESS OF STATEMENTS
In his third, fourth, and fifth issues, Gandy contends the trial court erred in denying his
motion to suppress because he was not read his Miranda warnings before being questioned by the
police, and the statements he made were involuntary. Gandy primarily bases his involuntariness
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argument on his mental illness and argues the trial court failed to consider his mental illness and
its effect on the voluntariness of his statement.
As previously noted, Gandy failed to pay the fee for the preparation of the exhibit volume
to the suppression hearing. At the hearing, the DVD recording of the May 16, 2014 police
questioning during which Gandy made the statements he sought to suppress was admitted into
evidence as an exhibit and was reviewed by the trial court. The DVD recording is not, however,
contained in the appellate record. In his brief, Gandy refers to a transcript of the recording which
is contained in the clerk’s record. That transcript, however, is attached to the plea bargain
documents. Although the reporter’s record of the suppression hearing indicates the transcript of
the recording was referred to during questioning at the suppression hearing, the transcript was not
introduced as an exhibit. Therefore, the record does not reflect that the trial court considered the
transcript of the recording, as opposed to the DVD recording, at the suppression hearing.
Accordingly, we may not consider the transcript of the recording in determining whether the trial
court erred in denying the motion to suppress. 2 See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.
Crim. App. 2007) (holding appellate court reviews trial court’s ruling at a suppression hearing
based on record produced at the hearing unless the suppression issue is relitigated at a trial on the
merits); Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004) (holding appellate court
could not consider documents that were not before the trial court at time of the trial court’s ruling);
Martinez v. State, 220 S.W.3d 183, 185 (Tex. App.—Austin 2007, no pet.) (“The appellate court
must review the trial court’s ruling in light of what was before the trial court at the time the ruling
was made.”).
2
Gandy’s brief also contains statements for which he cites the prosecution guide attached to the plea documents as
support. We will not consider any of these statements for the same reason.
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With regard to the Miranda warnings, Gandy appears to be arguing that he was not
provided any Miranda warnings before he submitted to a polygraph. Detective Leroy Carrion
testified Gandy’s parents drove him to the police station where he was questioned by a polygraph
expert and released. The record does not indicate Gandy sought to suppress any statement he made
during the polygraph examination which would, in any event, be inadmissible under the law.
Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990) (“The existence and results of a
polygraph examination are inadmissible for all purposes.”). After he was released following the
polygraph examination, Detective Carrion obtained a warrant for Gandy’s arrest. Gandy was
arrested, returned to the police station, and questioned. Gandy made the statements he sought to
suppress during that questioning. Detective Carrion testified at the suppression hearing that Gandy
was advised of his rights before the questioning. As previously noted, the trial court reviewed the
DVD recording of the questioning and expressly found on the record, “Prior to the beginning of
the interview, Detective Carrion read him his rights that were in substantial compliance with
Article 38.22 of the Code of Criminal Procedure.” Accordingly, any complaint that Gandy was
not provided with his Miranda warnings is overruled.
Gandy next appears to contend he did not voluntarily waive his Miranda rights. The State
has the burden to prove by a preponderance of the evidence that a defendant knowingly,
intelligently, and voluntarily waived his Miranda rights. Joseph v. State, 309 S.W.3d 20, 24 (Tex.
Crim. App. 2010). At the suppression hearing, Detective Carrion testified Gandy indicated he
understood his rights because “[he] nodded his head up and down [and] in a slow or real quiet tone
he said yes.” During questioning at the hearing, a portion of the transcript of the DVD recording
of the questioning was read reflecting Detective Carrion asked Gandy whether he understood his
rights, and Gandy responded, “Yes. Yes, sir.” Detective Carrion then asked, “Do you understand
what’s going on?” Gandy responded, “No, sir.” Detective Carrion testified Gandy was coherent,
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and he believed Gandy understood why he was there; however, Detective Carrion further testified
he explained the reason Gandy was there in reply to Gandy’s response. Based on the testimony at
the hearing and its review of the DVD recording, the trial court expressly found:
Mr. Gandy was specifically asked if he understood his rights and he answered
“yes, yes, sir.” Then there was a statement and I’ll concede there is a statement
afterwards where he’s asked if he understands what he — or what’s going on and
he says no but Detective Carrion was very specific in answering questions and the
Court does believe that Mr. Gandy understood what he was being asked, that the
drugs that he was taking did not seem to have an affect [sic] on his ability to
understand the circumstances or answer the questions.
