He began to pet the animal and the dog responded. ref'd). Proof of a completed theft is not even required. This inference is not negated by evidence of an alternative motive that a jury could rationally disregard. The Registered Agent on file for this company is Kelley Diane Holik and is located at 3919 Barnett Road #918, Wichita Falls, TX 76310. The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. If this was an objection, it was not included in the written objections. The victim, an IBM at home supervisor, was found in an upstairs bedroom lying face down. The State did not offer this evidence before the jury. His search was broadened to consider the Internet history, searching for documents relating to real estate, including Web pages. Plenty of dogs at Midland Animal Services are waiting for their furever home. 7. In the same general time frame, Diane Holik was murdered by ligature strangulation in her own home at XXXX Pathfinder in the Great Hills subdivision in Austin, where she lived alone. The grave site of Diane T Holik / Plot 14310373. In re Winship, 397 U.S. 358, 364, 90 S.Ct. This account has been disabled. pet.). Stars Diane Holik Patrick Russo Lester Holt See production, box office & company info Add to Watchlist Photos Top cast Select this result to view Diane L Holik's phone number, address, and more. Detective Rector testified that in the original search for sale of homes, that he generated the Internet history of the computer. 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. In the instant case, appellant challenges only the legal sufficiency of the evidence to establish the underlying offense of robbery. . She described appellant as opening the closet door and then dropping his arms to his side and just standing there without saying anything. Bush v. State, 628 S.W.2d 441, 444 (Tex.Crim.App.1982); Eby v. State, 165 S.W.3d 723, 737 (Tex.App.-San Antonio 2000, pet. See United States v. Hawkins, 59 F.3d 723, 730 (8th Cir.1995); cf. Top 3 Results for Diane Holik. Dateline: Who Is Tony Russo Murderer? See Photos. at 95-96 (citing Kearney v. Commonwealth, 4 Va.App. Barajas related that Holik was excited to be selling her home and was eager to do so.22. Lived In Montgomery NY, Valhalla NY, Boca Raton FL, Wappingers Falls NY. ref'd) (Texas precedent allows state-of-mind declarations to be admitted to prove the joint conduct of the declarant and another). The trial court found that the evidence of seven witnesses was not too remote and was relevant. Holik was engaged to be married and planned to move to Houston where her fianc lived. In the early morning hours of November 21, 2001, police officers executed a search warrant at appellant's Bastrop home. Rector recovered two hours, thirty-six minutes, and fifty-five seconds of Internet history of the necrobabes.com Web site. P. 33.1, we observe that appellant did not object on the basis of Rule 404(b), under which the State gave notice and offered the exhibits of which appellant now complains. He then inquired whether there was a husband or boyfriend with whom he could deal. SID Number: 04127272 TDCJ Number: 00655871 Name: RUSSO, PATRICK ANTHONY Race: W Gender . 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). This makes sense, as the user is free to name a file anything. Id. This is true because a review of the factual sufficiency of the evidence begins with the presumption that the evidence supporting the judgment of conviction is legally sufficient. On November 15, 2001, when Hebner was coming home, he observed a gold or brown van parked in front of Holik's home about 5:00 or 5:15 p.m. ref'd). See Tex. 16. ref'd))). Appellant has not identified any reason why a danger of unfair prejudice exists in relation to the various testimony of the thirteen female homeowners and realtors of which he complains. A trial court's evidentiary ruling on a hearsay objection must be upheld absent an abuse of discretion. 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. He stopped opening picture files and obtained a second search warrant that allowed him to specifically search for child pornography. The resulting exhibits were obtained from an independent source without any tinge of illegality17 and were admissible into evidence. 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. at 1351; see also Franklin v. State, 858 S.W.2d 537, 543-44 (Tex.App.-Beaumont 1993, no pet.). 404(b). Evidence was admitted that demonstrated that appellant's wife (a school teacher) and his son (a student) were at school during much of the time that the Internet was used to access the necrobabes.com Web site. Forty-three-year old Diane Holik is selling her home to start a new life with her fianc in Houston, then she misses a meeting at work and police are sent to her home, where they find her bruised and lifeless body. This is true even where the element of appropriation occurred after the murder. 