7. 15. Only the numbered exhibits were admitted into evidence. The man told some that he would return with his wife on the weekend to see the house, that he had recently sold a ranch or some property, and that he would be paying cash. This court found no abuse of discretion in the admission, pointing out that the complained-of evidence was offered to show the victim's state of mind on July 10, some two weeks before her disappearance, as to her intent to continue her relationship with Fain. Id. Details. 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. 20. He returned on November 5, 2001, at the same time. Holik's body was found face down on the floor in an upstairs guest bedroom. A homeowner from another subdivision saw the drawing in the newspaper and called the police. ref'd); Miranda v. State, 813 S.W.2d 724, 733, 742 (Tex.App.-San Antonio 1991, pet. The man took a black-and-white flyer out of the plastic real estate bucket and approached the house. Appellant generally complains that all the exhibits were irrelevant, but if relevant, their probative value was substantially outweighed by their prejudicial effect. 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. Guevara, 152 S.W.3d at 49. Whether to admit an out-of-court statement under an exception to the hearsay rule is committed to the trial court's discretion. Hickson's testimony thus falls within the present sense impression exception to the hearsay rule. It was shown at trial that she wore the charm on a necklace. 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. 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 evidence shows that appellant and his wife had a $199,000 mortgage on their trailer home in Bastrop.4. Diana Olick Profile - CNBC Donald Ray Holik, 56. Then multiple women report a man behaving strangely while looking at properties for sale or rent. Diane Holik Profiles | Facebook The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). The reliance is misplaced. 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). He also objected to excerpts from the testimony of certain other witnesses under Rule 403. He testified that he hypothesized the coincidental chances of obtaining the same nuclear DNA results in this case would be one in 16,817. The jury may accept or reject all or any part of any witness's testimony, Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App.1998), and resolve any conflicts in the evidence. 404(b). See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). SID Number: 04127272 TDCJ Number: 00655871 Name: RUSSO, PATRICK ANTHONY Race: W Gender . 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. Barb (@JetSkiGirlRN) January 15, 2017 Suddenly, appellant was close behind her in the room and still was not speaking. It has been said that three principal requirements must be met before hearsay evidence may be admitted as a present sense impression: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration must be contemporaneous with the event. 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. Mental culpability is of such a nature that it generally must be inferred from the circumstances under which the prohibited act occurred. Austin police officers checked Holik's house about 5:30 p.m. on November 16, 2001. 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. Evid. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App.2003); Maldonado, 998 S.W.2d at 243. Tony Russo is a pathological liar & murderer. Appellant claimed that he knocked on the front door but no one at the radio station answered. The trial court did not abuse its discretion in admitting evidence of the contents of appellant's computer as contended. The agent was not required to accept as accurate any file's name or suffix and limit his search accordingly, as experienced hackers often intentionally mislabel files and directories in order to conceal information. 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. 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 42-year-old IBM supervisor was in the midst of selling her large upscale home in Austin,. Killer Lingered in Diane Holik's Home - NBC There is, however, no legal requirement that property stolen must be recovered in whole or in part to constitute the offense of robbery. The second portion of the fifth point of error is overruled.14. Stars Diane Holik Patrick Russo Lester Holt See production, box office & company info Add to Watchlist Photos Top cast 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. ref'd). When trying to sell her home, a man, generally fitting the description, came to her home in May 2001 just after her husband left for work. Cranford was close to him. 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. Diane Holik Lucas, 63. Moreover, a lawful search extends to the entire area in which the object of the search may be found.. Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex.Crim.App.2000). In assaying all the evidence under the Jackson standard of review, a reviewing court must consider all evidence, rightly or wrongly admitted, that the trier of fact was permitted to consider. Police Blotter: Necrobabes.com leads to murder conviction Before conducting any examination of the computers, the police obtained a search warrant to search the files on the computers for names, telephone numbers, ledger receipts, addresses, and other documentary evidence pertaining to sale and distribution of controlled substances. Id. Plenty of dogs at Midland Animal Services are waiting for their furever home. Appellant said that some jewelry had been taken from the victim. Upon inquiry, the defendant told the officers that the computer contained child pornography. 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. 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. Appellant was released after 8:00 a.m. on November 21, 2001. 2. As appellant acknowledged, this was a Web site which is open to any user of the Internet. State's Exhibits 623 through 724 were copies of images and stories that Detective Rector, with a lab computer, recreated from the Web site necrobabes.com using information from the Internet history of appellant's computer as to when appellant accessed the Web site. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005); Clewis, 922 S.W.2d at 134. Cranford put her Great Dane dog in the study. ), to support his argument. Barajas, from Los Angeles, California, testified before the jury that she was an IBM coworker with Diane Holik. 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. 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. Diane Holik, Patrick Anthony Russo: 'Dateline NBC'-'Erotic Horror 1801, 114 L.Ed.2d 297 (1991). She had been tied up and strangled, an autopsy report confirmed. Almost any relevant evidence offered by one party is going to be prejudicial to the opposing party. For a more liberal view of the requirement of contemporaneousness, see United States v. Parker, 936 F.2d 950, 954 (7th Cir.1991); United States v. Blakey, 607 F.2d 779, 784-86 (7th Cir.1979). A person who is observing or experiencing something may explain or describe it to someone else over the telephone. 803(3). 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. In his brief, appellant urges that the evidence admitted over his hearsay objections had no relevancy to any material issue in the case. He was able to view information about the payment of fees and the purchase of a membership on the Web site. In the instant case, appellant challenges only the legal sufficiency of the evidence to establish the underlying offense of robbery. Hearsay is a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Id. Were [the computer analyst] to limit his search to files whose names suggest the type of evidence he seeks, it would be all too easy for defendants to hide computer evidence: Name your porn file 1986 tax return and no one can open it. Any such contention is inadequately briefed. 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). 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. Diane Holik: 5 Fast Facts You Need to Know Patrick Anthony Russo, Diane Holik's Killer: 5 Fast Facts You Need to Know. Diane Holik Vanmil, Miami, FL (33144) - Spokeo Current counsel makes no belated request for the record. There were no trial objections to the subject matters advanced in this point of error. 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. The proponent of evidence usually has the original burden of showing that it is relevant and admissible. It was an awkward situation. Passwords were issued allowing entry to the said Web site as a result of the memberships. Keeping in mind the particular facts of the instant case, we find no violation of the Fourth Amendment. 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. 6. 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. 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. For murder to qualify as capital murder in the course of a robbery, the killer's intent to rob must be formed before or at the time of the murder. When Deem opened a JPG file, he viewed an image that he believed to be child pornography. In points three and four, appellant claims that the evidence was factually insufficient to establish the same issues raised in points one and two. Appellant seeks to distinguish Bachhofer on the basis that the instant case did not include any criminal act by appellant during the encounters. Killer Lingered in Diane Holik's Home - Oxygen Official Site Id. 19.03(a)(2), the legal and factual sufficiency standards apply to both the charged and underlying offenses. Diane Holik: 5 Fast Facts You Need to Know | Heavy.com 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. Texas, 2001: Diane Holik is strangled in her home. A composite drawing of the man was prepared by an artist with directions from one of the homeowners. Diane Tammy Holik (1958-2001) - Find a Grave Memorial The grave site of Diane T Holik / Plot 14310373. We need not recite all the facts and circumstances demonstrating the lack of remoteness. He insisted that he be shown only vacant houses. The sixth ground of error is overruled. 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. Log in or sign up for Facebook to connect with friends, family and people you know. 9. To establish the murder portion of the charged offense, the State must prove beyond a reasonable doubt that the defendant intentionally or knowingly caused the death of an individual as charged in the indictment. House Shopping or Homicide Shopping? | Diane Holik Case Analysis ref'd). 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. Though the death case murder is still a mystery. There was evidence that appellant's wife inquired about property in Bastrop County. His search was broadened to consider the Internet history, searching for documents relating to real estate, including Web pages. Diane was a New York native who moved around the country a lot, thanks to her work. Diane Holik (8 matches): Phone Number, Email, Address - Spokeo 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. Diane Holik was a resident of New York who was looking to move around the country after she engaged. At that point, he stopped his search and called Malchow [his supervisor]. Commonwealth v. Marshall, 287 Pa. 512, 135 A. All the evidence must be considered, whether rightly or wrongly admitted. Her valuable engagement ring was in her possession at 1:30 p.m. on November 15, 2001. Facebook gives people the power to. The jury returned a general verdict of guilty of capital murder. Where different theories of the offense are submitted to the jury in the disjunctive, as in the instant case, a general verdict is sufficient if the evidence supports one of the theories. She opened the front door for them. Evid. See Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App.1996); Cardenas v. State, 115 S.W.3d 54, 62 (Tex.App.-San Antonio 2003, no pet.). 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. Please reach Diane P Holik at (570) 579-6352. 18. Appellant overlooks the fact that at no time did he advance any relevancy objection at trial as required. Cranford left the room and appellant stayed behind. Lang v. State, 698 S.W.2d 735, 736 (Tex.App.-El Paso 1985, no. See Tex.R.App. 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). 