ref'd). At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 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. We need not repeat the applicable authorities cited in our discussion under the fifth point of error. See Diane Holik Vanmil's age, phone number, house address, email address, social media accounts, public records, and check for criminal records on Spokeo. Austin police officers checked Holik's house about 5:30 p.m. on November 16, 2001. 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. Appellant argues that the evidence held appellant up to public ridicule and shame and had little effect upon a fact of consequence. After reviewing Carey, Walser, Gray, and other authorities, the Rosa court wrote: We agree with the reasoning of these cases. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991); Roberson v. State, 16 S.W.3d 156, 165 (Tex.App.-Austin 2000, pet. 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. 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.. pet.). Appellant lied to the police when he denied being at Holik's house or in the Great Hills subdivision and asserted that he had gone to a radio station. The reliance is misplaced. Diane Holik: 5 Fast Facts You Need to Know | Heavy.com FBI agents executed a search warrant on the defendant's home and seized four computers in connection with an investigation of unauthorized computer intrusions. In connection with appellant's argument, we examine other cases. He became sweaty and very shaky, and there was a strange look in his eyes. This information was given to the police after November 15, 2001. 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). 20. Appellant was released after 8:00 a.m. on November 21, 2001. Rankin, 974 S.W.2d at 718. at 986-87. Dateline: Tony Russo Murderer Today - Diane Holik Murder Update While the police turned to independent sources to determine the nature of necrobabes.com, the State argues that the search of the computer for home sales in the Austin area-the object of the June 18th search warrant-continued as evidenced by exhibits later introduced into evidence without objection. He returned on November 5, 2001, at the same time. (upholding admission under Rule 803(3) of murder victim's statement that she wanted to leave defendant, but felt economically trapped); Norton v. State, 771 S.W.2d 160, 165-66 (Tex.App.-Texarkana 1989, pet. Hon. 404(b). In many situations, he wanted to meet the woman realtor alone at the site of the vacant house. Diane Tasker-Holik. 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. Cranford left the room and appellant stayed behind. Nethery v. State, 692 S.W.2d 686, 706 (Tex.Crim.App.1985); Stilwell v. State, 434 S.W.2d 861, 863 (Tex.Crim.App.1968); Thompson v. State, 59 S.W.3d 802, 808 (Tex.App.-Texarkana 2001, pet. All rights reserved. Paula L. Feroleto Part 14 - 2nd floor 25 Delaware Avenue Buffalo, NY 14202 Phone: 716-845-9438 Fax: 716-845-5151 Court Clerk: 716-845-9408 IAS Rules. 17. The point of error is multifarious and is not easy to decipher. 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. Pastor Fox stated that appellant felt that he was going to be arrested for killing a lady. at 527. She put the phone down, but later returned and told Barajas that her rings were back on. The conversation eventually concluded about 1:30 p.m. Robert Hebner and his wife were neighbors and friends of Holik. In the other portion of the point of error, appellant complains of the testimony of thirteen female homeowners and realtors, relying upon Rule 403. 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. Tex. The manager of the KNLE station, Sherland Priest, testified that because of the approaching storm, all employees were in the lobby with the doors open because of expected high winds on the afternoon of November 15, 2001. Id. Her nineteen-month-old son was in the master bedroom and her three-month-old daughter was in the nursery. He insisted that he be shown only vacant houses. She had been tied up and strangled, an autopsy report confirmed. Diane T Holik (1958-2001) *43, Grave #14310373 - Sysoon The warrant was executed. The victim, an IBM at home supervisor, was found in an upstairs bedroom lying face down. There were no objections based on Rule 404(b) included in the written objections. 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. Appellant inquired whether the dog would calm down if petted. If appellant preserved error for review, it is based on these pretrial rulings under the unique circumstances described. While systematically opening all user-created files, [the computer analyst] opened one that contained images that he considered child pornography. The index.dat files reflect the computer's Internet history but do not contain any Web pages and images. Six Degrees of Murder: Ties That Bind - Philo 1. 