He was found guilty of capital murder and was sentenced to life in prison. Proof of a completed theft is not even required. 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. Russo is currently serving a life-sentence for the murder of Diane Holik. On June 18, 2003, a search warrant was issued authorizing the search of appellant's home and the seizure of his personal computer and its content. The computer was seized pursuant to the warrant. It was later shown that the police did not inform appellant that any jewelry was missing from the Holik home. The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Police were able to match Russos DNA with that found on a green towel in Holiks home. See Guevara, 152 S.W.3d at 50; Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995); Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982). He also objected to excerpts from the testimony of certain other witnesses under Rule 403. If the computer erases the index, the file is still out there in the unallocated clusters until the computer reuses that space.. FBI agents executed a search warrant on the defendant's home and seized four computers in connection with an investigation of unauthorized computer intrusions. 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.. * Gary A. Taylor, Law Offices of Gary Taylor, M. Ariel Payan, Austin, for appellant. 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. More than 136 such documents in the temporary Internet files folder or unallocated clusters (deleted files) were located. Powered by WordPress.com VIP. Id. Moreover, objections based on remoteness go to the weight rather than the admissibility of the evidence. 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. Now, his relationship is perfect. The man, whom Cranford later identified as appellant, noted that Cranford had switched realtors, but the switch had occurred in July 200l. He then expanded it to include Russo's search history, and a prosecutor noticed references to Necrobabes.com. We find no such motion or pretrial ruling thereon. She opened the front door for them. Guevara, 152 S.W.3d at 49. Appellant relies upon Brewer v. State, 126 S.W.3d 295 (Tex.App.-Beaumont 2004, no pet. They then released him. Later, Cranford described the incident to a friend, who subsequently called her and asked her to look at a composite drawing in the newspaper and the accompanying story. Using this number, the police were able to identify appellant as the man they were seeking. Diane Holik: 5 Fast Facts You Need to Know | Heavy.com Id. The prosecution said of Patrick, Hes a predator, skilled at deceit and cunning and finding watering holes of potential victims. As per prison records, he remains incarcerated at the Thomas Goree Unit in Huntsville, Texas. patrick anthony russo dateline - anothertallblonde.ca 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). 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. 1. 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. Appellant was released after 8:00 a.m. on November 21, 2001. 404(b). After having been first interviewed by Austin police officers, appellant discussed the matter with Pastor Fox, telling Fox that some jewelry was stolen in the offense, but the police had not communicated that information to appellant. Id.19. The evidence shows that appellant and his wife had a $199,000 mortgage on their trailer home in Bastrop.4. The scene covering the Texas Killing is "After the Storm". 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. While conducting a systematic search of the files on the hard drive for evidence of harassment, a computer analyst found child pornography. This exhibit is not before us for consideration of its relevancy. On November 25, 2003, at still another separate pretrial hearing, the trial court paused and overruled appellant's Rules 401 and 402 objections to certain testimony. There was no sign of a sexual assault. Matson, 819 S.W.2d at 846; Ware v. State, 62 S.W.3d 344, 349 (Tex.App.-Fort Worth 2001, pet. All of the residents who this man approached claimed that he seemed strange. 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. 2.01 (West 2003); Ward v. State, 143 S.W.3d 271, 274 (Tex.App.-Waco 2004, pet. Evid. Evid. 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. In Walser, the officers obtained a search warrant to search the defendant's hotel room and computer for evidence of possession or sale of controlled substances. Investigation Discoverys Six Degrees of Murder: Ties That Bind chronicles the work that went into catching Dianes killer. Excerpts from the Texas Court of Appeals' opinion dealing with Necrobabes.com and AOL searches used as evidence: The touchstone of the Fourth Amendment is reasonableness. Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. Diane Holik, Patrick Anthony Russo: 'Dateline NBC'-'Erotic Horror Rector was able to download these introductory screens, and these exhibits were admitted into evidence. So when no one could get in touch with Diane Holik, everyone believed that the lines were down. At one point, Cranford's son awakened and she moved him to the family room. Russo claims his counsel was ineffective. 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). The Gray court rejected the defense argument that it was unreasonable for the special agent to view the JPG files. There was no objection to this latter statement which was Barajas's opinion, not a present sense impression exception to the hearsay rule. She was in daily and weekly contact with certain IBM coworkers across the country in the same supervisory field. 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. Related To Janet Russo, Steven Russo, Mary Russo. The current code is cited for convenience. the nissan rogue, murano and pathfinder. 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. Id. The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. He gave the name of Jim Taylor. 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. Barajas testified that she warned Holik not to let strangers in her home when she was alone. He does not challenge the evidence supporting the commission of the murder. Holik's house had one in her front yard, too. 