The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. 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. Rector made an independent investigation. 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. 16. 1801, 114 L.Ed.2d 297 (1991). See Tex.R. Dr. Richard Coons, a psychiatrist and an attorney, testified concerning his training in human sexuality. Appellant Patrick Anthony Russo appeals his conviction for capital murder. No rings were found on the body. Seaman: The Dog Who Explored the West. ref'd) (Texas precedent allows state-of-mind declarations to be admitted to prove the joint conduct of the declarant and another). The reliance is misplaced. He was interviewed during the transport and at the station. 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. Current counsel makes no belated request for the record. After reviewing Carey, Walser, Gray, and other authorities, the Rosa court wrote: We agree with the reasoning of these cases. The file contained an image of child pornography. In Brown, a maintenance worker at an apartment building was convicted of murdering a tenant's live-in girlfriend, Shelby Weinstein. 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. 22. The indentations appeared to have been made by plastic zip ties or flex-cuffs once used by police to bind prisoners' wrists together. 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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. ref'd). In the absence of the jury, the trial court conducted a hearing on Barajas's testimony and made its rulings. We need not reiterate the evidence. Related To Wilfried Holik, Ingrit Holik, Thomas Holik, Linda Holik. In Walser, the officers obtained a search warrant to search the defendant's hotel room and computer for evidence of possession or sale of controlled substances. Appellant claimed that he knocked on the front door but no one at the radio station answered. 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). 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. 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. At least two homeowners testified that the man came to their houses twice on November 15, 2001, in the Great Hills subdivision. This inference is not negated by evidence of an alternative motive that a jury could rationally disregard. Appellant could not be excluded from two hairs retrieved from a green towel found in the living room.5. Rankin, 974 S.W.2d at 718. 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. 5. He was not permitted entry and rejected statements suggesting that he contact his realtor. Holik's neck bore the marks of a ligature, which was never found. The essence of appellant's complaint is that the police exceeded the scope of the search under the June 18 warrant when the police used information that they learned from the computer's Internet history to discover private information on appellant's computer. On appeal, appellant simply states: [A]ppellant's objections and argument are located at R. Vol. In points three and four, appellant claims that the evidence was factually insufficient to establish the same issues raised in points one and two. at 680; see also Saldivar v. State, 980 S.W.2d 475, 495 (Tex.App.-Houston [14th Dist.] A spare front door key with a ribbon was missing from the doorknob of a ground floor door. An earlier membership had been issued on February 28, 2001, to a Janet Russo at the same address. After a keyword search of certain terms proved negative, Id. For the same reason we did not reach the second point of error, we do not reach the fourth point claiming factual insufficiency to show murder in the course of a kidnapping. Harmond v. State, 960 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] 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. 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. The best result we found for your search is Diane L Holik age 50s in Weatherly, PA. See Camarillo v. State, 82 S.W.3d 529, 537 (Tex.App.-Austin 2002, no. See Santellan, 939 S.W.2d at 168; Harrell v. State, 884 S.W.2d 154, 161 n. 14 (Tex.Crim.App.1994). 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. 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. 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. DIANE HOLIK Owner Reviews Write Review There are no reviews yet for this company. See Tex.R. Facebook gives people the power to. Detective Rector then, on a personal or lab computer, went online to the Web site for necrobabes.com which was available without charge to anyone surfing the Internet. 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. He makes no claim that the evidence was inadmissible because it revealed extrinsic acts or misconduct. One Possible Clue Found at Diane Holik Crime Scene Investigators were concerned they had a "stranger on stranger" crime, and were frustrated by the lack of evidence. 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. Alvarado, 912 S.W.2d at 207. Prosecutors said Russo posed as someone looking to buy a home to get into Diane Holik's house in November 2001. 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. 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. The trial court had not read the written objections and deferred any ruling at that time. 14. View Diane Sternberg's business profile as Assistant Sales Manager, Sales Lead at White House Black Market. As a result of the jury's answer at the penalty stage of the trial to the special issue concerning mitigating circumstances, the trial court imposed a life sentence. She described appellant as opening the closet door and then dropping his arms to his side and just standing there without saying anything. 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. He also objected to excerpts from the testimony of certain other witnesses under Rule 403. The evidence shows that appellant and his wife had a $199,000 mortgage on their trailer home in Bastrop.4. We find no such motion or pretrial ruling thereon. McFarland v. State, 845 S.W.2d 824, 837 (Tex.Crim.App.1992). He had pleaded innocent. Appellant argued that [s]uch evidence can only prejudice the defendant and distract the jury from the material issues of fact before them.. Commonwealth v. Marshall, 287 Pa. 512, 135 A. Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App.1996); DeLeon, 77 S.W.3d at 315-16. INMATE INFORMATION. Holik's realtor and neighbor, Lakki Brown, saw the police officers. 1998, no. 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. The body was fully clothed and there was no evidence of a sexual assault. There they find her lifeless body and a killer who's left few clues behind. 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. Cranford left and let the dog out of the study because she was uncomfortable. Evid. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App.1995). Passwords were issued allowing entry to the said Web site as a result of the memberships. All these witnesses, except Bob Reynolds, were women. 2737). The legal sufficiency of the evidence under the Jackson standard is a question of law. at 1146. Alternatively, you can call Diane P Holik's home phone at (631) 643-9030. 