Barajas related that Holik was excited to be selling her home and was eager to do so.22. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). The indentations appeared to have been made by plastic zip ties or flex-cuffs once used by police to bind prisoners' wrists together. 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. Russo appealed the capital murder conviction in 2007 but was denied. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site. Id. Rector recovered two hours, thirty-six minutes, and fifty-five seconds of Internet history of the necrobabes.com Web site. at 528; see also Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 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. https://www.youtube.com/watch?v=tLA35iwLLBA. The victim, an IBM at home supervisor, was found in an upstairs bedroom lying face down. 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". Thus, there was no probative evidence of an intent to rob. Only the numbered exhibits were admitted into evidence. He was not permitted entry and rejected statements suggesting that he contact his realtor. 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. Through irrefutable scientific evidence, the police were able to bring the culprit to justice. Appellant's relevancy objections were specifically directed only to the question of remoteness concerning appellant's encounters with certain female homeowners and realtors. The man asked for a floor plan, which Cranford did not have. Dr. Coons viewed the images shown to have been accessed by appellant on his computer from the necrobabes.com Web site as well as photographs of the victim's body. 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. 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. Many of realtors were uncomfortable while showing homes to the man. The 43-year-old worked for IBM as an executive, ultimately settling in Austin in 1996. (3)Then Existing Mental Emotional or Physical Condition. In the absence of the jury, the trial court conducted a hearing on Barajas's testimony and made its rulings. Assuming that the objections were timely made, see Tex.R.App. https://www.facebook.com/datelinenbc/videos/10154415533046420/, Church Leader Had Subscription To Death Porn Site. 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. 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. Eventually, she bought a home there and made a life for herself with a great circle of friends. The prosecutor noted that the Internet history made reference to a "Necrobabes.com. 403. Appellant cites no authority to support his contentions. His search was broadened to consider the Internet history, searching for documents relating to real estate, including Web pages. The point of error is multifarious and is not easy to decipher. He qualified as an expert witness for the State. A trial court abuses its discretion in the context of evidentiary rulings only if its ruling is outside the zone of reasonable disagreement. Appellant's telephone number was given and identified. Investigation Discoverys Six Degrees of Murder: Ties That Bind chronicles the work that went into catching Dianes killer. Last week, Inquisitr brought you the case of erotic fantasy killer Patrick Anthony Russo, which was also profiled on Dateline NBC. at 1146. 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. The prosecution is not required to prove motive in any case. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999) (claim of error not preserved where defendant objected on the ground the testimony was hearsay, but failed to object to the relevancy of the testimony). Watch Dateline's "The Accused" this Friday, September 30, at 9/8 p.m. Central on NBC. document.getElementById("ak_js_1").setAttribute("value",(new Date()).getTime()), Who is Kim Pauckner? Outcome: Appeals court rules defendant's AOL searches for asphyxiation and visits to Necrobabes.com were reasonably used as evidence and upholds conviction. Works at . However the demise case murder is as yet a secret. With regards to seven days after Dianes homicide, Tony was taken as a killer in court. Current counsel makes no belated request for the record. ", Rector did not know what that Web site was. 6. The search recovered eight images of child pornography including the two transmitted ones. . The Texas Rules of Criminal Evidence was superseded by the Texas Rules of Evidence effective March 1, 1998. The house was listed with a realtor for $435,000, and there was a for sale sign in the front yard. It is not an element of any crime, but evidence of motive is generally admissible because it is relevant as a circumstance tending to prove guilt. Kimberlyn Nelson of Mitotyping Technologies at State College, Pennsylvania, testified that she specialized in mitochondrial DNA testing. We have no more information about his spouse. Rule 802of the Texas Rules of Evidence states: Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. 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. Holik's wrists had been bound, and there were marks around her neck indicating strangulation by ligature, meaning a garrote such as a cord or rope. Holik's wrist bore indentations showing discernible redness, indicating that her heart was still beating when the wrists were bound. In Brown, a maintenance worker at an apartment building was convicted of murdering a tenant's live-in girlfriend, Shelby Weinstein. 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). We conclude that the general rule stated in Cooper is applicable capital murder cases where the offense was committed in the course of a robbery.7. Offers may be subject to change without notice. One woman called to say that a man who looked similar to the sketch had come by her house earlier with the same excuse as the others mentioned. Now, the police had to figure out who visited Diane in that period. Keeping in mind the particular facts of the instant case, we find no violation of the Fourth Amendment. The State was able to tie some of the viewings to the dates that appellant visited some of the female homeowners and realtors, in order to show intent and motive. Thats Michael Imperioli, 2012-2023, 2paragraphs Productions, LLC. The time frame of her death was placed by the medical examiner from 3:00 p.m. on November 15 to 3:00 a.m. on November 16, 2001. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay. On November 18, 2003, a second search warrant was issued, that authorized the search of the hard drive of appellants computer for [i]nformation pertaining to death by asphyxiation as well as other information and photos and text from the Web site named necrobabes.com.. Several accesses were on November 13, 2001, two days before the Holik murder. On November 15, 2001, IBM supervisor Diane Holik was found strangled in her bedroom. During the murder investigation, authorities learned that a strange man with a van had stopped by Diane Holiks place to inquire about the sale of her home. The underlying purpose can be killing, dominating, or humiliating another. Whether to admit an out-of-court statement under an exception to the hearsay rule is committed to the trial court's discretion. A reviewing court may, however, disagree with the result to prevent a manifest injustice. 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. She saw a gold or champagne-colored minivan pull up to the for sale sign in the yard. 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. A state jury found Russo guilty of capital murder, and he was given a life sentence. Alvarado, 912 S.W.2d at 207. Appellant advances eight points of error. He testified that he hypothesized the coincidental chances of obtaining the same nuclear DNA results in this case would be one in 16,817. Dateline has featured Holik's story of his demise. United States v. Carey, 172 F.3d 1268, 1271 (10th Cir.1999). later found to only have had $1,796 in it at the time. People named Patrick Anthony. Moreover, objections based on remoteness go to the weight rather than the admissibility of the evidence. Appellant did not further object at trial. 403. 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. It was shown at trial that she wore the charm on a necklace. ref'd) (Texas precedent allows state-of-mind declarations to be admitted to prove the joint conduct of the declarant and another). The 42-year-old IBM supervisor was in the midst of selling her large upscale home in Austin, Texas when a man posingas a potential buyer strangled her to death in herhouse. Evidence was admitted that demonstrated that appellant's wife (a school teacher) and his son (a student) were at school during much of the time that the Internet was used to access the necrobabes.com Web site. These offenders will have an exponential impact.. Id. Fortunately, one of those homeowners was perturbed after her encounter with him, and wrote down his license plate number after realizing that he looked like the man in the polices composite drawing. Tex. 01:57 Dateline After the Storm Part 10 The suspect is charged with murder, six months after Diane was killed. Dateline aired the case of Christopher Northam last weekend. 1998, pet. Intent may be inferred from the acts, words, and conduct of the accused. Patrick Anthony Russo is serving a life sentence for the 2001 murder of 42-year-old Diane Holik. In his brief, appellant urges that the evidence admitted over his hearsay objections had no relevancy to any material issue in the case. A person who is observing or experiencing something may explain or describe it to someone else over the telephone. Police officers searched appellant's church office on November 21, 2001. Though the death case murder is still a mystery. In 2010, Lt. Gov. 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. 10. In December 2015, he filed for Grounds for Relief. 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. No such references were found. Walser, 275 F.3d at 983-84. Barnes v. State, 62 S.W.3d 288, 297 (Tex.App.-Austin 2001, pet. In Hall v. State, 970 S.W.2d 137, 141 (Tex.App.-Amarillo 1998, 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. The defendant in Carey was arrested for the sale of drugs and consented to the seizure of his computer system. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App.2003); Maldonado, 998 S.W.2d at 243. See order of the Texas Court of Criminal Appeals dated February 25, 1998, entitled Final Approval of Revisions To The Texas Rules of Evidence in Criminal Cases.. Russo proved to be a paying subscriber to the website, Necrobabes.com, which offers erotic horror for adults by providing staged photos and video of usually nude women appearing to be strangled, suffocated, hanged and drowned, according to C Net. Later, she met her future fiance through a dating service. 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. 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. 401 & 403.9. 803. 5. No. According to the agents, Tony Russo was a print and computerized Journalist by calling. 301, 304 (Pa.1926) (on morning of her death, victim told fellow passenger on train that she was going to meet defendant that evening). Proximity in time and place may be a factor, but it must be considered along with other facts and circumstances. The court rejected the defendant's argument of exploratory rummaging, Id. Russo claimed he could afford to buy the $450,000 house even though he had less than $2,000 in his bank account. Some 1,200 necrobabes.com related images were recovered.6. Show us with your support. This is true, but the hypothetical scenario propounded by the State to Dr. Coons did not include any reference to robbery. 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. 