Questions Post Question There are no questions yet for this company. Then multiple women report a man behaving strangely while looking at properties for sale or rent. Id. The man took a black-and-white flyer out of the plastic real estate bucket and approached the house. The second portion of the fifth point of error is overruled.14. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App.2003); Maldonado, 998 S.W.2d at 243. The special agent opened one of these files while systematically searching for NLM documents but wondered if the file might contain evidence of child pornography. 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. Her valuable engagement ring was in her possession at 1:30 p.m. on November 15, 2001. The record reflects that the police were able to learn from Joe Schwaleberg of Generic Systems, Inc., who operated the necrobabes.com Web site, that on February 28, 2001, Janet Russo paid for a six-month subscription to this erotic asphyxiation Web site, and that on July 21, 2001, Tony Russo paid for a six-month subscription to the same Web site. 9, 4-5, 75, 81 [pretrial]; R. Vol. 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. 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. Appellant then asked several times when Cranford's husband would be home. Appellant argues that the evidence held appellant up to public ridicule and shame and had little effect upon a fact of consequence. The prosecution offered evidence of appellant's financial condition during the time period in question. Using this number, the police were able to identify appellant as the man they were seeking. Glad he's in prison for life. See Rabbani v. State, 847 S.W.2d 555, 560 (Tex.Crim.App.1992); Anderson v. State, 15 S.W.3d 177, 183 (Tex.App.-Texarkana 2000, no pet.). He testified that he hypothesized the coincidental chances of obtaining the same nuclear DNA results in this case would be one in 16,817. 404(b). If this was an objection, it was not included in the written objections. In Cooper v. State, 67 S.W.3d 221 (Tex.Crim.App.2002), the Court in reaching its decision revisited its earlier opinion in Nelson v. State, 848 S.W.2d 126 (Tex.Crim.App.1992), and McGee v. State, 774 S.W.2d 229, 234 (Tex.Crim.App.1989), and reconciled these holdings. Stars Diane Holik Patrick Russo Lester Holt See production, box office & company info Add to Watchlist Photos Top cast See Tex.R. Diane Holik (8 matches): Phone Number, Email, Address - Spokeo See Results. There was no objection to this latter statement which was Barajas's opinion, not a present sense impression exception to the hearsay rule. If, based on all the evidence, a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant's guilt, due process requires that we reverse and order a judgment of acquittal. Fisher, 851 S.W.2d at 302 (quoting Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992)); see also Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004). It was an awkward situation. Jury convicts man who posed as homebuyer to kill 2737, 49 L.Ed.2d 627 (1976). 404(b).20 The trial court gave limiting instructions to the jury that are not the basis of the complaints here. The local police arrived at the home at 6300 Pathfinder Drive, where they found the body of a white female who was identified as 42-year-old Diane Holik. Evid. She saw a gold or champagne-colored minivan pull up to the for sale sign in the yard. 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. Using realtor, Rector made a keyword search and found 19 hits in the temporary Internet files and 107 hits in the unallocated clusters.16 On August 1, 2003, Rector presented the extracted Internet history to a prosecutor to see what is real estate and what is not. The prosecutor noted that the Internet history made reference to a necrobabes.com. Rector did not know what that Web site was. 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. 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. According to Detective Rector's testimony, the unallocated clusters at some point were resident in the computer but had been deleted. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App.1999) (quoting Montgomery, 810 S.W.2d at 389). He then sat down and covered his face with his hands. He said that he would set up an appointment for his wife to see the house on the weekend. Herrin v. State, 125 S.W.3d 436, 441 (Tex.Crim.App.2002); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997); Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex.Crim.App.1992); Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App.1992); Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex.Crim.App.1991). Sign Up. TV-14 Reality and . See Tex.R. During the autopsy, police officers collected biological evidence from the victim's left hand. 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. ", Jury convicts man who posed as homebuyer to kill. 2. No zip ties were found on the body or in the house. Moreover, a lawful search extends to the entire area in which the object of the search may be found.. Dateline: Tony Russo Murderer Today - Diane Holik Murder Update He became sweaty and very shaky, and there was a strange look in his eyes. Id. He was a worship leader and music director. The trial court found that the evidence of seven witnesses was not too remote and was relevant. Barnes v. State, 62 S.W.3d 288, 297 (Tex.App.-Austin 2001, pet. He qualified as an expert witness for the State. See Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001); Dewberry v. State, 4 S.W.3d 735, 740(Tex.Crim.App.1999); Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App.1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993). at 95-96 (citing Kearney v. Commonwealth, 4 Va.App. Penal Code Ann. Conner, 67 S.W.3d at 197; Alvarado, 912 S.W.2d at 207; Robertson v. State, 871 S.W.2d 701, 706 (Tex.Crim.App.1993); Key v. State, 151 S.W.3d 619, 621 (Tex.App.