Jeffery Deem, a technology specialist, used the Encase program to make a copy of the computer's hard drive and then performed a keyword search. We need not reiterate the evidence. If there is evidence, however, from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State has proved that the murder occurred in the course of the robbery. He insisted that he be shown only vacant houses. He told the officers that he had a Christian rock band called Broken Silence, and that on the afternoon of November 15, 2001, he had driven to the KNLE radio station in the northwest section of Austin to discuss a Web site. 20. Prosecutors said Russo frequented Internet sites that contained stories and photos about asphyxiating women. ref'd))). Cranford put her Great Dane dog in the study. A Bastrop area telephone service representative testified about cell phones registered to appellant and his wife. 10. P. 33.1. He qualified as an expert witness for the State. Many of realtors were uncomfortable while showing homes to the man. The grave site of Diane T Holik / Plot 14310373. In making his factual sufficiency argument, appellant continues to argue that there was insufficient evidence to establish robbery during the course of a murder. The Dateline NBC episode "After the Storm," investigates the November 15, 2001 death of Diane Holik. At some point, Rector was able to parse the Internet history relating to necrobabes.com and determine the dates and times on which the computer had accessed the necrobabes.com Web site on the Internet. During the course of their investigation, the police learned that, on November 15, 2001, some Great Hills residents, who had for sale signs in the front of their houses, had been approached by a man who claimed to be interested in buying their homes. There was an extensive crime scene investigation at the victim's home. She said, this guy just left. When asked about the length of time from when the man had been there to when you talked to her (Holik) on the phone, Barajas responded, Just moments.21 Barajas testified that Holik told her that she [Holik] had plans to meet this man and his wife the following Saturday to show her house. His complaint about the testimony provided by Melody Blount, Annette Beeler, Connie Morton, Stephanie Nichols, Kathleen Hamlet, Sandy Menley, and Johna Ramirez is based on contact with appellant alleged to have occurred in May 2001. In analyzing a challenge to the legal sufficiency of the evidence, a reviewing court does not realign, disregard, or weigh the evidence. Cranford invited him into the house. Dr. Coons was presented with a hypothetical scenario based on the evidence admitted at trial (except evidence of robbery). Appellant only worked there about thirty hours a week, but appellant voluntarily quit that job. at 224. State's Exhibit 621 was also generated by Rector and showed Internet activity on the computer on April 27, 2001, with the user-profile of a Patrick Russo and with the use of the AOL (America Online) engine to search for a subject associated to asphyx. To this exhibit, appellant expressed no objection. This exhibit is not before us for consideration of its relevancy. An earlier membership had been issued on February 28, 2001, to a Janet Russo at the same address. With Schwalebert's permission, Detective Rector, on a lab computer, went on the Internet to the paid portion of necrobabes.com and downloaded all the photographs and stories that appellant had viewed on the Web site, as reflected by the Internet history of his computer. Before conducting any examination of the computers, the police obtained a search warrant to search the files on the computers for names, telephone numbers, ledger receipts, addresses, and other documentary evidence pertaining to sale and distribution of controlled substances. Id. Cranford and appellant went to the son's bedroom. He then sat down and covered his face with his hands. Each membership was paid with a credit card traced to appellant. The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires every state criminal conviction to be supported by evidence that a rational trier of fact could accept as sufficient to prove all the elements of the offense charged beyond a reasonable doubt. ; Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). For murder to qualify as capital murder in the course of a robbery, the killer's intent to rob must be formed before or at the time of the murder. Walser, 275 F.3d at 983-84. The basis of this latter ruling was the state of mind exception to the hearsay rule. Under the Fourteenth Amendment, the task of the appellate court is to consider all the evidence in the light most favorable to the verdict and determine if any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense. Appellant received approximately $50.00 a week for his work at the church. Cardenas v. State, 115 S.W.3d at 62-63. If error was preserved, it was during pretrial hearings. When she learned that the sale price was $270,000, she stated that the price was way out of their range.. Log In. United States v. Carey, 172 F.3d 1268, 1271 (10th Cir.1999). He gave the name of Jim Taylor. Penal Code Ann. Holik's death story has been highlighted on the episode of Dateline. He became sweaty and very shaky, and there was a strange look in his eyes. Hon. The Tenth Circuit clarified and expanded its Carey decision in United States v. Campos, 221 F.3d 1143 (10th Cir.2000), and United States v. Walser, 275 F.3d 981 (10th Cir.2001). Assuming that the objections were timely made, see Tex.R.App. In evaluating the trial court's determination under Rule 403, a reviewing court is to reverse the trial court's judgment rarely and only after a clear abuse of discretion, recognizing that the court below is in a superior position to gauge the impact of the relevant evidence. Diane was a New York native who moved around the country a lot, thanks to her work. Proc. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005); Clewis, 922 S.W.2d at 134. The proponent of evidence usually has the original burden of showing that it is relevant and admissible. After having been first interviewed by Austin police officers, appellant discussed the matter with Pastor Fox, telling Fox that some jewelry was stolen in the offense, but the police had not communicated that information to appellant. In his interview with the police, appellant asked them what motive he would have to kill Holik, a woman that he did not know. The State may prove its entire case by circumstantial evidence alone if it proves all the elements of the charged offense beyond a reasonable doubt. The legal sufficiency of the evidence under the Jackson standard is a question of law. If the appellate record reveals criteria reasonably conducive to a risk that the probative value of the tendered evidence is substantially outweighed by unfair prejudice, then the trial court acted irrationally in admitting the evidence and abused its discretion. The jury may accept or reject all or any part of any witness's testimony, Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App.1998), and resolve any conflicts in the evidence. At the hearing in the jury's absence, Barajas testified that when Holik answered the telephone, she (Barajas) heard a commotion. This evidence was not repeated before the jury. Holik had plans to meet on the weekend with a man who was leaving her house when she talked to Barajas on the telephone. In such an analysis, we view all the evidence in a neutral light. ref'd). The phone number (570) 427-4098 (Verizon Pennsylvania, Inc) is Diane's. See Diane Holik Vanmil's age, phone number, house address, email address, social media accounts, public records, and check for criminal records on Spokeo. Rector explained that the only way to do that was to recover the entire Internet history and go through that basically by hand, look at it to see what is real estate and what is not. Detective Rector reviewed the temporary Internet files and the index.dat files to determine the computer's Internet history. Copyright 2023, Thomson Reuters. In the absence of the jury, the trial court conducted a hearing on Barajas's testimony and made its rulings. More than 136 such documents in the temporary Internet files folder or unallocated clusters (deleted files) were located. pet.). Diane Holik: 5 Fast Facts You Need to Know Patrick Anthony Russo, Diane Holik's Killer: 5 Fast Facts You Need to Know. She described appellant as opening the closet door and then dropping his arms to his side and just standing there without saying anything. Some witnesses testified that they were nervous or uncomfortable during and after the encounters and testified about remaining on a cell phone, staying away from appellant, staying at the front door, going to a place where they could be heard if they screamed, or calling the police or family members after the encounter. 313, 508 A.2d 976, 985 (1986); State v. Flesher, 286 N.W.2d 215, 216 (Iowa 1979)). Plenty of dogs at Midland Animal Services are waiting for their furever home. But a second look at the crime scene would reveal a possible hint to the killer's identity. Thus, the jury may infer the requisite intent to rob from the conduct of the accused. He did not resume the search and find the rest of the nude images of children until after a second search warrant had been issued. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986); Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). 404(b).20 The trial court gave limiting instructions to the jury that are not the basis of the complaints here. This was so because after the accidental discovery of the illegal pornography in the first JPG file, the detective opened subsequent JPG files expecting to find child pornography and not material related to drugs. In his brief, appellant urges that the evidence admitted over his hearsay objections had no relevancy to any material issue in the case. In the other part of this point of error, appellant claims that the trial court erred in its pretrial ruling concerning the admissibility of certain testimony of each of thirteen witnesses under Rule 403. The evidence indicates that Holik's dogs had been confined in the house for some time. It was shown at trial that she wore the charm on a necklace. Cranford left and let the dog out of the study because she was uncomfortable. Cranford was close to him. The search recovered eight images of child pornography including the two transmitted ones. Nethery, 692 S.W.2d at 706; Thompson, 59 S.W.3d at 808. See Tex.R. Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. Rector was able to download these introductory screens, and these exhibits were admitted into evidence. In Campos, the officers learned that the defendant had transmitted two images of child pornography from his computer. See Tex.R.App. It was the State's theory that when appellant came to or returned to the victim's home on November 15, 2001, it was raining heavily and the towel had been given to him and then left in the living room. Any such contention is inadequately briefed. There was evidence that appellant's wife inquired about property in Bastrop County. DIANE HOLIK Owner Reviews Write Review There are no reviews yet for this company. Appellant was released after 8:00 a.m. on November 21, 2001. He had pleaded innocent. Patrick Russo, 40, faces life in prison or possibly the death penalty when sentenced next week. There were no trial objections to the subject matters advanced in this point of error. A Travis County jury convicted a part-time music minister of capital murder Friday in the strangulation killing of a woman who believed she was showing her home to a potential buyer. Barajas, from Los Angeles, California, testified before the jury that she was an IBM coworker with Diane Holik. There are two ways in which a court may find the evidence to be factually insufficient: if the evidence supporting the verdict is so weak as to make the finding of guilt clearly wrong or manifestly unjust, or if the verdict is against the great weight and preponderance of the evidence. Rector examined the computer with a program called Encase, which is designed to recover any data located on a hard drive, whether it is an active computer file or a previously deleted file. Evid. Id. Rule 403 more strongly favors admissibility than did many of the earlier formulations of the appropriate balancing test, with the opponent of the evidence bearing the burden of showing that the probative value is substantially outweighed by countervailing factors. 1 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Texas Practice: Guide to the Rules of Evidence, 403.1 (3d ed.2002) (citing Yohey v. State, 801 S.W.2d 232, 236 (Tex.App.-San Antonio 1990, pet. Questions, as here, of when testimony becomes too remote and, therefore, irrelevant are left to the sole discretion of the trial court. Cynthia Barajas, a coworker from California, testified that she contacted Holik by telephone about 12:30 p.m., Austin time, on November 15, 2001. Moreover, there was evidence that at the time of the murder, appellant was in dire financial straits. On June 18, 2003, a search warrant was issued authorizing the search of appellant's home and the seizure of his personal computer and its content. The computer was seized pursuant to the warrant. See Tex.R. Born September 10, 1958 Died November 16, 2001 (43) Add photos, demo reels Add to list Credits IMDbPro Archive Footage Previous 4 Homicide: Hours to Kill Self - Victim (archive footage) TV Series 2018 1 episode Patrick Anthony RUSSO, Appellant, v. The STATE of Texas, Appellee. He was able to view information about the payment of fees and the purchase of a membership on the Web site. Barajas testified that she warned Holik not to let strangers in her home when she was alone. He stood quietly with his attorneys upon hearing the verdict. He was interviewed during the transport and at the station. Tex.R. As earlier noted in the discussion of the fifth point of error, a general relevancy objection does not preserve an extraneous-offense claim under Rule 404(b) of the Texas Rules of Evidence. A trial court's evidentiary ruling on a hearsay objection must be upheld absent an abuse of discretion. 2157, 72 L.Ed.2d 572 (1982)). The 43-year-old worked for IBM as an executive, ultimately settling in Austin in 1996. Some 1,200 necrobabes.com related images were recovered.6. McFarland v. State, 845 S.W.2d 824, 837 (Tex.Crim.App.1992). 8. Includes Address (9) Phone (1) See Results. Commonwealth v. Marshall, 287 Pa. 512, 135 A. Reviewing courts are not fact finders. According to her, appellant said that during the storm, he stopped at a house to ask directions and a lady came to the door, that it was raining hard, and that she was kind of bothered about his being there. Maldonado, 998 S.W.2d at 243. Susan Fox, the pastor's wife, testified about the same conversation. at 1270. Barajas related that Holik gave an explanation for why she was late. And, with the engagement ring aside, appellant questions the credibility of the testimony concerning the other missing jewelry. He testified that he hypothesized the coincidental chances of obtaining the same nuclear DNA results in this case would be one in 16,817. To establish the murder portion of the charged offense, the State must prove beyond a reasonable doubt that the defendant intentionally or knowingly caused the death of an individual as charged in the indictment. Appellant's known fingerprints matched the prints on the black-and-white flyer and prints on the flyer box in Tammy Cranford's yard. Appellant then asked several times when Cranford's husband would be home. This account has been disabled. While the title appeared suspiciously suggestive and implicitly of a sexual nature, it did not appear to be criminal or of an incriminating character in and of itself. The evidence shows that appellant and his wife had a $199,000 mortgage on their trailer home in Bastrop.4. Upon inquiry, the defendant told the officers that the computer contained child pornography. He further complains that the testimony provided by Tammy Tayman and Holly Dittart are based on contact with appellant, alleged to have occurred in August 2001. The Dog Owner's Home Veterinary Handbook The Complete Dog Book for Kids. She was excited about the real possibility of selling her home. On the second occasion, Ramirez noted the license plate of the Ford minivan that appellant was driving. The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. In a legal sufficiency review of the evidence, the jury's inference of intent is afforded greater deference than evidence supporting proof of conduct. Holik's realtor and neighbor, Lakki Brown, saw the police officers. [C]ontemporaneity of the event and the declaration by itself, should be a sufficient guarantee for admissibility Contemporaneity of the event may be inferred circumstantially. 