Store receipts prove the “victim” wasn’t where she told police she was, checks written by the “victim” prove she was somewhere besides where she testified she was, the State’s version of events was clearly wrong and her own timeline of events proves I could not have assaulted her as she claimed. The evidence offered by the state to support their case came only from the “victim”, my wife’s, testimony. There was no physical evidence, no biological evidence, nor even any trace evidence to link me to the alleged assault that led to my incarceration, yet here I am in prison, an innocent man with a 70-year sentence. These are just a few of the things, and I’ll share more, that my wife lied, schemed and eventually perjured herself about in order to get me out of the way so that she and her boyfriend could take our new house, cars, business and worst of all, my children away from me.
My name is Elmer Howard Whisenant, Jr. and I’m currently incarcerated in Huntsville, TX. In 1997, my wife Tracy began coaching at a private school our children attended and enjoyed her time outside the house. In June or July of 1998, we let our health insurance go due to extremely high premiums of over $1,000 per month. About this same time, Tracy told me she wanted to go to work at Walmart. After discussing it thoroughly, we agreed that she would wait a little longer so that she could spend a little more time rearing our children during their most crucial, formative years. I had been running our business of three Subway sandwich shops by myself for the past 8 years and this required me to work long hours. Because of my long work hours, we felt that the steady presence of their mother was very important to the children.
Tracy approached me again a couple of months later about working outside the home, saying that if she worked at least 20 hours per week at Walmart, she could get affordable health insurance for our family. She said that she could work two ten-hour shifts a week and could work them in the evenings so that it wouldn’t interfere with her coaching or her ability to be with the children during the day. In August of 1998, Tracy went to work at Walmart even though I wanted her to work in our family business. She said it was for the insurance, but I had already been shopping around and had found an affordable policy for us. I bought the policy and it went into effect on September 2, 1998. Despite this, Tracy went to work at Walmart and specifically asked for an assignment on the night shift as a grocery stocker and worked 35 hours per week. She told me she had to work that many hours to qualify for insurance, but I later learned that was not true, only 20 hours per week are necessary. Tracy later testified that the job at Walmart was a way for her to get money so she could get away from me, but the fact is, she used that money to buy a new fence for the front of our property. She told me she wanted something to show for her efforts and the fence was it. At this time, I had no reason to believe anything was going wrong, as Tracy was a strong willed individual who made her own decisions and went her own way. She had decided that she wanted to work the night shift at Walmart and that was that, there was no room for argument.
It wasn’t long before Tracy was working five or six nights per week, saying that the store was short-handed and really needed her help. She would arrive home from work after the children had left for school, causing me to be late for work or her mom to have to come over to get them ready for and off to school. At this time I was suffering from ulcerated colitis and had lost 45 pounds during the previous six months due to the illness. I was literally sick and tired and I was resentful that Tracy was putting the needs of her job above those of her family and because of this, I gave her the cold shoulder at times. I must admit that because of the illness, my sex drive had fallen to almost nothing. Tracy‘s sex drive, on the other hand, seemed to be getting much stronger.
Tracy truly seemed to enjoy her work at Walmart and I felt that overall, it was good for her. She enjoyed the association with her co-workers, the responsibility, the feeling of being needed and the physical challenge of being a stocker. The job also helped her lose some weight, which caused her to feel better about herself.
On September 19, 1998 at 10:42 a.m., I received a call from Tracy stating she had hurt her wrist and shoulder and was on the way to the doctor’s office. She was evasive about details on the phone, but I knew her well enough to know that if she was going to the doctor, it must be a pretty bad injury. I had been at home with the kids, watching Country Music Television when Tracy had called and I called my mom and asked her to take me to meet Tracy at the doctor’s office in Burleson, TX. When mom and I got to the doctor’s office, I went inside to see about Tracy but she wasn’t there. When I went back outside, I saw her sitting in our Suburban. She looked terrible, as if she had been badly beaten. Her upper and lower lips were swollen, as well as her right eye. Her arms had claw marks that looked like they were caused by fingernails. I asked her what had happened and if she had called the police yet. She said someone had tried to kidnap her and steal the Suburban but she hadn’t called the police yet. I used the cell phone to call the police, as I wondered why she hadn’t called them herself. According to police reports, my call came in at 11:14 a.m. and a few minutes later the police arrived.
