Appellant relies upon Brewer v. State, 126 S.W.3d 295 (Tex.App.-Beaumont 2004, no pet. Hickson's testimony thus falls within the present sense impression exception to the hearsay rule. She had been tied up and killed, and ligature marks were present on her body, according to Inquisitr. 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. 803. You can e-mail him or follow him on Twitter as declanm. "Tony Russo" whose real name is Patrick Anthony Russo has been confirmed that he brutally murdered Diane Holik at her Home. The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. 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. But, when the skies cleared and Diane Holik missed an important meeting, friends and family became concerned. at 95-96 (citing Kearney v. Commonwealth, 4 Va.App. (internal quotation marks omitted). If the computer erases the index, the file is still out there in the unallocated clusters until the computer reuses that space.. 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. Patrick Anthony Russo is serving a life sentence for the 2001 murder of 42-year-old Diane Holik. All persons inherit mitochondrial DNA from their mothers-so maternal relatives have the same M-DNA. Nelson examined seven hairs recovered from the victim's home. Rector examined the computer with a program called Encase, which is designed to recover any data located on a hard drive, whether it is an active computer file or a previously deleted file. 9. Appellant was released after 8:00 a.m. on November 21, 2001. 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. 19.03(a)(2), the legal and factual sufficiency standards apply to both the charged and underlying offenses. The sixth ground of error is overruled. In making his factual sufficiency argument, appellant continues to argue that there was insufficient evidence to establish robbery during the course of a murder. Russo, a part-time music minister, pretended he was interested in purchasing Holiks home, and claimed that he could buy the $450,000 house in cash, even though his bank account was later found to only have had $1,796 in it at the time. Under all the circumstances, if error was properly preserved and presented, we conclude that the trial court did not abuse its discretion in overruling appellant's pretrial Rule 403 objections. State's Exhibit 621 was also generated by Rector and showed Internet activity on the computer on April 27, 2001, with the user-profile of a Patrick Russo and with the use of the AOL (America Online) engine to search for a subject associated to asphyx. To this exhibit, appellant expressed no objection. This exhibit is not before us for consideration of its relevancy. There was no sign of a sexual assault.. 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. The Diane Holik cases also inspired the Investigation Discoverys show Motives And Murders: Cracking The Case. 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. Almost more than five years ago, Diane Holik was brutally murdered in her own Home in Austin, Texas, by Patrick Anthony "Tony Russo". The trial court did not abuse its discretion in admitting evidence of the contents of appellant's computer as contended. 2. At the pretrial hearing, appellant's trial counsel told the trial court that he first wanted to hear the testimony of Detective Roy Rector, the forensic computer expert, and then tailor his motion to suppress accordingly. In his related seventh point of error, appellant urges that the trial judge erred in admitting irrelevant and prejudicial extraneous evidence of the contents of appellant's computer. Appellant argues that the evidence was not relevant under Texas Rules of Evidence 401 and 402 and was more prejudicial than probative. Proof of a completed theft is not required. 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. "Tony Russo" whose real name is Patrick Anthony Russo has been confirmed that he brutally murdered Diane Holik at her Home. JPG, also known as JPEG files, contain images. As a result, the court concluded that the detective had temporarily abandoned his search for drug trafficking evidence and intentionally commenced a search for more child pornography not authorized by the object of the existing warrant. We observe that a general relevancy objection, even though timely, does not preserve an extraneous offense claim under Rule 404(b). She had planned to sell the home, get married and move to Houston. Tammy Cranford identified appellant as the man who came to her home at 4505 Tello Path in south Austin about 1:30 p.m. in early November 2001. Rankin, 974 S.W.2d at 718. 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. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). Later, he parsed out of that history the part associated with necrobabes.com detailing appellant's activity with it. Later, she met her future fiance through a dating service. 803(3). He was able to view information about the payment of fees and the purchase of a membership on the Web site. 22. His search was broadened to consider the Internet history, searching for documents relating to real estate, including Web pages. A jewelry box, which contained a substantial amount of jewelry, including some very expensive pieces, was missing from the master bedroom. Five of these witnesses were Great Hills residents who were approached at their homes on the day of the murder. Tex.R. This was done with the consent of the Web site operator. The man, whom Cranford later identified as appellant, noted that Cranford had switched realtors, but the switch had occurred in July 200l. 301, 304 (Pa.1926) (on morning of her death, victim told fellow passenger on train that she was going to meet defendant that evening). See Conner, 67 S.W.3d at 197. We need not reiterate the evidence. The prosecutor requested Rector to determine if there was additional information of that type on the Internet history concerning "Necrobabes.com.". The victim, an IBM at home supervisor, was found in an upstairs bedroom lying face down. ; Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). Reviewing courts are not fact finders. We need not recite all the facts and circumstances demonstrating the lack of remoteness. Zimmerman v. State, 860 S.W.2d 89, 93 (Tex.Crim.App.1993). 