Therefore, the trial court did not abuse its discretion in admitting this testimony under Rule 803(1). See Conner, 67 S.W.3d at 197. She was excited about the real possibility of selling her home. 403.12 He does not advance a claim that his extraneous conduct with these latter witnesses was inadmissible, but only that only certain parts of their testimony about their own emotions, feelings, or actions during or after their interactions with appellant were inadmissible because their probative value was substantially outweighed by the danger of unfair prejudice. Thus, Diane was hoping to offer her past Home and move to Houston, Texas, where he resided. 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 18 search warrant--continued as evidenced by exhibits later introduced into evidence without objection. 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. (internal quotation marks omitted). Id. P. 33.1. He was able to view for free the introductory screens, photographs, and stories pertaining to the death of women by strangulation. The State offered and did eliminate certain parts of the testimony of Melody Blount and Tammy Tayman. Appellant said that some jewelry had been taken from the victim. 202, 355 S.E.2d 897, 899 (Va.App.1987) and United States v. Ross, 456 U.S. 798, 820, 102 S.Ct. There were no statutory pretrial motions involved. Dan Patrick and Grove Norwood, founder and CEO of the Heart of Texas Foundation, attended the commencement ceremony for the first graduating class on May 9, 2015. A man convicted of strangling an Austin woman after entering her home by posing as a potential buyer has been sentenced to life in prison. 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. 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. The second portion of the fifth point of error is overruled.14. In a subsequent search of Russo's home on June 18, 2003, done with a warrant, police seized a personal computer. When Holik was killed, I called police and said Its him., Diane Holik: 5 Fast Facts You Need to Know, Diane Holik, Patrick Anthony Russo: Dateline NBCErotic Horror Fantasy Killer Was Texas Church Leader https://t.co/QBOl3Nieog, Brightly (@Brightly5) September 23, 2016. In his sixth point of error, appellant contends that [t]he trial judge erred in failing to suppress evidence from the illegal search and seizure of the contents of appellant's computer. The point of error is broadly stated and based only on a claimed violation of the Fourth Amendment to the United States Constitution. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Id. Find your friends on Facebook. The Texas Rules of Criminal Evidence was superseded by the Texas Rules of Evidence effective March 1, 1998. At trial, appellant asserted that the witnesses, after learning of the homicide, overreacted in their trial descriptions of their encounters with appellant. Police officers searched appellant's church office on November 21, 2001. Please include what you were doing when this page came up and the Cloudflare Ray ID found at the bottom of this page. Police raided Russo's home in the early morning hours of November 21, 2001. The Brewer court pointed out that there was no evidence to show that a theft or a robbery of the victim took place or that the defendant was implicated in the offense. Akia's family became alarmed when the 21-year-old failed to show up to her own baby shower on May 3. McDonald v. State, 513 S.W.2d 44, 51-52 (Tex.Crim.App.1974), held that relevant evidence involving an extraneous offense one year earlier was not too remote. The facts do not show that Detective Rector exceeded the scope of the search warrant of June 18 in violation of the Fourth Amendment. Police tracked Russo down after they caught wind of a man who claimed to be a potential buyer for multiple homes in the Austin area. pet.). 37, 205.15 Detective Roy Rector, a forensic computer examiner with the Austin Police Department, first made a copy of the computer's hard drive, which is protocol for forensic computer examination. Appellant does not complain of the admission of all the evidence taken from his computer. Although appellant used the phrase extraneous conduct evidence in the point of error, there was no objection on the basis of Rule 404(b). Almost more than five years ago, Diane Holik was brutally murdered in her own Home in Austin, Texas, by Patrick Anthony "Tony Russo". Holik had plans to meet on the weekend with a man who was leaving her house when she talked to Barajas on the telephone. Dianes neighbor, who was also her realtor, let them in. The prosecution called thirteen witnesses who were attempting to sell their homes from May to November 15, 2001, or were realtors. In part because of his Necrobabes.com membership, Russo was found guilty of the November 15, 2001 strangulation of Diane Holik, who worked from her home in Austin and was hoping to sell her house and move in with her fiance in Houston. Rector was then requested by a prosecutor to conduct a more thorough search to look for Internet activity related to real estate. Patrick had a long criminal history. Johnson, 23 S.W.3d at 9. He returned on November 5, 2001, at the same time. at 984-85. ref'd). Akia Eggleston went missing in Baltimore, Maryland in May of 2017. Austin police officers checked Holik's house about 5:30 p.m. on November 16, 2001. Eventually, she bought a home there and made a life for herself with a great circle of friends. While systematically opening all user-created files, [the computer analyst] opened one that contained images that he considered child pornography. Evid. He does not challenge the evidence supporting the commission of the murder. 12. Priest testified that appellant did not appear at the station on the day and time in question. In the jury's absence, Barajas testified that Holik told her that the man offered cash for her home. 