2 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Texas Practice: Guide to the Texas Rules of Evidence 803.2 (3d ed.2002) (citing Vanderhorst v. State, 821 S.W.2d 180, 183 (Tex.App.-Eastland 1991, pet. 401.Rule 402provides:All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. 2737). Mental culpability is of such a nature that it generally must be inferred from the circumstances under which the prohibited act occurred. 12. Using this number, the police were able to identify appellant as the man they were seeking. The company's filing status is listed as Forfeited Existence and its File Number is 0800520616. Brady Mills, the supervising criminalist at the Department of Public Safety (DPS) laboratory in Austin, extracted DNA from a swab of the victim's left hand. He said that he did not enter any houses. Appellant relies upon his hearsay objections at the hearing to preserve any error, because he made no further objections when Barajas testified before the jury shortly thereafter. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000); Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). Her nineteen-month-old son was in the master bedroom and her three-month-old daughter was in the nursery. Holik was a supervisory employee of IBM and worked out of her home. Many of the homeowner-witnesses were able to identify appellant as the man who came to their homes, wanting to see the house or a floor plan, saying that he would be a cash buyer, having just sold a ranch, rejecting the idea of contacting a realtor, and frequently saying that he would return with his wife on the weekend. Diane Tasker-Holik. In properly construing the entire Internet history, Rector observed references to necrobabes.com. The plain view doctrine applies only to seizures, not searches. Russo, a part-time music minister, pretended he was interested in purchasing. ref'd). Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex.Crim.App.2000). The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. As appellant acknowledged, this was a Web site which is open to any user of the Internet. State's Exhibits 623 through 724 were copies of images and stories that Detective Rector, with a lab computer, recreated from the Web site necrobabes.com using information from the Internet history of appellant's computer as to when appellant accessed the Web site. See Tex.R.App. She had been tied up and strangled, an autopsy report confirmed. We find no such motion or pretrial ruling thereon. See Tex.R.App. 403. Several of the Internet pages related to the realtors who testified at trial. Tex. Dogs inside the house appeared to have left fecal matter on the carpet, indicating that they had been confined for some time. Dateline: Who Is Tony Russo Murderer? She saw a gold or champagne-colored minivan pull up to the for sale sign in the yard. At the pretrial hearing, appellant's trial counsel told the trial court that he first wanted to hear the testimony of Detective Roy Rector, the forensic computer expert, and then tailor his motion to suppress accordingly. Appellant overlooks the fact that at no time did he advance any relevancy objection at trial as required. He then inquired whether there was a husband or boyfriend with whom he could deal. The books were purchased in memory of Diane T. Holik, our fellow classmate, who we all know now, lost her life tragically on November 16th, 2001. ref'd) (finding no abuse of discretion in admission of prior statement by murder victim that he intended to go to defendant's shop); see Green v. State, 839 S.W.2d 935, 942 (Tex.App.-Waco 1992, pet. The Tenth Circuit held that while the first image of child pornography was discovered inadvertently and was not subject to suppression because of the plain view doctrine relating to seizures, the detective exceeded the scope of the search warrant by searching for additional pornographic images. Rule 404(b) provides:(b)Other Crimes, Wrongs or Acts. Her testimony demonstrated that appellant and his wife had more than $40,000 in available monies in 1999, but that at the time of the offense, they had approximately $1,796.19. Appellant stated that the house was beautiful and that he was going to be selling a ranch and would be paying cash for a house. Appellant's hearsay objection was overruled. Barajas knew about Holik's personal life, that Holik lived alone and worked from her home, that Holik had an upcoming marriage and wanted to sell her Austin home, and that Holik had Thanksgiving holiday plans with her fianc. Several accesses were on November 13, 2001, two days before the Holik murder. He stopped opening picture files and obtained a second search warrant that allowed him to specifically search for child pornography. Appellant's wife, Janet, was a school teacher for the Smithville Independent School District. Appellant relies on Rule 40111 to claim that the testimony of seven of the female homeowners and realtors concerning their encounters or interactions with appellant was too remote to be relevant. 403.12 He does not advance a claim that his extraneous conduct with these latter witnesses was inadmissible, but only that only certain parts of their testimony about their own emotions, feelings, or actions during or after their interactions with appellant were inadmissible because their probative value was substantially outweighed by the danger of unfair prejudice. pet.). Austin police officers checked Holik's house about 5:30 p.m. on November 16, 2001. 404(b). at 1147, and held the search constitutional because, unlike Carey, the searching officers were at all times searching for child pornography-the object of the search warrant-and never abandoned the authorized search.
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