17. Reviewing courts are not fact finders. 4. 193, 226 n. 100 (Fall 2005) (citing in the following order: Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001) (noting that computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person-the system operator); United States v. Cox, 190 F.Supp.2d 330, 332 (N.D.N.Y.2002) (holding that there is no reasonable expectation of privacy in subscriber information provided to Internet service provider); United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan.2000) (no reasonable expectation of privacy in subscriber information); United States v. Hambrick, 55 F.Supp.2d 504, 507-09 (W.D.Va.1999) (individual has no reasonable expectation of privacy in his name, address, social security number, credit card number, screen name, and proof of Internet connection obtained from Internet service provider); State v. Evers, 175 N.J. 355, 815 A.2d 432, 440-41 (N.J.2003) (person had no standing to challenge warrant that obtained his subscriber information from Internet service provider); Hause v. Commonwealth, 83 S.W.3d 1, 10-12 (Ky.App.2001) (no standing for subscriber to challenge warrant that obtained his name, address, and screen name from Internet service provider); United States v. Ohnesorge, 60 M.J. 946, 949-50 (U.S. Navy-Marine Ct.Crim.App.2005) (no reasonable expectation of privacy in subscriber information given to Internet service provider)). Id. When Dr. Chakraborty considered the mitochondrial DNA, he decided that the coincidental chance of obtaining the same profile in this case is one in 12.9 million people. See Tex.R. Diane Holik: 5 Fast Facts You Need to Know Patrick Anthony Russo, Diane Holik's Killer: 5 Fast Facts You Need to Know. The defense closed with the State at this stage of the trial without offering evidence. Appellant's second and current appointed appellate counsel, in a letter to this Court, states that the first appellate counsel did not request the penalty stage record. The agent was not required to accept as accurate any file's name or suffix and limit his search accordingly, as experienced hackers often intentionally mislabel files and directories in order to conceal information. 20. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005); Clewis, 922 S.W.2d at 134. Rule 803(1) requires that the declaration, if not simultaneous with the event, be made immediately thereafter. Immediately may permit only a slight lapse of time. 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. The court further found that even though there may have been less invasive ways of conducting the search, the resolution of the suppression issue does not turn on whether [the officer] conducted the most technically advanced search possible, but on whether the search was reasonable. Gray, 78 F.Supp.2d at 529 n. 8. 402. 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. Diane Holik was born on 10 September 1958 in Bay Shore, New York, USA. Appellant advances eight points of error. 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. At the hearing, appellant agreed that Barajas's warning to Holik was not hearsay and expressly stated that he had no objection to the testimony about Holik's recovery of her ring or rings. Then multiple women report a man behaving strangely while looking at properties for sale or rent. Appellant's telephone number was given and identified. He looked at her and his demeanor seemed to change. ref'd). There is, however, no legal requirement that property stolen must be recovered in whole or in part to constitute the offense of robbery. See Watson, 204 S.W.3d at 414-15. ", Jury convicts man who posed as homebuyer to kill. This is true, but the hypothetical scenario propounded by the State to Dr. Coons did not include any reference to robbery. ref'd). ), to support his argument. ref'd). Id. 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. The State was able to tie some of the viewings to the dates that appellant visited some of the female homeowners and realtors, in order to show intent and motive. The testimony presented before the jury showed that Holik planned and had the intent to meet the man who just left the following Saturday. Appellant did not further object at trial. ref'd). Dr. Elizabeth Peacock, deputy medical examiner, performed the autopsy and determined the cause of death to be homicide by ligature strangulation. 1801, 114 L.Ed.2d 297 (1991). 803. The 43-year-old worked for IBM as an executive, ultimately settling in Austin in 1996. at 224. No such references were found. Maldonado, 998 S.W.2d at 243. Ties That Bind. No zip ties were found on the body or in the house. Cranford told him that her husband was not home often as he was a busy man, but that they had a realtor. His hands holding the flyer were shaking. The instant offense occurred on November 15, 2001. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App.2001). Appellant generally complains that all the exhibits were irrelevant, but if relevant, their probative value was substantially outweighed by their prejudicial effect. A violent thunder and rainstorm descended upon Austin in the afternoon of November 15, 2001. These are the same cases that the Amarillo Court of Appeals analyzed in Hall v. State, 970 S.W.2d 137, 141 (Tex.App.-Amarillo 1998, pet. In Cooper v. State, 67 S.W.3d 221 (Tex.Crim.App.2002), an aggravated robbery case, the Court held that the general rule is the theft or attempted theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft for the purposes of proving robbery. The trial court did not rule on the matter until trial. 1998, no. Russo. Priest testified that appellant did not appear at the station on the day and time in question. Appellant placed the black-and-white flyer on a table in the foyer. See Photos. People named Diane Holik. Appellant stated that the storm began and he left. But a second look at the crime scene would reveal a possible hint to the killer's identity. Evid. The van was parked in such a manner that Hebner thought that a potential buyer was there. at 1146. Hon. Therefore, the trial court did not abuse its discretion in admitting this testimony under Rule 803(1). Id. Appellant cites no authority to support his contentions. FBI agents executed a search warrant on the defendant's home and seized four computers in connection with an investigation of unauthorized computer intrusions. State's Exhibits 605 through 618 are the Web pages (introductory screens) from the necrobabes.com Web site and available to anyone surfing the Internet. ADDITIONAL LINKS Post Question For This Company Contact Us Regarding Your Company Profile All Companies Named A PLACE FOR PAWS Search All Pennsylvania Companies Daniel J . On November 25, 2003, at still another separate pretrial hearing, the trial court paused and overruled appellant's Rules 401 and 402 objections to certain testimony. Several of the witnesses described a vehicle nearby at the time as similar to the champagne or tan-colored van shown to have been driven by appellant. He qualified as an expert witness for the State. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 15. ; Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. Cranford told him that she did not use it during the day. 2529, 101 L.Ed.2d 472 (1988); Crosby v. State, 750 S.W.2d 768, 780 (Tex.Crim.App.1988). Appellant's wife, Janet, was a school teacher for the Smithville Independent School District. The person will play out the fantasies, searching out potential victims. Moreover, there was evidence that at the time of the murder, appellant was in dire financial straits. 10. Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex.Crim.App.2000). As noted, on November 18, 2003, another search warrant was issued by a district judge to search the hard drive of appellant's computer for, inter alia, information, photos, and text from a Web site named necrobabes.com and information pertaining to death by asphyxiation. In making his factual sufficiency argument, appellant continues to argue that there was insufficient evidence to establish robbery during the course of a murder. There had been no interrogation along these lines. The Gray court concluded that under the circumstances, it was reasonable under the Fourth Amendment for the special agent, in his routine preliminary file review, to open the JPG file, and to cease the search and obtain another warrant after viewing the nature of the material. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). We have not found or been directed to any trial ruling on Paige Quinluin's testimony. He was able to view information about the payment of fees and the purchase of a membership on the Web site. Appellant argued that [s]uch evidence can only prejudice the defendant and distract the jury from the material issues of fact before them.. The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. Carey is factually distinguishable. 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. As a result, the court concluded that the detective had temporarily abandoned his search for drug trafficking evidence and intentionally commenced a search for more child pornography not authorized by the object of the existing warrant. 