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.). There were no statutory pretrial motions involved. ref'd). In capital murder offenses committed during the course of a robbery, see Tex. Some of these exhibits were introduced into evidence. We have the court reporter's affidavit stating that the penalty stage record is available, but that appellant's first appointed appellate counsel did not request the transcriptions of that portion of the record. There they find her lifeless body and a killer who's left few clues behind. Id.19. 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. Cathy Vance, a forensic analyst with the white collar crime unit in the district attorney's office, analyzed appellant's financial records. (internal quotation marks omitted). Diane Holik Found Dead After Tornadoes Hit Texas Now Playing Preview Killer Lingered in Diane Holik's Home 2:18 Preview "Something Bad Happened" to Diane Holik 1:47 Preview One Possible Clue Found at Diane Holik Crime Scene Trending on Oxygen 2:00 Accident, Suicide, or Murder Grant Whitaker's Girlfriend Becomes Suspicious of Mavrick Fisher 3:03 Cranford thought the drawing bore a very good resemblance to appellant. At some point, Rector was able to parse the Internet history relating to necrobabes.com and determine the dates and times on which the computer had accessed the necrobabes.com Web site on the Internet. ADDITIONAL LINKS Post Question For This Company Contact Us Regarding Your Company Profile All Companies Named A PLACE FOR PAWS Search All Pennsylvania Companies After viewing the video, the officer ceased the search on the hard drive and obtained a new search warrant authorizing a search for evidence of possession of child pornography. See Tex.R.App. 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. She saw a gold or champagne-colored minivan pull up to the for sale sign in the yard. He was a worship leader and music director. In Fain v. State, 986 S.W.2d 666, 680 (Tex.App.-Austin 1998, 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. We conclude that the trial court did not abuse its discretion under Rule 803(3) in admitting the statements concerning Holik's plan and intent to meet the man on the following Saturday. Appellant was ready to submit to the authority of the pastor. Diane Holik OfficialUSA.com Records Brown, 552 F.Supp. 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. In points six and seven, appellant contends that the trial court erred in failing to suppress evidence resulting from the illegal search of appellant's computer and then admitting irrelevant and prejudicial extraneous evidence of the computer's contents.2 We will affirm the judgment of conviction. 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. A violent thunder and rainstorm descended upon Austin in the afternoon of November 15, 2001. 313, 508 A.2d 976, 985 (1986); State v. Flesher, 286 N.W.2d 215, 216 (Iowa 1979)). Appellant's son, Anthony Russo, testified that he had access to the computer, but never used his parents' credit card to purchase anything on the computer and never viewed images on the computer of people being killed. 2737). Hon. Walser, 275 F.3d at 983-84. If appellant preserved error for review, it is based on these pretrial rulings under the unique circumstances described. Holik's death story has been highlighted on the episode of Dateline. He then sat down and covered his face with his hands. Outgoing Pioneer Natural Resources CEO Scott Sheffield feels his successor Rich Dealy is ready to Opinion: Midlanders no longer trust the MPD, our newly elected mayor and the DAs office. 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). Supreme Court | NYCOURTS.GOV - Judiciary of New York Diane Holick Profiles | Facebook See Tex.R. 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. 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. Alvarado, 912 S.W.2d at 207. 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. ref'd), Torres v. State, 794 S.W.2d 596, 599-600 (Tex.App.-Austin 1990, no pet.)). The first point of error is overruled. There was no objection to this latter statement which was Barajas's opinion, not a present sense impression exception to the hearsay rule. (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. Diane P Holik, (631) 643-9030, 400 1st St, Weatherly, PA 103(a)(1). 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. He compared the samples with known DNA samples from the victim, the appellant, the victim's fianc, and a male coworker. According to Detective Rector's testimony, the unallocated clusters at some point were resident in the computer but had been deleted. 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. Resides in Austin, TX. Diane Holik was a resident of - The Arts of Entertainment - Facebook 221 F.3d at 1147. There had been a power struggle between the two at the church. 17. 8. 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. At trial, appellant asserted that the witnesses, after learning of the homicide, overreacted in their trial descriptions of their encounters with appellant. ref'd). Capstone Green Energy is providing a second microturbine energy system to a large West Texas oil Four new members joined the Petroleum Hall of Fame at an induction dinner honoring the Class of 2023, Letter to the Editor: Truth lost in Trinity trial aftermath, Trinity trial aftermath puts City of Midland, DA's Office at odds, Petroleum Hall of Fame inducts four into Class of 2023, Bush Tennis Center asks MDC for nearly $1M for indoor facility, HS BASEBALL: MHS ends wild 2-6A race with walk-off win in extras, Opinion: Update the library's questionable materials procedures, MDC board to vote on investing in west Midland road projects, Check out these adoptable animals in Midland, HS BASEBALL: Midland High, Legacy set playoff matchups, Pioneer's Natural Resources' Sheffield is ready for retirement, Capstone Green Energy provides microturbine for Permian producer. Templin v. State, 711 S.W.2d 30, 34 (Tex.Crim.App.1986). In the jury's absence, Barajas testified that Holik told her that the man offered cash for her home. Includes Address (9) Phone (1) See Results. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App.1995).