-Beaumont 2004, pet. Contact us. He insisted that he be shown only vacant houses. A Bastrop area telephone service representative testified about cell phones registered to appellant and his wife. Holik's neck bore the marks of a ligature, which was never found. Diane Tammy Holik, 43, of Austin, Texas, entered into rest on Friday, November 16 2001. Donald Ray Holik, 56. He left the black-and-white flyer behind. Diana Olick Profile - CNBC Conner, 67 S.W.3d at 197. No such necklace was found. Diane is related to C Weintraub and Susan C Marsh as well as 3 additional people. The seventh point of error is overruled. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). In the third point of error, appellant challenges the factual sufficiency of the evidence to establish that appellant committed murder in the course of robbery. We conclude that the general rule stated in Cooper is applicable capital murder cases where the offense was committed in the course of a robbery.7. Although appellant used the phrase extraneous conduct evidence in the point of error, there was no objection on the basis of Rule 404(b). All rights reserved. Appellant relies chiefly upon United States v. Carey, 172 F.3d 1268 (10th Cir.1999), perhaps the preeminent case on computer searches at the time of the trial. 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. The point of error is multifarious and is not easy to decipher. In his brief, appellant urges that the evidence admitted over his hearsay objections had no relevancy to any material issue in the case. Dr. Coons viewed the images shown to have been accessed by appellant on his computer from the necrobabes.com Web site as well as photographs of the victim's body. Cranford left and let the dog out of the study because she was uncomfortable. Diane Holik - Address & Phone Number | Whitepages Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App.1995). See Tex.Code Crim. 4. See United States v. Hawkins, 59 F.3d 723, 730 (8th Cir.1995); cf. 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. Moreover, there was evidence that at the time of the murder, appellant was in dire financial straits. The standard of review is the same for both direct and circumstantial evidence. Id. Id. 3. Rector was then requested by a prosecutor to conduct a more thorough search to look for Internet activity related to real estate. Diane Holik Vanmil, Miami, FL (33144) - Spokeo 403. The e-mail and home addresses on the membership records matched appellant's. Appellant overlooks the fact that at no time did he advance any relevancy objection at trial as required. Appellant Patrick Anthony Russo appeals his conviction for capital murder. There were 1,200 images recovered. Patrick Anthony RUSSO, Appellant, v. The STATE of Texas, Appellee. Tex.R. Cynthia Barajas, a coworker from California, testified that she contacted Holik by telephone about 12:30 p.m., Austin time, on November 15, 2001. He gave the name of Jim Taylor. art. 18. The defendant in Carey was arrested for the sale of drugs and consented to the seizure of his computer system. 401, 402, 403. Computer searches are no less constitutional than searches of physical records where innocuous documents may be scanned to ascertain their relevancy. United States v. Hunter, 13 F.Supp.2d 574, 584 (D.Vt.1998). 2157, 72 L.Ed.2d 572 (1982)). Rector presented the information extracted from the computer to the prosecutor, who noticed that the computer's Internet history (which contained no Web pages or images) made reference to a Web site named necrobabes.com, which was later determined to be an asphyxiation-type pornographic Web site. Appellant relies upon Brewer v. State, 126 S.W.3d 295 (Tex.App.-Beaumont 2004, no pet. @dateline_keith Great show Keith! Moreover, objections based on remoteness go to the weight rather than the admissibility of the evidence. Proof of a completed theft is not required. Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App.1996); DeLeon, 77 S.W.3d at 315-16. We conclude that the evidence supporting the finding of guilt is not so weak as to make the finding clearly wrong or manifestly unjust, nor is the verdict against the great weight and preponderance of evidence. While systematically opening all user-created files, [the computer analyst] opened one that contained images that he considered child pornography. The facts do not show that Detective Rector exceeded the scope of the search warrant of June 18 in violation of the Fourth Amendment. ref'd). There were no trial objections to the subject matters advanced in this point of error. (3)Then Existing Mental Emotional or Physical Condition. Appellant's counsel made general remarks and argued that, after learning of the homicide, many of the witnesses overreacted in describing their encounters or interactions with appellant. 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. 19.03(a)(2), the legal and factual sufficiency standards apply to both the charged and underlying offenses. 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). Detective Roy Rector, a computer forensic examiner with the Austin Police Department, was initially requested to look for references in the computer to the victim, her address, or her realtor. See Conner, 67 S.W.3d at 197. Diane Holik was the victim of a brutal murder that took place in Austin, Texas, in 2003. The name necrobabes.com was indirectly obtained from the computer search pursuant to the search warrant of June 18th, but that was a legal search and did not taint the acquisition of the name. 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. United States v. Carey, 172 F.3d 1268, 1271 (10th Cir.1999). In a search for tangible documents, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be searched. See Tex.R.App. 5. The sixth ground of error is overruled. Diane Tammy Holik (1958-2001) - Find a Grave Memorial After a keyword search of certain terms proved negative, Id. So, Diane was looking to sell her previous Home and move to Houston, Texas, where he lived. Intent may be inferred from the acts, words, and conduct of the accused. When both the legal and factual sufficiency of the evidence are challenged, the reviewing court must first review the evidence under the legal sufficiency standard. A search warrant was issued to enter the defendant's home and seize his computer and related items. 