2529, 101 L.Ed.2d 472 (1988); Crosby v. State, 750 S.W.2d 768, 780 (Tex.Crim.App.1988). Diane Holik was a resident of - The Arts of Entertainment - Facebook 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. Rector then performed some keyword searches on the hard drive copy using Diane Holik, Pathfinder, and Lakki Brown (Holik's realtor). Barajas testified that she warned Holik not to let strangers in her home when she was alone. Nethery, 692 S.W.2d at 706; Thompson, 59 S.W.3d at 808. The man, whom Cranford later identified as appellant, noted that Cranford had switched realtors, but the switch had occurred in July 200l. Cynthia Barajas, a coworker from California, testified that she contacted Holik by telephone about 12:30 p.m., Austin time, on November 15, 2001. Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App.1987); Roberson, 16 S.W.3d at 164. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App.1999) (quoting Montgomery, 810 S.W.2d at 389). Id. A spare front door key with a ribbon was missing from the doorknob of a ground floor door. 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. 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. Glad he's in prison for life. ref'd), a murder case, the trial court admitted under Rule 803(3) the victim's statement to a third party that she was frustrated in the relationship, but intended to continue the relationship with the defendant. Barnes v. State, 62 S.W.3d 288, 297 (Tex.App.-Austin 2001, pet. 2.01 (West 2003); Ward v. State, 143 S.W.3d 271, 274 (Tex.App.-Waco 2004, pet. Diane Holik murder by NecroBabes.com fan Patrick Anthony Russo on Six She had recently put her suburban home up for salenever realizing it would lead to the end of her life.. One Possible Clue Found at Diane Holik Crime Scene Holik's realtor and neighbor, Lakki Brown, saw the police officers. 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). Daniel J . ADDITIONAL LINKS Post Question For This Company Contact Us Regarding Your Company Profile All Companies Named A PLACE FOR PAWS Search All Pennsylvania Companies 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. ref'd). Tex.R. Another search warrant was issued on November 18, 2003, expressly authorizing the search of the necrobabes.com computer file. The indentations appeared to have been made by plastic zip ties or flex-cuffs once used by police to bind prisoners' wrists together. Deem noted that it was common practice to manually open picture files because text (such as chat sessions) could be found in JPG files. [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. They arrested appellant later that day at his pastor's house, transported him to Austin, and again interviewed him. The Web site was accessed or visited by appellant's computer in the month prior to the victim's murder, including on November 13, 2001, two days before the offense occurred. 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. 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. Assuming that the objections were timely made, see Tex.R.App. The prosecutor requested Rector to determine if there was additional information of that type on the Internet history concerning necrobabes.com. Rector was to continue his search for matters relating to real estate and the sale of homes in the Austin area. The trial court did not abuse its discretion in admitting evidence of the contents of appellant's computer as contended. Appellant claimed that he knocked on the front door but no one at the radio station answered. In this point of error, appellant does not claim that he was not identified, by direct or circumstantial evidence, as the individual involved in the encounters with the female homeowners or realtors. He claims that the fact that Holik's undisturbed purse was found in her car in the garage dispels any notion of a robbery at the scene. Dr. Elizabeth Peacock, deputy medical examiner, performed the autopsy and determined the cause of death to be homicide by ligature strangulation. Appellant's hearsay objection was overruled. 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. 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. Rule 404(b) provides:(b)Other Crimes, Wrongs or Acts. See Tex.R.App. The State offered and did eliminate certain parts of the testimony of Melody Blount and Tammy Tayman. Several accesses were on November 13, 2001, two days before the Holik murder. ref'd). 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. at 985. 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). 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. at 1146. Crime Mystery Docudrama. Carey is factually distinguishable. Dr. Ranazit Chakraborty, Director of the Center for Genome Information of the University of Cincinnati College of Medicine, reviewed the findings by Mills and Nelson. 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.) 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. Penal Code Ann. We begin with State's Exhibit 19. Other evidence showed that several days before the murder, appellant accessed the necrobabes.com Web site which detailed a scenario that involved the ligature strangulation of a woman and the theft of her jewelry. 1341, 1350-51 (D.N.J.1982); Booth v. State, 306 Md. Please reach Diane P Holik at (570) 579-6352. 