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. The underlying purpose can be killing, dominating, or humiliating another. She was face down and had ligature marks around her neck. Holik's wrist bore indentations showing discernible redness, indicating that her heart was still beating when the wrists were bound. at 528; see also Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. The man asked for a floor plan, which Cranford did not have. See Watson, 204 S.W.3d at 414-15. 03-04-00344-CR. We overrule the third point of error. The State contends that the evidence shows that the computer file in question was not itself searched until after the issuance of the search warrant on November 18, 2003. Appellant cites no authority to support his contentions. A special agent, while transferring computer files to CD-ROMS to facilitate the case agent's subsequent search, came across a directory labeled tiny teen which contained JPG files. 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. Who Is Lawyer Robert Lewis on Blue Bloods? See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). In addition to testimony at Russos trial, revelations abouthis subscription to necrobabes.com (an asphyxiation-type pornographic website)andDNA evidence linked Russo to Holiks murder. Penal Code Ann. 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.). 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. Prosecutors said Russo frequented Internet sites that contained stories and photos about asphyxiating women. 2737). 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. A spare front door key with a ribbon was missing from the doorknob of a ground floor door. Patrick Anthony Russo of Texas is one of the 33 graduates of the prison seminary program at the Darrington Unit prison in Brazoria County. Evid. However, there was no interrogation to establish these facts. 2737, 49 L.Ed.2d 627 (1976). at 1273. She opened the front door for them. by Marjorie Kamys Cotera and Jim Malewitz 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. They were engaged within two months of knowing each other. Appellant Patrick Anthony Russo appeals his conviction for capital murder. Wiki, Biography, Age, Spouse, Net Worth, Fast Facts. Decided: June 07, 2007 Before Chief Justice LAW, Justices PURYEAR and ONION. 5. Dr. Richard Coons, a psychiatrist and an attorney, testified concerning his training in human sexuality. Holik's body was found face down on the floor in an upstairs guest bedroom. He became sweaty and very shaky, and there was a strange look in his eyes. 20. He looked at her and his demeanor seemed to change. Please include what you were doing when this page came up and the Cloudflare Ray ID found at the bottom of this page. Deem noted that it was common practice to manually open picture files because text (such as chat sessions) could be found in JPG files. But we are sure that it is not available and his spouses name is not available. The evidence indicates that Holik's dogs had been confined in the house for some time. The trial court further limited the admitted images to those that appellant viewed on his computer between the dates of October 7 through November 13, 2001, the latter date being two days before the murder occurred. Tex.R. Rector presented the information extracted from the computer to the prosecutor, who noticed that the computer's Internet history (which contained no Web pages or images) made reference to a Web site named necrobabes.com, which was later determined to be an asphyxiation-type pornographic Web site. He said that he did not enter any houses. 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. 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. On October 29, 2003, during a separate pretrial hearing, the written objections were mentioned. Collectively, Saturday's graduates earned a 3.7 grade-point average in the program. 8. 1998, no. Dr. Coons explained that a sexual sadist is sexually stimulated with a fantasy life and becomes obsessive. Choate allowed him to see the inside of the house. We have no information about his girlfriend/boyfriend. On this latter date, she took note of the license plate number on his van. Commonwealth v. Marshall, 287 Pa. 512, 135 A. now get 0% apr for 72 months, plus $500 That includes some who will spend the rest of their lives behind bars. Here's another look at the commencement ceremony for the first graduating class of the Southwestern Baptist Theological Seminary program inside the Darrington Unit. 9, 4-5, 75, 81 [pretrial]; R. Vol. The trial court was careful to eliminate images of unrelated sexual activity and nudity, leaving only those images showing ligature and manual strangulation of women and other items pertinent to this circumstantial evidence case where a woman was strangled in her own home. See Tex. Thats Michael Imperioli, 2012-2023, 2paragraphs Productions, LLC. 403. 16. While the authorities were canvassing in the neighborhood, they came across some peculiar information from many homeowners who had their property on sale. 