404(b). Subsequently in the conversation, Barajas recalled that Holik panicked when she realized that she did not have her engagement ring and said, Oh, my God. Barajas heard retreating foot steps after Holik put the phone down. Cranford said that appellant's eyes somehow looked bigger and deeper and darker and that he seemed to be a different person. She was eager to sell her Austin home. The legal sufficiency of the evidence under the Jackson standard is a question of law. They worked as a team in managing new college hires for IBM. Appellant was released after 8:00 a.m. on November 21, 2001. Each membership was paid with a credit card traced to appellant. When offered, appellant's counsel responded: Subject to the previous rulings of the court, your Honor. The rulings were not identified, and the exhibit was admitted into evidence. Prosecutors said Russo frequented Internet sites that contained stories and photos about asphyxiating women. Barnes v. State, 62 S.W.3d 288, 297 (Tex.App.-Austin 2001, pet. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Thus, the jury may infer the requisite intent to rob from the conduct of the accused. Proximity in time and place may be a factor, but it must be considered along with other facts and circumstances. 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. Appellant agreed to go with the officers to the Austin police station, telling his wife that the inquiry possibly had something to do with his parole status. 28.01 (West 2006). Join Facebook to connect with Diane Holick and others you may know. Penal Code Ann. The court rejected the defendant's argument of exploratory rummaging, Id. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. 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. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Texas, 2001: Diane Holik is strangled in her home. See Results. Rosa, 628 S.E.2d at 95 (quoting Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. Appellant notes that the response of Dr. Richard Coons to a hypothetical question based roughly on the facts of the case did not mention robbery. Related To Wilfried Holik, Ingrit Holik, Thomas Holik, Linda Holik. Appellant complains that the jury was presented with information about his membership in the necrobabes.com Web site and substantial and prejudicial images and stories of asphyxiation that had been viewed on his computer. There were no statutory pretrial motions involved. ref'd), the court held that proof of murder coupled with evidence of a contemporaneous theft from the victim is enough to enable a jury to rationally conclude beyond a reasonable doubt that the murder occurred during the course of a robbery and that the accused had the intent to rob at the time of the murder. Dr. Coons was presented with a hypothetical scenario based on the evidence admitted at trial (except evidence of robbery). Appellant also said that he stopped at only one house to ask for directions, which he received from an older gray-haired man. Appellant was ready to submit to the authority of the pastor. "When Holik was killed, I called police and said 'It's him."'. Patrick Anthony RUSSO, Appellant, v. The STATE of Texas, Appellee. The State contends that the evidence shows that the computer file in question was not itself searched until after the issuance of the search warrant on November 18, 2003. ref'd) (finding under Rule 803(3) that the trial court did not err in admitting into evidence the murder victim's prior statement that she was going to fire defendant, an employee); Pena v. State, 864 S.W.2d 147, 149-150 (Tex.App.-Waco 1993, no pet.) The black-and-white flyer was turned over to the police.3. Appellant told the detectives that he became lost during the storm in a residential area of Austin. Susan Fox reported that appellant said that he had shaved off his goatee and had removed the pin-striping from his van, and that these actions might look suspicious to the police. The point of error is multifarious and is not easy to decipher. The Dog Owner's Home Veterinary Handbook The Complete Dog Book for Kids. In Hall v. State, 970 S.W.2d 137, 141 (Tex.App.-Amarillo 1998, pet. 93, 628 S.E.2d 92 (Va.App.2006), the search warrant under which the computer was seized was issued relative to the crime of distribution of controlled substances. She had been tied up and strangled, an autopsy report confirmed. They have also lived in Huntington Station, NY and Wyandanch, NY. Conner, 67 S.W.3d at 197. Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App.1996); DeLeon, 77 S.W.3d at 315-16. More than 136 such documents in the temporary Internet files folder or unallocated clusters (deleted files) were located. He knew that Holik had been trying to sell her home. 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. 404(b).10 No error was preserved on this basis. She had planned to sell the home, get married and move to Houston. Glad he's in prison for life. 1998, pet. 1. Lang v. State, 698 S.W.2d 735, 736 (Tex.App.-El Paso 1985, no. Evid. It was shown at trial that she wore the charm on a necklace. Eventually, she bought a home there and made a life for herself with a great circle of friends. 