                              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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