When the police got to the doctor’s office, they separated Tracy and I. The officer with me examined my hands very thoroughly, looking for evidence that I had struck Tracy, but no evidence was found because I hadn’t hit her, I’d been at home taking care of my children. The officer checked my hands several times and found not one thing that would suggest I had hit my wife. While at the doctor’s office, Tracy told the police she had left Walmart around 10 a.m. and produced a receipt with her name on it showing she had made a purchase at 9:53 a.m. Later, an officer came and escorted me to another room, where I was asked to disrobe down to my underwear so that they could look me over for injuries. They explained that this was routine procedure in these types of cases and they needed do it to eliminate me as a suspect. Of course, they found nothing wrong with me so they released me to take Tracy home.
After Tracy was released from the doctor’s office, we led one of the officers to the Eckerd Drug Store parking lot where the alleged attempted abduction and carjacking had taken place. We then went to the police station to give a statement and to fill out a report. The police took pictures of Tracy’s injuries while we were there at the station. They also allowed me to call home and get the exact time Tracy had called me off our caller ID — 10:42 a.m. When we were on the way home, I noticed another Walmart sack in the Suburban and found a receipt in it marked 10:01 a.m. I asked Tracy about it and asked why she told the police she had been attacked at 10 or 10:30, when she should have known it was closer to 10. For some reason, the question really upset her and though I don’t recall exactly what she said, I took it seriously enough that I never mentioned it again.
Looking back, I belive that Tracy was hiding from me, and the police, what really happened to her after she checked out of Walmart at 10:01 a.m. and before the time she called me at 10:42 a.m. She was vague with the time because she did not want it known that 41 minutes had passed from the time she left Walmart until the time she called me. The police would have had more questions about what happened during that timeframe. There were no security tapes or witnesses to indicate that she made any purchases after the assault. The only valid conclusion is that the assault took place after she finished her shopping. The 41 minutes would have allowed for the events, to which Tracy testified, to have taken place. It would have been impossible for me to have met her in the Walmart parking lot, ride around town with her, assult her in the BHS parking lot, walk back to Walmart to get my car, and then drive home so that I could receive her phone call.
The 9:53 a.m. receipt was mentioned during my trial and is a part of the Burleson Police Department’s report; Tracy first claimed that anyone could have made the purchase using her employee discount card, saying that the receipt meant nothing because it didn’t bear her actual signature. Tracy later stated that I had made the purchase in order to make my story more believable and “besides, his car was still at Walmart.” I’d caught her lie because my car was NOT at Walmart; my mom had driven me to get her so my vehicle was still at the house. My attorney did not pick up on her misstatement; therefore he didn’t bother to ask her how my car could be in two places at once. Detective Raines of the Burleson Police Department mentioned the receipt in court, but it was not offered because he didn’t have the receipt with him. My mom was able to obtain copies of the two checks Tracy wrote that day. Each check has the time and date stamped on them, as well as Tracy’s signature, proving that she was shopping at Walmart at 10:01 a.m. Because of the driving distance between our home and where she stated the attack occurred, it is absolutely impossible for me to have been the person that attacked my wife. We had planned on presenting this key evidence in my new trial, but due to mix-ups with the bank, copies of the checks did not arrive until two days after the hearing.
