Gardner, John Steven ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-74,030-01

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EX PARTE JOHN STEVEN GARDNER

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ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. W219-81121-06 IN THE 219^TH JUDICIAL DISTRICT COURT COLLIN COUNTY

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Per curiam.



O R D E R

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.

Applicant was convicted in November 2006 of capital murder committed on January 23, 2005. Tex. Penal Code Ann. § 19.03(a)(2). Based on the jury's answers to the special issues set forth in the Texas Code of Criminal Procedure, Article 37.071, sections 2(b) and 2(e), the trial court sentenced him to death. Art. 37.071, § 2(g). ⁽¹⁾ This Court affirmed applicant's conviction and sentence on direct appeal. Gardner v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009), cert. filed, No. 09-10732 (May 13, 2010).  

Applicant presented five allegations in his application in which he challenges the validity of his conviction and sentence. The trial court did not hold a live evidentiary hearing. As to all of these allegations, the trial judge entered findings of fact and conclusions of law and recommended that relief be denied.

This Court has reviewed the record with respect to the allegations made by applicant. We agree with the trial judge's recommendation and adopt the trial judge's findings and conclusions, except for findings paragraphs 67, 85, and 86. In addition, we do not adopt the phrase, "at China Blue's direction," in findings paragraph 81. We also observe that the word, "first," in findings paragraph 94(c) should be changed to the word, "second." Based upon the trial court's findings and conclusions and our own review of the record, relief is denied.

IT IS SO ORDERED THIS THE 15^TH DAY OF SEPTEMBER, 2010.

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1. Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.