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.). Also, we have no information about his son and daughter. He was able to view for free the introductory screens, photographs, and stories pertaining to the death of women by strangulation. Calls to Akia went . 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. Another search warrant was issued on November 18, 2003, expressly authorizing the search of the necrobabes.com computer file. Dr. Peacock estimated that Holik died between 3:00 p.m. on November 15 and 3:00 a.m. on November 16, 2001. Appellant also said that he stopped at only one house to ask for directions, which he received from an older gray-haired man. See Tex.R.App. Heres what you need to know about Russo. The officers arrived at Dianes home at around 5:30 PM the same day. 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. Deem noted that it was common practice to manually open picture files because text (such as chat sessions) could be found in JPG files. The facts do not show that Detective Rector exceeded the scope of the search warrant of June 18 in violation of the Fourth Amendment. Holik's wrist bore indentations showing discernible redness, indicating that her heart was still beating when the wrists were bound. The search recovered eight images of child pornography including the two transmitted ones. Appellant was known to the manager because of previous contacts. Appellant argues that the evidence held appellant up to public ridicule and shame and had little effect upon a fact of consequence. 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. Marion Hal Hooper receives his diploma during the commencement ceremony. Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Tex.R. He seemed to fit the bill of their suspect. 1341, 1350-51 (D.N.J.1982); Booth v. State, 306 Md. 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. 2023 Cinemaholic Inc. All rights reserved. Further, he does not challenge the probable cause underlying the search warrant issued June 18, 2003, and under which the computer was seized. Diane Holik was an inhabitant of New York who was hoping to move around the nation after she locked in. She described appellant as opening the closet door and then dropping his arms to his side and just standing there without saying anything. See Tex.R. 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. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 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. We shall consider the issue presented. Almost any relevant evidence offered by one party is going to be prejudicial to the opposing party. In the early morning hours of November 21, 2001, police officers executed a search warrant at appellant's Bastrop home. See Tex. Appellant argues that there were no eyewitnesses to the offense. The Texas Court of Appeals rejected those arguments and left his sentence intact. We must remain cognizant of the fact-finder's role. There were no signs of forced entry, and the lower floor seemed normal. 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. A Storm Reveals A Murder Appellant was ready to submit to the authority of the pastor. Diane Holik was excited to enter a new phase in her life after getting engaged. Appellant's wife, Janet, was a school teacher for the Smithville Independent School District. Follow along as LaDonna and Alecia share the heartbreaking details of how Patrick Anthony Russo's fetish played into Diane Holik's murder. A spare front door key with a ribbon was missing from the doorknob of a ground floor door. >> i studied for theology to become a minister. 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. Holiks wrists had been bound, and there were marks around her neck indicating strangulation by ligature, meaning a garrote such as a cord or rope. pet.). Sept. 24, 2016 Best of NBC News Play All NBC News Channel Three climbers killed in. 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. Appellant stated that the house was beautiful and that he was going to be selling a ranch and would be paying cash for a house. Tex.R. 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. The Texas lawmakers said the site of smiling inmates leading others in prayer moved them and helped bring the program to Texas. Still further, in a murder case, the intention of the victim to go somewhere or to meet someone may be proved by evidence of the victim's out-of-court assertion of intent. That search was not abandoned in favor of an investigation into necrobabes.com.. 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. When she learned that the sale price was $270,000, she stated that the price was way out of their range.. at 1270. In such an analysis, we view all the evidence in a neutral light. Her valuable engagement ring was in her possession at 1:30 p.m. on November 15, 2001. She had been tied up and strangled, an autopsy report confirmed. The prosecution called thirteen witnesses who were attempting to sell their homes from May to November 15, 2001, or were realtors. However the demise case murder is as yet a secret. The scene covering the Texas Killing is After the Storm. Conner, 67 S.W.3d at 197; Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995). Lives in Staten Island, New York. 202, 355 S.E.2d 897, 899 (Va.App.1987) and United States v. Ross, 456 U.S. 798, 820, 102 S.Ct. As a nonprofit newsroom, we rely on members to help keep our stories free and our events open to the public. Lang v. State, 698 S.W.2d 735, 736 (Tex.App.-El Paso 1985, no. In analyzing a challenge to the legal sufficiency of the evidence, a reviewing court does not realign, disregard, or weigh the evidence. At that point, he stopped his search and called Malchow [his supervisor]. The State offered and did eliminate certain parts of the testimony of Melody Blount and Tammy Tayman. The legal sufficiency of the evidence under the Jackson standard is a question of law. Outcome: Appeals court rules defendant's AOL searches for asphyxiation and visits to Necrobabes.com were reasonably used as evidence and upholds conviction. Furthermore, a hair sample taken from a towel found at the scene and swabs from Dianes hand matched Patricks DNA. 2737). The search ceased, and a second warrant was obtained to search for child pornography. Dateline: Diane Holik's Murderer Patrick Russo Had $1,796 In Bank 103(a)(1). 