Gardner, John Steven

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,582

JOHN STEVEN GARDNER, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM CAUSE NO. 219-81121-06 IN THE 219TH DISTRICT COURT

COLLIN COUNTY

Keller, P.J., filed a concurring opinion in which Meyers, J., joined.

A statement is a dying declaration if it is "made by a declarant while believing that his death is imminent, concerning the cause or circumstances of what he believed to be his impending death." (1) I find absolutely no evidence in this case that Tammy Gardner believed that her death was imminent when she identified appellant as her attacker.