When I took Tracy home from the doctor, I nursed her and comforted her. I had never seen anyone beaten so badly in my life, but she was adamant that she was going to go to work that night. She said she was not going to let that guy take control of her life. I now believe she had to get her story straight with the person that had beaten her. According to police reports and trial testimony, there was a rumor going around the Walmart store that she was beaten by her boyfriend that she’d been seeing outside her marriage. Soon after that Tracy and/or her suspected boyfriend, Mike Gamble started a rumor that I had been the person that beat Tracy. A forensic report obtained after my trial states that Tracy’s attacker was a large male with large hands and more than likely, this person was left-handed. I am 5’5” tall, have small hands, am right-handed and weighed about 150 pounds at the time due to the ulcerated colitis. Additionally, I had no signs of trauma to my hands or body indicating that I had struck anyone or been struck or scratched by a defensive blow from anyone. After my arrest in September of 2000, I learned that Tracy’s reported boyfriend, Mike Gamble, was 6’ tall, weighed over 200 pounds and possibly left-handed.
In her report to the police on October 21, 1998, it is noted that Detective Raines asked Tracy if I was the person that beat her up. She would not say that I was, but would say things like “I cannot tell you, he has lots of money,” or like, “My dad works for him…” She never directly said I was the one, but by playing her cards right and being evasive in her answers she convinced the police that I was the one that did it, thereby lessening the likelihood that they would look closer at her boyfriend. There was an undeveloped lead in the Burleson PD report that said Tracy was beaten by her extramarital boyfriend.
In November of 1998, Tracy and I were called to testify in front of the Grand Jury. After waiting in the courthouse for over four hours, they called Tracy, who testified for maybe 5 minutes, then we were told we could go. I then confronted the DA and Detective Raines, expressing my concern for the inadequacy of their investigation. Detective Raines began accusing me of assaulting Tracy and I told him he was a “Looney Tune” if he thought I would harm my wife and that I was innocent. At this time I was called into the Grand Jury room and asked if I had assaulted Tracy and I said, “No!” and that their detective was a loony tune for thinking so. I still didn’t understand why they called me to testify after I’d been told I could leave. They told me that I was their only suspect and that they would not investigate any further until they were sure that I hadn’t done it. I was told that the only way I could help prove my innocence was to take a polygraph test to eliminate myself as a suspect and if I passed it, they would look at other possibilities. I agreed at the time to take the polygraph test.
On the way home, Tracy told me of a time her dad had failed a polygraph test at work and she convinced me that they weren’t totally reliable. She also said she was worried that my health might affect the test results. She clearly did not want me to take the polygraph test. I thought this was out of concern for me so I called an attorney, Dick Turner, to ask his advice. Mr. Turner said nothing could be gained by taking the test if I had not been charged with a crime, and that I should not take it. I took his advice and did not take the test. We heard nothing more from the DA or the detective.
Tracy continued to work for Walmart through about December of 1998 on a full-time basis. After that, she worked for them off-and-on through about March of 1999. During this time, she developed a close “friendship” with her coworker, Mike Gamble. At first I thought nothing of it, after all, we had been married for over sixteen years and I trusted her. Love IS blind. Mike spent Thanksgiving of 1998 with her family and us. He came over to our house during Christmas-time and hung out. He even helped me put my sound system together. It was at this time that I noticed a change in Tracy’s behavior. For one thing, she had never allowed me to keep beer in our refrigerator because she was afraid of what her mother would think if she saw the beer. However, she now wanted to keep beer in the refrigerator so that she could offer Mike one when he came over. She said she did not want her new friends to think that she was a square.
Sometime in the spring of 1999 Mike quit his job at Walmart and began working as a cross-country truck driver. We had an extra cell phone from the business and Tracy asked if Mike could use it because he could not get one on his own. I saw no problem with it and gave him the phone to use temporarily, until he could get his own.