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. The defendant in Carey was arrested for the sale of drugs and consented to the seizure of his computer system. You can e-mail him or follow him on Twitter as declanm. Man gets life in prison for strangulation, Several assaults, thefts reported in latest crime activity. During the autopsy, police officers collected biological evidence from the victim's left hand. As a nonprofit newsroom, we rely on members to help keep our stories free and our events open to the public. Furthermore, a hair sample taken from a towel found at the scene and swabs from Dianes hand matched Patricks DNA. 2.01 (West 2003); Ward v. State, 143 S.W.3d 271, 274 (Tex.App.-Waco 2004, pet. ref'd). Knowing that the Austin storm had spawned some tornadoes, Fountain called the Austin Police Department that afternoon asking for a check on Holik. Offers may be subject to change without notice. Though the death case murder is still a mystery. ref'd). Almost more than five years ago, Diane Holik was brutally murdered in her own Home in Austin, Texas, by Patrick Anthony "Tony Russo". The computer was seized pursuant to the warrant. Id. Rule 403 provides:Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.Tex.R. After a keyword search of certain terms proved negative, Id. Appellant was released after 8:00 a.m. on November 21, 2001. Patrick Anthony Russo is serving a life sentence for the 2001 murder of 42-year-old Diane Holik. 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. 19.02(a) (West 2003); Rey v. State, 897 S.W.2d 333, 340 n. 7 (Tex.Crim.App.1995); Brewer, 126 S.W.3d at 297. 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. There were no positive hits on these terms. The victim, an IBM at home supervisor, was found in an upstairs bedroom lying face down. * Gary A. Taylor, Law Offices of Gary Taylor, M. Ariel Payan, Austin, for appellant. He makes no claim that the evidence was inadmissible because it revealed extrinsic acts or misconduct. But just as things were looking up for her, tragedy wasnt far behind. This is the same story appellant was shown to be consistently telling other homeowners about returning on the weekend with his wife to look at the house. The warrant was executed. On Thursday, November 15, 2001, after some difficulty in reaching Holik that morning for their weekly conference, Barajas talked to Holik in her home on the phone about 12:45 p.m. Austin time. 2781, 61 L.Ed.2d 560 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003); Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim.App.2000). >> do you remember ever talking to her? P. 33.1. See Tex. We cant say their name. 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. In such an analysis, we view all the evidence in a neutral light. He said that he was a music minister at a church in Bastrop County, Texas. 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. 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. Appellant could not be excluded from two hairs retrieved from a green towel found in the living room.5. Appellant worked at the New Life In Christ Church in Bastrop. 404(b). He was able to view for free the introductory screens, photographs and stories pertaining to the death of women by strangulation. The police never mentioned, however, that Holik's jewelry was missing. 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. The sentence was returned Friday. 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.. 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. He confirmed with a billing company that Russo had been a member of Necrobabes.com and had viewed Web pages there dealing with manual and ligature strangulation. 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. Barajas warned Holik that she should not let strangers into her home when she was alone. Evid. 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). The trial court did not rule on the matter until trial. 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. 103(a)(1). The trial court found that the evidence of seven witnesses was not too remote and was relevant. At the hearing, no objections were addressed to the testimony offered. Evid. The prosecution offered evidence of appellant's financial condition during the time period in question. 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 that point, he stopped his search and called Malchow [his supervisor]. He had given different names to them and said that he would pay in cash. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Rector then performed some keyword searches on the hard drive copy using Diane Holik, Pathfinder, and Lakki Brown (Holik's realtor). 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. Rule 403 more strongly favors admissibility than did many of the earlier formulations of the appropriate balancing test, with the opponent of the evidence bearing the burden of showing that the probative value is substantially outweighed by countervailing factors. 1 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Texas Practice: Guide to the Rules of Evidence, 403.1 (3d ed.2002) (citing Yohey v. State, 801 S.W.2d 232, 236 (Tex.App.-San Antonio 1990, pet. See also Huffman v. State, 746 S.W.2d 212, 217 (Tex.Crim.App.1988); Whitaker v. State, 977 S.W.2d 869, 872-873 (Tex.App.-Beaumont 1998, pet. The instant offense occurred on November 15, 2001. No. Click here to read about the details of Russos search warrant. Police also found that said man had identified himself differently to each homeowner. In Fain v. State, 986 S.W.2d 666, 680 (Tex.App.