In view of the testimony, the trial court’s findings, and the absence of the DVD recording from the
appellate record, we hold the trial court did not abuse its discretion in concluding Gandy
voluntarily waived his Miranda rights.
Finally, Gandy contends his statements were involuntary. As previously noted, Gandy
primarily relies on his mental illness to contend his statements “were clearly not the products of
[his] free choice.” In his brief, Gandy relies on the competency proceedings following the
suppression hearing and Dr. Skop’s report obtained as a result of those proceedings to support his
argument. None of this evidence, however, was before the trial court when it denied the motion
to suppress; therefore, we do not consider it in our review. See Gutierrez, 221 S.W.3d at 687;
Whitehead, 130 S.W.3d at 874; Martinez, 220 S.W.3d at 185. At the suppression hearing,
Detective Carrion testified Gandy was not coerced during the questioning and was offered water.
Detective Carrion further testified he believed Gandy was permitted to use his cell phone at some
point during the questioning. Although Detective Carrion stated he was aware Gandy was taking
medication for mental illness, Detective Carrion testified Gandy was coherent, appeared to
understand his questions, and was not sleepy or lethargic. Detective Carrion further stated Gandy
was not displaying any signs of mental illness and appeared competent and normal. Based on the
testimony and its review of the DVD recording, the trial court expressly found:
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And Detective Carrion interviewed him the same way he would interview any
other person because Mr. Gandy was not exhibiting any signs of influence or being
under the influence of a drug that affected his ability to give a voluntary statement
or voluntarily waive his rights, and I do find that he did voluntarily waive his rights
that he did voluntarily give that statement. He was at no time coerced, and he was
offered refreshment.
Detective Carrion indicated, and the Court does believe, that he was at no time
forced to give this statement. It is voluntary, and it was given in compliance with
Article 38.22 of the Code of Criminal Procedure.
“A confession may be involuntary under the Due Process Clause only when there is police
overreaching.” Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). “The same is
true for Miranda rights and waivers that apply to custodial-interrogation statements.” Id. at 170.
Accordingly, “due-process and Miranda claims of involuntariness generally do not require
‘sweeping inquiries into the state of the mind of a criminal defendant who has confessed’” but
“involve an objective assessment of police behavior.” Id. at 171 (quoting Colorado v. Connelly,
479 U.S. 157, 167 (1986)). Based on the testimony at the suppression hearing and deferring to the
trial court’s review of the DVD recording that is not contained in the appellate record, we hold the
trial court did not abuse its discretion in determining Gandy’s statements were not the result of
police overreaching.
“Claims of involuntariness under Article 38.22 [of the Texas Code of Criminal Procedure]
can be, but need not be, predicated on police overreaching, and they could involve the ‘sweeping
inquiries into the state of mind of a criminal defendant who has confessed.’” Id. at 172. As the
Texas Court of Criminal Appeals has explained:
[A]rticle [38.22] may also be construed as protecting people from themselves
because the focus is upon whether the defendant voluntarily made the statement.
Period. Does it appear—as Article 38.21 requires—that the statement was freely
and voluntarily made without compulsion or persuasion? Or, in the case of a
custodial-interrogation statement, did the suspect “knowingly, intelligently, and
voluntarily” waive the rights set out in Article 38.22 § 2(a) or § (3)(a)? These
inquiries do not turn solely on police overreaching. The behavior of the police may
or may not be a factor. A confession given under the duress of hallucinations,
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illness, medications, or even a private threat, for example, could be involuntary
under Article 38.21 and the Texas confession statute.
Id. at 172. Because the DVD recording is not contained in the appellate record, we must defer to
the trial court’s findings that Gandy “was not exhibiting any signs of influence or being under the
influence of a drug that affected his ability to give a voluntary statement or voluntarily waive his
rights.” In view of these findings and Detective Carrion’s testimony at the suppression hearing,
we hold the trial court did not abuse its discretion in finding Gandy’s statements were voluntary.
CONCLUSION
The trial court’s judgment is affirmed.
Beth Watkins, Justice
DO NOT PUBLISH
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