A few months later, I was reviewing the phone bills and noticed that Tracy and Mike were spending an excessive amount of time on the telephone together. The calls were costing hundreds of dollars per month. I brought this to her attention and she told me that they were “just friends” and that he made her laugh while all I wanted to talk about was bills, or money or the business. At that point, I promised myself I would try to make our conversations lighter and more fun, and not bring up the issues of money, bills and business again. Mike soon told me he could not afford the cell phone and gave it back to me, however, he and Tracy continued to talk on the phone and hang out together. In December of 1999, the proverbial writing was on the wall and I wrote Tracy a note telling her that I loved her, but if she was not happy with me and wanted someone else in her life, I would let her go. She wrote me back and told me that she was disappointed in me for letting her go so easily and that I thought so little of our relationship and she told me that she was not interested in another life. We never discussed the letters or the subject in person, only in writing.
During the middle part of 1999, our sex life became very active, more so than it had been during most of our marriage. Tracy had turned from being a very modest person to being a very provocative person in the way she dressed, acted and talked. I even found some how-to sex books under her side of the bed. Somewhere around January 2000, our sex life came to a sudden stop. She had many reasons for not being able to have sex – mainly health related ones. She told me she was going to the doctor for the problems, yet her medical records show otherwise.
In December of 1999, I again approached Tracy about a divorce, this time face-to-face, and I asked her straight out if she was having an affair with Mike and she, of course, said no. Some of the kids overheard the conversation and every time after that, when I tried to talk to her about our relationship, she would take the conversation to where the kids could hear. The relationship between Mike and Tracy seemed to slow down, but I found out soon enough that she was just getting better at hiding it. In June or July of 2000 I became aware that she and Mike were still talking a lot on the phone. I have since obtained telephone records showing that she called Mike on his pager over 270 times in August and September of that year. At some point during this time, I confronted Mike and Tracy and told them that I did not want them seeing or talking to each other at all. They both thought this was funny and laughed in my face. Tracy then began a rumor campaign saying that I would not allow her to have any friends. She told this to our children repeatedly. Even after all this, I still didn’t think she was actually having an affair. After all, she had given me no reason to doubt her in our 16 years of marriage, or if she did, I was too blind to see. Now I really don’t know which is true.
In May or June of 1999, Tracy announced to our entire family and me that she would like to be a flight attendant for American Airlines. She said it was a childhood dream she had shared with her cousin, Carla. The job seemed like something Tracy really wanted to do, so I gave her my support and helped her apply for the job. I even bought a resume-writing program for our computer and helped her put together an application packet.
**The following never happened, though Tracy convinced everyone that it did. **
She applied for the job and after three or four interviews; she was offered the opportunity to attend training school in July or August of 1999. The class was to last six weeks. She claimed she took the test and scored second highest in her class overall but scored only a 78 on the final exam, causing her to fail the test by 2 points. I then helped her write a letter to the board asking for reconsideration but the best they would do is allow her to take the next training test and start the process all over again. That next class was postponed several times but finally started in November of 1999. The told her that now she would have to take six to eight training flights instead of three and now DFW, as a home base, was filled by the previous class and the home base options for Tracy would be San Juan or California unless she was willing to fly standby for up to two years while waiting for a DFW job to open. She completed the training class and all the training flights, the last of which was in March of 2000. In May of 2000, Tracy took a flight to San Juan to check the city out as a potential home base. (This all seemed so real. She’d leave out every morning for class, sometimes in a panic because she was running late. She would tell stories about what she did and the people she was in class with, about the flights and the places she went. She told the stories in such detail that they were believable. She did not call home much, nor did she buy the kids anything from the places she went. She said that in their classes, they were taught the importance of not using up their salary on phone calls and gifts.) Although her training ended in March of 2000, she put off taking an assignment until August 7, 2000, our oldest daughter’s 17th birthday. Tracy told me from the start that trainees do not get paid and I had no reason to doubt her. She took a six-month assignment on August 7, 2000 for the San Juan home base. Tracy had almost $2,000 to set up housing in San Juan and she was to share an apartment with two other women. She left for San Juan and I only received one or two calls from her during that entire week.