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.) When Deem opened a JPG file, he viewed an image that he believed to be child pornography. Works at Con Edison. However the demise case murder is as yet a secret. In many situations, he wanted to meet the woman realtor alone at the site of the vacant house. 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. at 1271, the detective began to browse through the file directories in Carey's computer and stumbled across a JPG file18 and opened it. See Photos. Ann. In his brief, appellant urges that the evidence admitted over his hearsay objections had no relevancy to any material issue in the case. The murder was discovered when one of her co-workers at IBM became concerned that Holik had missed a scheduled meeting and was unreachable. 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. The Texas Rules of Criminal Evidence was superseded by the Texas Rules of Evidence effective March 1, 1998. Id. An earlier membership had been issued on February 28, 2001, to a Janet Russo at the same address. Tonight, Dateline will investigate the details of Holik's death. 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). A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. A Bastrop area telephone service representative testified about cell phones registered to appellant and his wife. We find no such motion or pretrial ruling thereon. Now, the police had to figure out who visited Diane in that period. A composite drawing of the man was prepared by an artist with directions from one of the homeowners. 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. 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. Many of realtors were uncomfortable while showing homes to the man. 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. Johna Ramirez, who lived in the Upland subdivision of Austin, identified appellant as the man who came to her house, which was for sale, on May 15 and November 5, 2001, both times just after her husband left for work. As per the show, he was arrested multiple times for assaulting women. 75 Miss. Blount told the Lubbock Avalanche-Journal, I was one of the first people to report him to the police and I wasnt taken seriously then. Thus, the jury may infer the requisite intent to rob from the conduct of the accused. After the State rested its case-in-chief at the guilt/innocence stage of the trial, appellant's motion for an instructed verdict of not guilty was overruled. The second portion of the fifth point of error is overruled.14. Of the 185 total inmates enrolled in the program, about two-thirds have been convicted of homicide. Love #Dateline? At that point, he stopped his search and called Malchow [his supervisor]. In analyzing a challenge to the legal sufficiency of the evidence, a reviewing court does not realign, disregard, or weigh the evidence. In 2004, he was sentenced to life in prison. Dr. Coons's expert opinion was that the facts given to him showed a motive of sexual gratification through ligature strangulation. Such motive is not inconsistent with evidence of intent to commit robbery during the same incident where the intent to rob is timely formed. Id. The realtors' telephone numbers appeared on appellant's phone bill. We disagree. by 2Paragraphs in Culture | September 22, 2016. Tonight, Dateline will be investigating the murder of Holik, which was committed by a man named Patrick Russo. Several of the Internet pages related to the realtors who testified at trial. * Gary A. Taylor, Law Offices of Gary Taylor, M. Ariel Payan, Austin, for appellant. See Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App.1978); Skillern v. State, 890 S.W.2d 849, 880 (Tex.App.-Austin 1994, pet. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. But just as things were looking up for her, tragedy wasnt far 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. The fianc and coworker were excluded, but Mills could not exclude DNA samples from the victim or appellant on the swab. 401 & 403.9. United States v. Carey, 172 F.3d 1268, 1271 (10th Cir.1999). Cranford said that appellant's eyes somehow looked bigger and deeper and darker and that he seemed to be a different person. Current counsel makes no belated request for the record. He knew that Holik had been trying to sell her home. Click to reveal This weekend, Holiks story will be highlighted on an episode of Dateline NBC. 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. You can email the site owner to let them know you were blocked. Diane was face down and had ligature marks around her all-over neck according to the source. Detective Roy Rector initially searched the computer using the Encase software for references to Holik and found none. The State may prove its entire case by circumstantial evidence alone if it proves all the elements of the charged offense beyond a reasonable doubt. Her fiance, who was in Houston, was quickly ruled out. After being let into the house by a neighbor, the police found a fully clothed body in an upstairs bedroom. The facts of Carey are not the facts of the instant case. 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. Go ahead and find out with this little quiz https://t.co/Lkr0bKeh6f, Dateline NBC (@DatelineNBC) September 23, 2016. 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. The 42-year-old IBM supervisor was in the midst of selling her large upscale home in Austin, Texas when a man posing as a potential buyer strangled her to death in her house. Appellant inquired whether the dog would calm down if petted. ref'd); 1 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Texas Practice: Guide to the Texas Rules of Evidence 401.3 (2d ed.2002). See United States v. Mitchell, 145 F.3d 572, 576 (3d Cir.1998); accord United States v. Ruiz, 249 F.3d 643, 646 (7th Cir.2001).

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