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. 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. Later, Cranford described the incident to a friend, who subsequently called her and asked her to look at a composite drawing in the newspaper and the accompanying story. Later, he parsed out of that history the part associated with necrobabes.com detailing appellant's activity with it. However, there was no interrogation to establish these facts. at 528. The testimony presented before the jury showed that Holik planned and had the intent to meet the man who just left the following Saturday. 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. 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. Proof of a completed theft is not even required. Appellant does not complain of the admission of all the evidence taken from his computer. He said that he did not enter any houses. . Evid. SID Number: 04127272 TDCJ Number: 00655871 Name: RUSSO, PATRICK ANTHONY Race: W Gender . 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. at 986-87. Here, Holik's statement to Barajas over the telephone that This guy just left was contemporaneous with the event it described or certainly it could be inferred circumstantially. at 1270. They worked as a team in managing new college hires for IBM. Diane Holik: 5 Fast Facts You Need to Know | Heavy.com See Camarillo v. State, 82 S.W.3d 529, 537 (Tex.App.-Austin 2002, no. This ring, and a necklace she routinely wore, a brown box containing expensive pieces of jewelry, and a spare house key were determined to be missing. The jury as the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given the testimony and may accept or reject all or any of a witness's testimony. Thus, there was no probative evidence of an intent to rob. Cranford said that appellant's eyes somehow looked bigger and deeper and darker and that he seemed to be a different person. 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. The search program permitted a search of the names and contents of the files. The court pointed out that in a search for records and documents, innocuous records must be examined to determine whether they fall in the category of those papers covered by the search warrant. Id. 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. ; Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). Cranford left the room and appellant stayed behind. The thrust of Rule 403 is to favor the admissibility of evidence, Goodwin v. State, 799 S.W.2d 719, 738-39 (Tex.Crim.App.1990), and there is a presumption of the admissibility of the evidence. He does not challenge the evidence supporting the commission of the murder. 1. Penal Code Ann. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Tex.R. The Web pages viewed by appellant included manual and ligature strangulation. Evid. Id. He urges that the execution of the search of the computer's contents exceeded its scope with the search of a computer file relating to necrobabes.com. It is argued that the search should have been limited to the computer's contents involving real estate as authorized by the search warrant of June 18, 2003. At one point, Cranford's son awakened and she moved him to the family room. The man, whom Cranford later identified as appellant, noted that Cranford had switched realtors, but the switch had occurred in July 200l. . 803. Cranford had just gotten her children down for a nap. The legal sufficiency of the evidence under the Jackson standard is a question of law. Evid. On November 17, 2001, there was a church staff meeting. Id. Please try again. Patrick Russo, 40, faces life in prison or possibly the death penalty when sentenced next week. This makes sense, as the user is free to name a file anything. Montgomery, 810 S.W.2d at 389; DeLeon v. State, 77 S.W.3d 300, 315 (Tex.App.-Austin 2001, pet. Dateline: Diane Holik's Murderer Patrick Russo Had $1,796 In Bank Rule 803 in part provides: The following are not excluded by the hearsay rule, even if the declarant is available as witness: (1)Present Sense Impression. Appellant inquired whether the dog would calm down if petted. The resulting exhibits were obtained from an independent source without any tinge of illegality17 and were admissible into evidence. Brown, 552 F.Supp. In Rosa v. Commonwealth, 48 Va.App. 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. More than 136 such documents in the temporary Internet files folder or unallocated clusters (deleted files) were located. Appellant cites no authority to support his contentions. Appellant asserts that none of the missing property was found in his possession or ever recovered, despite searches of his home and church office, the use of metal detectors in his yard, and a survey of pawn shops. She had recently put her suburban home up for salenever realizing it would lead to the end of her life.. Id. If error was properly preserved, we conclude that the trial court did not abuse its discretion in admitting the complained-of evidence in light of the objections made. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Cranford opened the front door to prevent the bell from awaking the children. Her daughter awakened and screamed. See Tex.R. Diana Olick CNBC Senior Climate and Real Estate Correspondent Diana Olick is an Emmy Award-winning journalist, currently serving as CNBC's senior climate and real estate correspondent. JPG, also known as JPEG files, contain images. Penal Code Ann. A jewelry box, which contained a substantial amount of jewelry, including some very expensive pieces, was missing from the master bedroom. She stated that appellant breezed through some areas of the house. In his first point of error, appellant challenges the legal sufficiency of the evidence to establish [that] appellant committed murder in the course of robbery..
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