As I said, none of the above was true, but she convinced everyone that it was. I believe now that she was training to be a bartender and was working in a nightclub. I believe the training flights were used as cover so that she and Mike could get away together. I have acquired records of hotel stays that coincide with her “training flights” and her two “stand-by flights” along with her scheduled “flight to San Juan.”
On August 14, 2000, Tracy called me at work from our home. She told me she had quit American Airlines; that she could not handle it and that they had not done what they had promised. I told her not to throw away her dream and all that she had worked for over the past year and to ask them if they would allow her to fly stand-by as they had offered earlier. On August 23, 2000, she “went to talk to them” and they put her on a flight from which she did not return until August 28th. She left again on August 31st and except for seeing her in court, this was the last time I saw my wife. Remember, she never worked for American, and their records will verify this.
I got home from work on September 5th and the kids told me I had just missed Tracy’s call and that she really wanted to talk to me. Needless to say, I was very disappointed I had missed her. After feeding the kids and putting them to bed I overheard a conversation between my daughters that would change my life forever. I heard them say that Tracy was not in Atlanta, she was in the area and she was not coming home for a day or two. They said she had been to visit a guy named Gary in Oklahoma and Janey, our oldest daughter, had given money to Mike to give to her. I was confused. Why would Tracy tell me she was on a flight to Atlanta when she wasn’t? Why would she have Janey give money to Mike to pass to her? I didn’t know what to think or do. They had already fallen asleep by the time I decided, so I woke my two oldest daughters and asked them what was going on. All they would tell me was that their mom was in Atlanta, GA. I drove around for a few hours looking for Tracy but never found her. I left a message on her cell phone asking her what was going on. I felt very unwanted for reasons I didn’t understand and I ran away. I took our RV and drove to our place in Matagorda, TX, stayed there a few hours, then decided to head back and face the situation.
When I got home, I found that Tracy and the kids were gone. While I had been gone to Matagorda, she had filed charges against me, saying that I had assaulted her on August 31, 2000, and that I had been abusing her since 1985. Two days later, I was arrested while talking toTracy’s dad in his driveway. I was asking him if he knew where Tracy and the kids were and why they had left. He told me he could not help and that Tracy had told him that I had beaten her. I told him there was no way I would hit Tracy and that I would never hurt her and that he should know me better than that, after all these years. He said that Tracy was his daughter and he didn’t know what to think, but for him to believe me would mean he was saying his daughter was a liar. He then told me he would take care of my business for me and that I should get away for a few days – maybe go to the coast. I believe he was hinting for me to leave before the police arrived and arrested me.
The court issued a protective order at Tracy’s request on September 5, 2000 and I have not seen my children since. My family and I pleaded for my civil attorney to schedule supervised visits between the kids and me and although he agreed to, he never did so. Tracy in turn used this against me and told my kids that I had abandoned them by choice. I was put in jail from September 8th through September 19th of 2000. Between September 20, 2000 and December 31, 2000 Tracy made several false charges against me ranging from my “shooting the dog“ to breaking into our house, to running Mike off the road, all of which were found to be baseless by the police. They never charged me or tried to revoke my bond, which would have happened if they took any of her accusations seriously. I had rock solid alibis for the times she said the offenses took place and one such alibi includes over 100 witnesses I was sitting in a church with at the time the alleged offense occurred.