-Austin 1998, pet. See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). A state jury found Russo guilty of capital murder, and he was given a life sentence. Holik explained why she was late in calling Barajas and added: This guy just left. Holik said that she planned to meet with the man and his wife the following Saturday to show her house. Tonight, Dateline will investigate the details of Holik's death. About a week after the murder, Patrick was brought in for questioning. Dan Patrick then a state senator and Whitmire visited Angola, La., where officials credit their own program for changing the prisons decades-long culture of violence. With regards to seven days after Dianes homicide, Tony was taken as a killer in court. Harmond v. State, 960 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] This weekend, Holiks story will be highlighted on an episode of Dateline NBC. Id. Evid. On appeal, Russo raised two issues that are relevant to Police Blotter: First, he claimed that the police exceeded their computer-search authorization given in the June 18 search warrant, and second, he said the Necrobabes.com excerpts should not have been admitted as evidence. This was done with the consent of the Web site operator. 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. Graduate Lloyd E. Gregg sings a hymn during the commencement ceremony for the first graduating class of the Southwestern Baptist Theological Seminary program. 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. He then stated that he and his wife could return the next day. We conclude that the trial court did not abuse its discretion in admitting the exhibits as relevant evidence, or in finding through the balancing process that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. >> but an odd coincidence. He seemed to fit the bill of their suspect. The State did not offer this evidence before the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex.App.-Austin 1997, no pet.). 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. 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. She opened the front door for them. >> i studied for theology to become a minister. 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. In Hall v. State, 970 S.W.2d 137, 141 (Tex.App.-Amarillo 1998, pet. The rationale for the present sense impression exception to the hearsay rule is that (1) the report at the moment of the thing then seen or heard is safe from any error from defect of memory of the declarant, and (2) there is little or no time for a calculated misstatement. DNA evidence found at the scene also tied Patrick Anthony Russo to the murder of Diane Holik. Her $17,500 engagement ring was missing. Later the same day, appellant went to the home of his pastor and discussed his conversation with the police. The officers arrived at Dianes home at around 5:30 PM the same day. Rector recovered two hours, thirty-six minutes, and fifty-five seconds of Internet history of the necrobabes.com Web site. Detective Rector reviewed the temporary Internet files and the "index.dat" files to determine the computer's Internet historyOn August 1, 2003, Rector presented the extracted Internet history to a prosecutor to "see what is real estate and what is not." She was going to move from Austin, Texas, a place she called home for many years. 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. 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. at 224. 6. He then inquired whether there was a husband or boyfriend with whom he could deal. The license plate trail led to Russo, who worked as a worship leader and music director at New Life In Christ Church in Bastrop, Texas, a short drive from Austin. The defense closed with the State at this stage of the trial without offering evidence. Love #Dateline? Appellant then asked several times when Cranford's husband would be home. 23. Brazoria Countys 33 newest Christian ministers arent your typical men of God. Wiki, Biography, Age, Spouse, Net Worth, Fast Facts. Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App.1999). 15. 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. Id. The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. 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. On November 16, 2001, Diane missed her plan for getting work done; every last bit of her partners couldnt contact her; from that point onward, they asked the police for a check. We need not recite all the facts and circumstances demonstrating the lack of remoteness. 21. Its literally going to change the culture. Read More: How Did Andra and Brad Sachs Die? (statement to neighbor who lived less than one minute away that particular man was in declarant's apartment was made immediately thereafter.23 A functional test should be applied, i.e., whether the proximity in time is sufficient to reduce the hearsay danger of faulty memory and insincerity. Goode, 803.2 (citing Beauchamp v. State, 870 S.W.2d 649, 653 (Tex.App.-El Paso 1994, pet. Appellant appeared broken and downcast when making his statements. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App.2003); Maldonado, 998 S.W.2d at 243. 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. In capital murder offenses committed during the course of a robbery, see Tex. On November 15, 2001, IBM supervisor Diane Holik was found strangled in her bedroom. 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). Id. Circumstantial evidence of intent is not required to meet the same rigorous criteria for legal sufficiency as circumstantial proof of other offensive elements. Id. However the demise case murder is as yet a secret. Akia's family became alarmed when the 21-year-old failed to show up to her own baby shower on May 3. Patrick Anthony RUSSO, Appellant, v. The STATE of Texas, Appellee. In evaluating the trial court's determination under Rule 403, a reviewing court is to reverse the trial court's judgment rarely and only after a clear abuse of discretion, recognizing that the court below is in a superior position to gauge the impact of the relevant evidence. The scene covering the Texas Killing is After the Storm.