Gardner v. State, No. AP-75,582 (Tex. Crim. App. 10/21/2009), AP-75,582.
| Decision Date | 21 October 2009 |
| Docket Number | No. AP-75,582.,AP-75,582. |
| Parties | JOHN STEVEN GARDNER, Appellant, v. THE STATE OF TEXAS. |
| Court | Texas Court of Criminal Appeals |
OPINION
Appellant was convicted of capital murder for shooting his wife, Tammy Gardner, in the course of committing or attempting to commit burglary or retaliation. Based upon the jury's answers to the special punishment issues, the trial court sentenced him to death. On direct appeal to this Court, appellant raises eleven points of error, including the legal and factual sufficiency of the evidence to support his conviction. After reviewing appellant's points of error, we find them to be without merit. Therefore, we affirm the trial court's judgment and sentence of death.
Appellant and Tammy Gardner had a relatively short, but violent, marriage.1 Before Tammy married appellant in 1999, she was very outgoing and happy. After that marriage, she lost weight, became introverted, and lost her sparkle. Appellant dominated, threatened, and physically abused her. His name was tattooed on her inner thigh.
Jacquie West, Tammy's best friend, testified that the one time she visited Tammy's home after the marriage, she and Tammy's daughter, Jessie, were sitting in the living room when appellant came in, pushed Tammy onto the bed, sat on her, choked her with his hand, and then put a gun to her head. Appellant said that if Jacquie didn't leave, he would kill Tammy. Jacquie left and never returned. Shortly thereafter, Tammy sent Jessie to live with her natural father for her safety.
Both Jacquie and Jessie saw injuries on Tammy's face on various occasions. Tammy told Jessie that one time appellant shoved her into a bookcase, then hit her and gave her a black eye. Jacquie said that Tammy once had a large bruise running diagonally across her face. When confronted, Tammy matter-of-factly admitted that appellant had hit her in the face with a hammer. Both had seen appellant "stalking" Tammy at different times.
Tammy told them that "she wasn't getting out of there alive," meaning that she would not get out of her marriage alive. Candace Akins, her boss at the Action Company, a wholesale horse-equipment company, said that Tammy was constantly fearful, nervous, and in extreme financial difficulties. Tammy said that "she wanted out of the relationship," but she was afraid to leave, and she told Candace many times, "I can't leave, he will kill me."
Tammy eventually went to a neurologist complaining of vision loss, headaches, sleeplessness, anxiety, and depression. She told the doctor's wife-who was assisting her husband and who had her own family counseling practice-that she was too embarrassed to tell the doctor that her migraines were caused by physical injuries from her husband. She said that appellant had pulled her hair and hit her both with his fists and with a gun. She was very frightened of him and kept crying, "The only way I'm going to get out of this relationship is by being dead." She explained that appellant had threatened to kill her and her children if she left him.
Finally, in December 2004, Tammy borrowed money from her company to file for divorce. On Christmas day she told appellant to move out, so his parents came and took him and his belongings back to Mississippi. She "perked up" after she filed for divorce, and she began to see more of Jacquie and her daughter Jessie. At work, Tammy marked her calendar for February 7, 2005, the day her divorce would become final, and she would go over to the calender and say,
But she also told Jacquie, Jessie, and Candace that she didn't think she would get to that day because appellant would kill her first. Jessie testified that appellant kept calling and leaving phone and text messages: "Are you going through with the divorce or not?" When Jacquie and Tammy had lunch together at Applebee's on January 20th, Tammy's cell phone started ringing as soon as they got there. It rang constantly, making Tammy upset and scared. She told Jacquie, "He's going to kill me" before the divorce becomes final.
On Sunday, January 23rd, Tammy was driving Jessie home after church when appellant kept text messaging about the upcoming divorce and asking "YES OR NO?" Jessie read the text messages to her mother, who became frantic, but Tammy did not reply to appellant's question. The messages stopped about 5 p.m. Jessie stayed at her father's home that night.
Tammy called David Young, her company's vice-president, early that evening and asked him if she could come talk to him. She arrived around 7:00 p.m. and stayed about three hours, seeking his help in "disappearing" so that no one could track her. Mr. Young was concerned about Tammy's safety, but he felt more comfortable when she called him after she returned home about 11 p.m. According to the phone records, they talked until 11:13 p.m.