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. The man took a black-and-white flyer out of the plastic real estate bucket and approached the house. The police officers also recovered a green towel found on a couch downstairs. In the early morning hours of November 21, 2001, police officers executed a search warrant at appellant's Bastrop home. He then inquired whether there was a husband or boyfriend with whom he could deal. A homeowner from another subdivision saw the drawing in the newspaper and called the police. There is, however, no legal requirement that property stolen must be recovered in whole or in part to constitute the offense of robbery. at 224. In such an analysis, we view all the evidence in a neutral light. Appellant was shown to have visited the homes of Thoom Zech and Lisa Faulkner twice on November 15, 2006, as he may have done at the victim's home. The body was fully clothed and there was no evidence of a sexual assault. In the instant case, appellant challenges only the legal sufficiency of the evidence to establish the underlying offense of robbery. This was done with the consent of the Web site operator. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). "When Holik was killed, I called police and said 'It's him."'. P. 38.1; Hankins v. State, 132 S.W.3d 380, 385 (Tex.Crim.App.2004). TX Court of Appeals Opinions and Cases | FindLaw 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. At the conclusion of the hearing, appellant was permitted to wait and view the completed transcription of the court reporter's record of the hearing and then make objections. We do not reach the second point of error claiming legal insufficiency of the evidence to establish that the murder occurred in the course of a kidnapping. According to the pastor, Jim Fox, appellant stated that God had gotten his attention during the November 15 storm, and that it was a determining time in his life. Proof of robbery committed as an afterthought and unrelated to the murder is not sufficient evidence of capital murder. Diane Y. Devlin Supreme Court Justice Part 6 - 3rd floor 92 Franklin Street Buffalo, NY 14202 Phone: 716-845-9483 Fax: 716-845-5157 Court Clerk: 716-845-9420 IAS Rules. Appellant said that some jewelry had been taken from the victim. If error was preserved, it was during pretrial hearings. P. 33.1. If the computer erases the index, the file is still out there in the unallocated clusters until the computer reuses that space.. Learn more about FindLaws newsletters, including our terms of use and privacy policy. ", Jury convicts man who posed as homebuyer to kill. Dateline: Diane Holik's Murderer Patrick Russo Had $1,796 In Bank The evidence was relevant. In making his factual sufficiency argument, appellant continues to argue that there was insufficient evidence to establish robbery during the course of a murder. Please try again. An earlier membership had been issued on February 28, 2001, to a Janet Russo at the same address. 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. Log In. 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. Diane Holik Lucas, 63. See order of the Texas Court of Criminal Appeals dated February 25, 1998, entitled Final Approval of Revisions To The Texas Rules of Evidence in Criminal Cases.. In Memory of Diane Holik - valleycentral76.tripod.com 10. 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. 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. Only the numbered exhibits were admitted into evidence. Moreover, about 5:00 p.m. on the afternoon of November 15, 2001, a van fitting the description of appellant's minivan was seen parked in front of Holik's house. Current counsel makes no belated request for the record. Dr. Richard Coons, a psychiatrist and an attorney, testified concerning his training in human sexuality. 14. 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. Delivered every Monday by 10 a.m., New York & New Jersey Energy is your guide to the week's top energy news and policy in Albany and Trenton. 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. Dogs inside the house appeared to have left fecal matter on the carpet, indicating that they had been confined for some time. Priest testified that appellant did not appear at the station on the day and time in question. ref'd))). 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. Upon inquiry, the defendant told the officers that the computer contained child pornography. Jurors had two pieces of evidence that tied Russo to the crime scene: DNA from a hair that matched his and DNA from a swab taken from Holik's left hand. FACTUAL SUFFICIENCY-MURDER IN THE COURSE OF ROBBERY. at 528; see also Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. There were no statutory pretrial motions involved. at 1273. 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. This video answers the question: Can I analyze the case of Diane Holik?Support Dr. Grande on Patreon: https://www.patreon.com/drgrandeSubscribe to the Bella . Patrick Russo, 40, faces life in prison or possibly the death penalty when sentenced next week. His hands holding the flyer were shaking. 