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. S2 E4: Diane Holik, a vibrant 43-year old, is about to move from Austin to Houston to start a new life with her fianc. The State has interpreted appellant's contention likewise and has briefed only the sufficiency of the evidence relating to the aggravating element of the capital murder. Appellant said that some jewelry had been taken from the victim. Almost any relevant evidence offered by one party is going to be prejudicial to the opposing party. In analyzing a challenge to the legal sufficiency of the evidence, a reviewing court does not realign, disregard, or weigh the evidence. Alvarado, 912 S.W.2d at 207. The court stated: [The computer analyst] testified that when he searches a computer, he systematically goes through and opens user-created files regardless of their names. Cranford opened the front door to prevent the bell from awaking the children. 2. at 985. Also known as Diane T Holik, D T Holik. at 1271, the detective began to browse through the file directories in Carey's computer and stumbled across a JPG file18 and opened it. Five of these witnesses were Great Hills residents who were approached at their homes on the day of the murder. ref'd), Torres v. State, 794 S.W.2d 596, 599-600 (Tex.App.-Austin 1990, no pet.)). Appellant then asked several times when Cranford's husband would be home. She. Evid. In searching the computer's hard drive for evidence of drug trafficking, the officer opened a Microsoft Word folder, and this opened a second file in the folder, an AVI file that contained a video of child pornography. The trial court specifically overruled the Rule 403 objections to other witnesses but deferred any ruling on the witness Paige Quinluin until trial.13 It appears that the trial court also overruled the later objection that certain witnesses overreacted in describing their encounters with appellant. 401, 402, 403. 803(1). Holik's realtor and neighbor, Lakki Brown, saw the police officers. A statement of the declarant's the existing state of mind, emotion, sensations or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. 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. The realtors' telephone numbers appeared on appellant's phone bill. On October 20, 2003, appellant filed written objections to the remoteness of the testimony of certain designated witnesses citing, Texas Rules of Evidence 401 and 402. The search recovered eight images of child pornography including the two transmitted ones. Only unfair prejudice as set forth in Rule 403 provides a basis for excluding relevant evidence. Holik's last known telephone conversation occurred at 3:30 p.m. on November 15, 2001, and her computer had been shut down at 3:59 p.m. the same day. We need not reiterate the evidence. Keeping in mind that appellant does not challenge the legal sufficiency of the evidence to support the murder portion of the charged offense, we examine the challenged portion. Appellant's cell phone had calls at 3:30 p.m., 5:34 p.m., and 5:56 p.m. on November 15, 2001, and these outgoing calls originated in northwest Austin. Hickson's testimony thus falls within the present sense impression exception to the hearsay rule. Diane Tasker-Holik. A homeowner from another subdivision saw the drawing in the newspaper and called the police. Appellant relies upon Brewer v. State, 126 S.W.3d 295 (Tex.App.-Beaumont 2004, no pet. Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App.1999). Patrick Russo, 40, faces life in prison or possibly the death penalty when sentenced next week. As the State points out, the exhibits were offered under Rule 404(b) as circumstantial evidence of appellant's motive, intent, preparation, plans, and identity. "He's a predator," said prosecutor Robert Smith, "skilled at deceit and cunning and finding watering holes of potential victims. The prosecution called thirteen witnesses who were attempting to sell their homes from May to November 15, 2001, or were realtors. 313, 508 A.2d 976, 985 (1986); State v. Flesher, 286 N.W.2d 215, 216 (Iowa 1979)). All persons inherit mitochondrial DNA from their mothers-so maternal relatives have the same M-DNA. Nelson examined seven hairs recovered from the victim's home. 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. The underlying purpose can be killing, dominating, or humiliating another. In the absence of the jury, the trial court conducted a hearing on Barajas's testimony and made its rulings. Id. Facebook gives people the power to. ref'd)). Appellant appeared broken and downcast when making his statements. On occasion Hebner's wife took care of Holik's dogs. In Brown, a maintenance worker at an apartment building was convicted of murdering a tenant's live-in girlfriend, Shelby Weinstein. Appellant's hearsay objection was overruled.
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