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. See Results. During the conversation Holik panicked when she realized that she did not have her expensive engagement ring on her hand. 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. The first point of error is overruled. A jewelry box, which contained a substantial amount of jewelry, including some very expensive pieces, was missing from the master bedroom. 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. 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. 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. 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. He began to pet the animal and the dog responded. 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. Appellant's remoteness argument is broad based. 28.01 (West 2006). 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. Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. Moreover, there is no Fourth Amendment protection against the disclosure of subscriber information by Internet service providers. Thomas K. Clancy, The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective and a Primer. A trial court abuses its discretion in the context of evidentiary rulings only if its ruling is outside the zone of reasonable disagreement. In his eighth point of error, appellant contends that the trial judge erred in the admission of a hearsay statement. Appellant's brief, however, relates to several statements by the witness Cynthia Barajas. View the profiles of people named Diane Holick. We need not repeat the applicable authorities cited in our discussion under the fifth point of error. He does not challenge the evidence supporting the commission of the murder. 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)). Rosa, 628 S.E.2d at 95 (quoting Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 9, 4-5, 75, 81 [pretrial]; R. Vol. 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. Evid. The man asked for a floor plan, which Cranford did not have. Her valuable engagement ring was in her possession at 1:30 p.m. on November 15, 2001. The file in question was not seized or opened. 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. ; Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). Glad he's in prison for life. Patrick Anthony RUSSO, Appellant, v. The STATE of Texas, Appellee. In many such encounters, Dr. Coons explained, there is no completed sexual act. 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. 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. Tex.R. Please reach Diane P Holik at (570) 579-6352. He testified that he hypothesized the coincidental chances of obtaining the same nuclear DNA results in this case would be one in 16,817. ref'd). Johnson, 23 S.W.3d at 9. 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. Includes Address (9) Phone (1) See Results. Family and friends are slowly eliminated until it is likely a stranger murder. Evid. The Dog Owner's Home Veterinary Handbook The Complete Dog Book for Kids. Id. The person will play out the fantasies, searching out potential victims. 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. 221 F.3d at 1147. She described the man as appearing nervous and sweaty. Appellant's hearsay objection was overruled. Evid. The State urges that the temporary Internet files relating to necrobabes.com were not opened before the issuance of the search warrant on November 18, 2003. See Tex.R. Appellant cites Bachhofer v. State, 633 S.W.2d 869 (Tex.Crim.App.1982), for the proposition that extraneous offenses that are otherwise relevant are not too remote if they occurred within one year of the charged offense. 403. 2529, 101 L.Ed.2d 472 (1988); Crosby v. State, 750 S.W.2d 768, 780 (Tex.Crim.App.1988). The Registered Agent on file for this company is Kelley Diane Holik and is located at 3919 Barnett Road #918, Wichita Falls, TX 76310. Diane Holik was a resident of New York who was looking to move around the country after she engaged. Cranford had just gotten her children down for a nap. Id. In making his factual sufficiency argument, appellant continues to argue that there was insufficient evidence to establish robbery during the course of a murder. 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. There had been no interrogation along these lines. Appellant also said that he stopped at only one house to ask for directions, which he received from an older gray-haired man. In the early morning hours of November 21, 2001, police officers executed a search warrant at appellant's Bastrop home. This memorial website was created in memory of Diane T Holik, 43, born on September 10, 1958 and passed away on November 16, 2001. SID Number: 04127272 TDCJ Number: 00655871 Name: RUSSO, PATRICK ANTHONY Race: W Gender . 3. Matamoros v. State, 901 S.W.2d 470, 474 (Tex.Crim.App.1995); Brewer v. State, 126 S.W.3d 295, 297 (Tex.App.-Beaumont 2004, pet. In his fifth point of error, appellant urges that [t]he trial judge erred in the admission of extraneous conduct evidence from other8 homeowners and realtors under Tex.R.Crim. When the police officers rolled the body over, a charm fell out of Holik's hair. 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. Tex.R. at 529. P. 33.1. The man took a black-and-white flyer out of the plastic real estate bucket and approached the house. In Fain v. State, 986 S.W.2d 666, 680 (Tex.App.-Austin 1998, pet. Brown, 552 F.Supp. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. See also Robinson v. State, 701 S.W.2d 895, 898 (Tex.Crim.App.1985) (six months is not too remote). Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App.1999). See Tex.R.App. 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. Several of the Internet pages related to the realtors who testified at trial. They worked as a team in managing new college hires for IBM. Penal Code Ann. Cranford thought the drawing bore a very good resemblance to appellant. Barajas then stated, [S]he came back, she picked up the phone and she said, they are back on. Barajas estimated that her conversation with Holik concluded about 1:30 p.m. that afternoon. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.Tex.R. The phone number (570) 427-4098 (Verizon Pennsylvania, Inc) is Diane's. 15. 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. The defense closed with the State at this stage of the trial without offering evidence. In many situations, he wanted to meet the woman realtor alone at the site of the vacant house. 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. 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. Ann. 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. Deem stated that he could not determine whether a particular JPG file was within the scope of the search warrant until he opened it to see if it contained relevant information. Some of these exhibits were introduced into evidence. To establish capital murder committed during the course of a robbery, the prosecution must prove beyond a reasonable doubt, in addition to the alleged murder, that the defendant possessed the specific intent to obtain or maintain control of the victim's property either before or during the commission of the offense.
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