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. He said that he would set up an appointment for his wife to see the house on the weekend. It was November 15, 2001, when a massive storm of heavy floods and rain deluged Austin, Texas. We observe that a general relevancy objection, even though timely, does not preserve an extraneous offense claim under Rule 404(b). Appellant argued that [s]uch evidence can only prejudice the defendant and distract the jury from the material issues of fact before them.. 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). Patrick Anthony Russo, 44, was a paying subscriber to Necrobabes.com, a Web site that offers "erotic horror for adults" by providing staged photos and video of usually nude women appearing to be strangled, suffocated, hanged and drowned. Dianes neighbor, who was also her realtor, let them in. ref'd). The man took a black-and-white flyer out of the plastic real estate bucket and approached the house. No zip ties were found on the body or in the house. Almost five years ago, Diane Holik was brutally murdered in her Austin, Texas home by Patrick Anthony "Tony Russo". 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. In Fain v. State, 986 S.W.2d 666, 680 (Tex.App.-Austin 1998, pet. There was no evidence of a sexual assault. 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. Patrick Anthony Russo of Texas is one of the 33 graduates of the prison seminary program at the Darrington Unit prison in Brazoria County. pet.). He said that he was a music minister at a church in Bastrop County, Texas. He was sentenced to life in a Texas prison. Dianes wrists also showed marks consistent with being bound with zip ties. 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. @DatelineNBC https://t.co/JEoZIjMREd, Robert Maxwell (@RMaxwellKXAN) September 22, 2016. She was in daily and weekly contact with certain IBM coworkers across the country in the same supervisory field. Graduates Vondre Demond Cash (from left) and Gary L. Everett smile at fellow graduate Troup Hubert Foster Jr., as he shows them his diploma. Rule 803(1) requires that the declaration, if not simultaneous with the event, be made immediately thereafter. Immediately may permit only a slight lapse of time. 401, 402, 403. Rector was able to download these introductory screens, and these exhibits were admitted into evidence. People may receive compensation for some links to products and services on this website. 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. A spare front door key with a ribbon was missing from the doorknob of a ground floor door. The overwhelming evidence against him meant only one thing: a conviction. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). Tune in this Friday, September 23, at 9/8 p.m. Central on NBC. Related To Janet Russo, Steven Russo, Mary Russo. Another search warrant was issued on November 18, 2003, expressly authorizing the search of the necrobabes.com computer file. Russos claim for Grounds for Relief was denied. Penal Code Ann. 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. Declan McCullagh is the chief political correspondent for CNET. Appellant does not claim that any one exhibit or one set of exhibits was irrelevant and prejudicial but urges that all the named exhibits fell into that category. 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. The warrant was executed. He was able to view information about the payment of fees and the purchase of a membership on the Web site. Cranford thought the drawing bore a very good resemblance to appellant. Dateline Episode Trailer: After the Storm | Dateline NBC, When a beautiful woman is strangled to death in her large upscale Austin, Texas home, police look at the men in the victims life, while also considering that a stranger may have killed her. Detective Roy Rector, a computer forensic examiner with the Austin Police Department, was initially requested to look for references in the computer to the victim, her address, or her realtor. 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. More than 136 such documents in the temporary Internet files folder were located. The prosecutor requested Rector to determine if there was additional information of that type on the Internet history concerning "Necrobabes.com.". The cause of death was ligature strangulation. Cranford told him that she did not use it during the day. 4. 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. 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. Appellant received approximately $50.00 a week for his work at the church. There was evidence that appellant's wife inquired about property in Bastrop County. 23. The Gray court rejected the defense argument that it was unreasonable for the special agent to view the JPG files. As noted, appellant cannot rely upon Rule 404(b) because he made no objection on that basis either at trial or at the pretrial hearings. All these witnesses, except Bob Reynolds, were women. 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. 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. While conducting a systematic search of the files on the hard drive for evidence of harassment, a computer analyst found child pornography. 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. She was going to move from Austin, Texas, a place she called home for many years. Brewer is factually distinguishable from the instant case. There is no per se rule by which to determine when evidence is too remote to be admissible. 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. He claimed that he was elsewhere at the time of the murder, but cellphone records placed him in the general area around Dianes neighborhood. Whitmire said that to bring such a program to Texas is a miracle.. Appellant generally complains that all the exhibits were irrelevant, but if relevant, their probative value was substantially outweighed by their prejudicial effect. 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. The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence.

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