19.03(a)(2), the legal and factual sufficiency standards apply to both the charged and underlying offenses. Some 1,200 necrobabes.com related images were recovered.6. Kimberlyn Nelson of Mitotyping Technologies at State College, Pennsylvania, testified that she specialized in mitochondrial DNA testing. 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. Barajas warned Holik that she should not let strangers into her home when she was alone. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). Montgomery, 810 S.W.2d at 389; DeLeon v. State, 77 S.W.3d 300, 315 (Tex.App.-Austin 2001, pet. 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. The file in question was not seized or opened. So long as the trial court operates within the boundaries of its discretion, there is no abuse of discretion and its decision will not be disturbed on appeal. Barajas then stated, [S]he came back, she picked up the phone and she said, they are back on. Barajas estimated that her conversation with Holik concluded about 1:30 p.m. that afternoon. doorstep of patrick russo, a man matching the description of the mysterious stranger seen in diane holi k's neighborhood the day of the murder. Dr. Coons explained that a sexual sadist is sexually stimulated with a fantasy life and becomes obsessive. See Tex.R. An earlier membership had been issued on February 28, 2001, to a Janet Russo at the same address. He was a worship leader and music director. Appellant's remoteness argument is broad based. Many of them reported that on November 15, a man came by wanting to purchase their property. 9. He compared the samples with known DNA samples from the victim, the appellant, the victim's fianc, and a male coworker. Nonetheless, the fresh insight about this case is still to be uncovered. During their subsequent investigation, police learned that a man claiming to be a prospective home buyer had contacted Austin residents who had "For Sale" signs in front of their homes. https://www.facebook.com/sheyman/posts/10154140006251645?match=ZGlhbmUgaG9saWs%3D. In his fifth point of error, appellant urges that [t]he trial judge erred in the admission of extraneous conduct evidence from other8 homeowners and realtors under Tex.R.Crim. Prosecutors said Russo posed as someone looking to buy a home to get into Diane Holik's house in November 2001. Through irrefutable scientific evidence, the police were able to bring the culprit to justice. Man gets life in prison for strangulation, Several assaults, thefts reported in latest crime activity. See Tex.R.App. Cranford told him that her husband was not home often as he was a busy man, but that they had a realtor. One woman--who had been suspicious in a November 5 encounter and wrote down the man's license plate number--recognized the drawing and contacted police. Cranford said that appellant's eyes somehow looked bigger and deeper and darker and that he seemed to be a different person. The mothers name is Not Available. Diane was face down and had ligature marks around her all-over neck according to the source. Appellant's known fingerprints matched the prints on the black-and-white flyer and prints on the flyer box in Tammy Cranford's yard. Cathy Vance, a forensic analyst with the white collar crime unit in the district attorney's office, analyzed appellant's financial records. 404(b). Love #Dateline? later found to only have had $1,796 in it at the time. E1 All episodes Cast & crew IMDbPro All topics After the Storm Episode aired Sep 23, 2016 TV-PG IMDb RATING 7.9 /10 20 YOUR RATING Rate Documentary News Texas, 2001: Diane Holik is strangled in her home. 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. Knowing that the Austin storm had spawned some tornadoes, Fountain called the Austin Police Department that afternoon asking for a check on Holik. 03-04-00344-CR. Id. Five of these witnesses were Great Hills residents who were approached at their homes on the day of the murder. 22. Reviewing courts are not fact finders. Barajas related that Holik was excited to be selling her home and was eager to do so.22. The victim, an IBM at home supervisor, was found in an upstairs bedroom lying face down. See Tex.R.App. Tonight, Dateline will investigate the details of Holik's death. In the hallway, Cranford became nervous because appellant continued to stand in the bedroom with a distant look on his face. 4. In Cooper v. State, 67 S.W.3d 221 (Tex.Crim.App.2002), an aggravated robbery case, the Court held that the general rule is the theft or attempted theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft for the purposes of proving robbery. Evid. Brady Mills, the supervising criminalist at the Department of Public Safety (DPS) laboratory in Austin, extracted DNA from a swab of the victim's left hand. Id. Wiki, Biography, Age, Spouse, Net Worth, Fast Facts, Who is Nane Avetisyan? Christine Choate, one of the homeowners and also a realtor, testified that appellant came to her Great Hills home on November 15, 2001, between 3:00 and 3:30 p.m. and identified himself as Walter Miller. Appellant appeared nervous and was sweating. Brewer is not applicable in light of the facts here. Cranford opened the front door to prevent the bell from awaking the children. As appellant was leaving, he said his name was Tony, and he asked to take a colored real estate flyer from the table in the foyer. 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. 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. Rector explained that the only way to do that was to recover the entire Internet history and go through that basically by hand, look at it to see what is real estate and what is not. Detective Rector reviewed the temporary Internet files and the index.dat files to determine the computer's Internet history.