2. That is an unusual move, they say. Therefore, the trial court did not abuse its discretion in admitting this testimony under Rule 803(1). pet.). Evidence which is not relevant is inadmissible.Tex.R. There are no points of error raised regarding the penalty stage of the trial. He was a worship leader and music director. Diane P Holik, (631) 643-9030, 400 1st St, Weatherly, PA 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. 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. Appellant's relevancy objections were specifically directed only to the question of remoteness concerning appellant's encounters with certain female homeowners and realtors. In such an event, what the listener on the telephone hears is a present sense impression. David F. Binder, Trial Practice Series, Hearsay Handbook 8: 1 at 8.6 (4th ed.2001) (citing Brown v. Tard, 552 F.Supp. Penal Code Ann. This is true even where the element of appropriation occurred after the murder. Tex.R. See Chaney v. State, 474 S.W.2d 711, 712 (Tex.Crim.App.1972); Dean v. State, 154 S.W.2d 459 (Tex.Crim.App.1941). 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. Patrick Anthony Russo, Diane Holik's Killer: 5 Fast Facts - Heavy.com Brewer is factually distinguishable from the instant case. Rector was then requested by a prosecutor to conduct a more thorough search to look for Internet activity related to real estate. Id. On the second occasion, Ramirez noted the license plate of the Ford minivan that appellant was driving. Includes Address (9) Phone (1) See Results. 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. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Appellant was ready to submit to the authority of the pastor. 1998, no. Select this result to view Diane L Holik's phone number, address, and more. He said that he would set up an appointment for his wife to see the house on the weekend. He knew that Holik had been trying to sell her home. See Tex.R.App. Diane is on the list of graduates from high school. The resulting exhibits were obtained from an independent source without any tinge of illegality17 and were admissible into evidence. While the court stated that officers cannot simply conduct a sweeping, comprehensive search of a computer's hard drive because of the amount of private material potentially stored there, it found the search proper because the officers used a clear search methodology and obtained a second warrant as soon as they viewed images they believed fell outside the scope of the initial warrant. Though the death case murder is still a mystery. Evid. 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. Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. 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. We conclude from all the evidence that a rational jury could have found beyond a reasonable doubt all the essential elements of capital murder, including the aggravating element of robbery involving the timely formed intent to steal. 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. Id. Diane Holik Murder: Where is Patrick Anthony Russo Now? at 528. Appellant's DNA was found on Holik's left hand, where engagement rings are worn. More than 136 such documents in the temporary Internet files folder or unallocated clusters (deleted files) were located. Appellant stated that the storm began and he left. 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. Holik, 42, planned to sell the home, get married and move to Houston. Diane Holik was murdered, in her own home where she lived alone, by strangulation with a ligature, and her body was left in a locked house. The court reasoned that the special agent would have been remiss not to search the JPG files merely because such files are generally picture files and he believed that the materials he sought were most likely to be text files. Family and friends are slowly eliminated until it is likely a stranger murder. In properly construing the entire Internet history, Rector observed references to necrobabes.com. The plain view doctrine applies only to seizures, not searches. The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. 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. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005); Clewis, 922 S.W.2d at 134. According to Detective Rector's testimony, the unallocated clusters at some point were resident in the computer but had been deleted. See Tex.R. The evidence of actions taken by the female witnesses while interacting with appellant (taking precautionary measures, staying away from appellant, checking on a child, or calling family, friends or police) or their expressions of concern provided significant background information about the circumstances under which the events occurred. Questions, as here, of when testimony becomes too remote and, therefore, irrelevant are left to the sole discretion of the trial court.
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