On January 11, 2001, Tracy delivered her next-to-last big strike. This was the day of her Civil Court ordered deposition, which she had found several excuses to avoid. Mike Gamble, her boyfriend, was in the hospital due to a wreck he had been involved in on December 31, 2000. On that morning, between 3 a.m. and 4 a.m., Tracy was shot in the leg and was allegedly attacked in her parent’s home. Her story was that she had decided to go over to their house to pick of some of the kids things at around 2:30 a.m. The operator asked her at least 15 times during the 911 call who shot her; each time she gave an off the wall answer. She told police at the scene that she did not know who shot her. While at the hospital, Detective Gaudette and the doctor accused her of shooting herself. They described her as combative and they had even found a bullet of the same caliber that shot her (the only one that had not been in the gun) in her jeans pocket. After the bullet was found, she told Detective Gaudette that she would give the DA a full statement the next day and that her attorney had advised her not to talk to the detective at this time. It had been raining that morning prior to the alleged assault, but there was no evidence found at the scene, inside or out, that indicated anyone besides Tracy had been at the house that morning. I was in my apartment located 20 miles away, inArlington, at the time of the alleged assault, as verified by two witnesses in my apartment, confirmed by AOL records and further confirmed by a phone call from the scene as Tracy was being carried away in an ambulance.
On January 12, 2001 Tracy finally gave a statement to the DA and Detective Gilreath in which she claimed I was the person that attacked and shot her. She claimed I was waiting for her at her parent’s (remember she earlier said she decided to go there on the spur of the moment) house when she got there fought with her, threatened to kill her, picked her gun up off the floor, pointed it at her head, then pointed it at her stomach when she slapped it away and it went off and I allegedly ran away from the house. Remember that the police had already checked the house for intruders and had found no footprints in the mud, no tire tracks other than Tracy’s and found nothing to indicate anyone else had been there. If I had shot her, why didn’t she tell police that to start with?
The police notified Tracy that I had two witnesses to verify that I was miles away at the time of the assault. Tracy then had Janey, my oldest daughter, and a co-worker of my alibi witnesses try to get them to say that they didn’t know for sure if I was there or not, that they had been sleeping. Tracy called Subway, where Janey worked, on January 13, 2001 to instruct her on how to deal with my alibi witnesses. My witnesses were Justin Gray and Cindy Torres; both were my employees and roommates in my apartment. Janey knew both of them and considered Cindy to be a very good friend. During this time, Tracy was brainwashing my children, telling them lies about what was happening and that I didn’t love her or them. Since I was absolutely prohibited from seeing them, the kids got no balance, no counterpoint toTracy’s lies and so they began to believe her. I also discovered Janey was dependent on Tracy more than I realized, because Tracy was providing her with prescription narcotics which I believe Janey was addicted to at the time.
Five weeks later, the State gave Tracy a polygraph examination after which she told the examiner that she was also sexually assaulted on January 11, 2001. She had not mentioned this to anyone prior to this time and no evidence of a sexual assault was noted or mentioned when she was treated for the self-inflicted (Doctor’s words) gun wound to her leg. I believe she staged the entire shooting event because she didn’t feel the system was working fast enough to put me away and she was concerned I would be able to make contact with the kids and would get our divorce finalized and she would lose the assets she wanted so badly – our kids, our house, our cars and business.
I was arrested three days later, on February 19, 2001 and have been in jail ever since. I decided not to post bail because Tracy had already shot herself in the leg to get me locked up and I was terrified that she would “up the ante” next time and harm one of the kids and say I did it. I later heard while in jail that she had laid out a scheme wherein I would meet her somewhere to discuss a divorce and she was going to have her boyfriend there to protect her and I was going to “assault” her and Mike would shoot me in her defense. I thought this was just “jail talk” until I found out that she called my insurance agent to verify the amounts and beneficiaries on my life insurance policy. The policy was worth over $600,000.
I was offered plea bargains ranging from 15 years in prison, all the way down to 5 years, but I refused them all outright. I was innocent and I firmly believed that all the lies Tracy told would be brought out in court and that justice would prevail. I was wrong, but even with the 70-year sentence I was given, I still do not regret my decision to stand up for the truth and to refuse to accept a plea bargain for a crime I didn’t commit.
This is just a summary and is not meant to be a detailed report. Additional information, documentation and anything else you may need is available upon request. Thank you for your time and consideration.