At 11:58 p.m., Erin Whitfield, the 911 dispatcher for the Collin County Sheriff's Office, received a 911 call from a woman who identified herself as "Tammy," gave her address, and said she needed an ambulance. Her speech was very slurred and hard to hear, but she said that her husband had either slapped or shot her (Ms. Whitfield wasn't sure until she replayed the tape that the word was "shot"). The woman said that she couldn't hear the dispatcher because her ears were still ringing from gunshots and that her head hurt and "there was blood everywhere." When Ms. Whitfield asked if the person who shot her was still there, the woman said, "No, he left in a white pickup truck with Mississippi plates." She said his name was Steven Gardner. The dispatcher had to yell and repeat herself because the woman sounded like she was choking and vomiting. Then the line disconnected.
Ms. Whitfield dispatched police and paramedics, but it took the police about 25 minutes to arrive because, at first, they went to the wrong address, 3191 FM 2862 instead of 9191 FM 2862. As Deputy Armstrong drove there, he saw a white truck sitting in a ditch by a creek about two or three miles from Tammy's home, but it was only later that he learned that they were looking for a white truck. He was the first to arrive at Tammy's home. He knocked on the doors, but there was no answer, and he could not get in through the windows. He had to kick in the front door. He saw a light on in the bedroom, and, when he entered, he saw Tammy on the bed with a trail of blood leading into the bathroom. She was trying to sit up, but she was bleeding badly from her head and seemed to be in shock.
By the time the paramedics arrived, Tammy was spitting up a lot of blood and mumbling incomprehensibly. She was wearing a red robe. One of the paramedics, Stephanie Taylor, cut the bottom part of the robe off because she couldn't properly assess Tammy's condition while she was dressed. Tammy was flown by helicopter to Parkland Hospital, but she went into a coma, and her family took her off life support two days later. Tammy died from a single gunshot to her head. The bullet had hit her in the front right temple, traveled downward through her brain, and exited below her left ear. Apparently, Tammy had been sitting up against a pillow in bed, and the exiting bullet went through the pillow and out the bedroom window. The bullet was never recovered.
Investigating police found Tammy's house keys-keys that Jessie said her mother always kept in her purse-in a tool chest in the back of her truck parked in the driveway. Nothing else appeared to have been taken from the house. There was no sign of forced entry.
Meanwhile, appellant had borrowed his brother-in-law's white Ford F-150 pickup truck that Sunday afternoon, saying that he was going to visit relatives in nearby Hattiesburg. However, appellant's credit card was used twice that day at a convenience store in Marshall, Texas, which is on the way from Mississippi to Collin County. He apparently bought gas for $28.00 and then made another purchase for $3.86. The backing and store price tag for a pair of Brahma work gloves-an item that the Marshall convenience store sold for $1.49-were later found in the white F-150 pickup. Appellant's fingerprint was found in that pickup as were fibers that were similar in all respects to red fibers taken from Tammy's robe.
In the early hours of Monday, Collin County Det. Cundiff found appellant's father's telephone number and called him in Mississippi. Det. Cundiff obtained appellant's cell phone number and called him at 5:15 a.m. Appellant hung up on him.
Appellant returned to his brother-in-law's home driving the white F-150 pickup at about 8:30 a.m. His sister, Elaine Holifield, had already been told that Tammy had had "an accident." She confronted appellant and asked, "What happened?" He didn't say anything; he just started crying. She asked if Tammy was okay, and appellant said, "Yes." Elaine told him that he had to turn himself in to the police, and he said, "Okay." He showered, changed clothes, shaved, and went first to his parents' home and then to the sheriff's office. Elaine then went to check for her husband's .44 Magnum that he kept under his mattress. It was there, with five live rounds and one spent round. Appellant's brother-in-law testified that he never left spent shells in his gun; he always reloaded it. When appellant turned himself in to the sheriff's office in Mississippi, officers there called Det. Cundiff in Collin County, who said that he did not have a warrant out for appellant's arrest. But he asked to speak to appellant on the phone, and appellant agreed. Det. Cundiff explained that he knew that appellant had been in Texas and he wanted to find out what happened...
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