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. Prosecutors said Russo posed as someone looking to buy a home to get into Diane Holik's house in November 2001. Austin police officers checked Holik's house about 5:30 p.m. on November 16, 2001. See Diane Holik Vanmil's age, phone number, house address, email address, social media accounts, public records, and check for criminal records on Spokeo. There had been no interrogation along these lines. We overrule the third point of error. Born September 10, 1958 Died November 16, 2001 (43) Add photos, demo reels Add to list Credits IMDbPro Archive Footage Previous 4 Homicide: Hours to Kill Self - Victim (archive footage) TV Series 2018 1 episode 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. Russo claimed he could. at 984-85. Suddenly, appellant was close behind her in the room and still was not speaking. 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. Almost any relevant evidence offered by one party is going to be prejudicial to the opposing party. Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. Cynthia Barajas, a coworker from California, testified that she contacted Holik by telephone about 12:30 p.m., Austin time, on November 15, 2001. Almost more than five years ago, Diane Holik was brutally murdered in her own Home in Austin, Texas, by Patrick Anthony "Tony Russo". Join Facebook to connect with Diane Holick and others you may know. 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. Appellant has not identified any reason why a danger of unfair prejudice exists in relation to the various testimony of the thirteen female homeowners and realtors of which he complains. Id. At the conclusion of the hearing, appellant was permitted to wait and view the completed transcription of the court reporter's record of the hearing and then make objections. Only the numbered exhibits were admitted into evidence. Several of the Internet pages related to the realtors who testified at trial. The touchstone of the Fourth Amendment is reasonableness. Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. Id. At the hearing in the jury's absence, the trial court overruled appellant's hearsay objection to the this guy just left testimony on the basis of the present sense impression exception to the hearsay rule. In properly construing the entire Internet history, Rector observed references to necrobabes.com. The plain view doctrine applies only to seizures, not searches. 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). According to Detective Rector's testimony, the unallocated clusters at some point were resident in the computer but had been deleted. Dr. Peacock estimated that Holik died between 3:00 p.m. on November 15 and 3:00 a.m. on November 16, 2001. Penal Code Ann. Hon. She died on 16 November 2001 in Austin, Texas, USA. at 1273. Diane Tasker-Holik. 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. This information was given to the police after November 15, 2001. Cranford told him that her husband was not home often as he was a busy man, but that they had a realtor. Rule 401 provides:Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without evidence.Tex.R. Daniel J . 803(1). This was done with the consent of the Web site operator. In his interview with the police, appellant asked them what motive he would have to kill Holik, a woman that he did not know. There was evidence indicating that appellant had been to the Holik house twice on November 15, 2001, as he had been to other homes for sale in the Great Hills subdivision on November 15, 2001. ", Jury convicts man who posed as homebuyer to kill. 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. Cranford left the room and appellant stayed behind. 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. It does not appear that appellant challenges the validity of this warrant or its execution. 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). There were no objections based on Rule 404(b) included in the written objections. Evid. 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. ; Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). Evid. Her nineteen-month-old son was in the master bedroom and her three-month-old daughter was in the nursery. Matson, 819 S.W.2d at 846; Ware v. State, 62 S.W.3d 344, 349 (Tex.App.-Fort Worth 2001, pet. The body was fully clothed and there was no evidence of a sexual assault. Dr. Elizabeth Peacock, deputy medical examiner, performed the autopsy and determined the cause of death to be homicide by ligature strangulation. ref'd). 7. Id. 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. We will not make appellant's argument for him on an issue that he has not chosen to present. See Photos. Barajas's testimony that she telephoned and finally contacted Holik on November 15, 2001, and that Holik simply gave an explanation for the delay (without more) is not hearsay. Bush v. State, 628 S.W.2d 441, 444 (Tex.Crim.App.1982); Eby v. State, 165 S.W.3d 723, 737 (Tex.App.-San Antonio 2000, pet. He stood quietly with his attorneys upon hearing the verdict. A search warrant was issued to enter the defendant's home and seize his computer and related items. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.Tex.R. He was a worship leader and music director. Log In. 2157, 72 L.Ed.2d 572 (1982)). Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App.1999). Under the Fourteenth Amendment, the task of the appellate court is to consider all the evidence in the light most favorable to the verdict and determine if any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense. All the evidence must be considered, whether rightly or wrongly admitted. In his first point of error, appellant challenges the legal sufficiency of the evidence to establish [that] appellant committed murder in the course of robbery.. 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. 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. 8. 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. Appellant told the detectives that he became lost during the storm in a residential area of Austin. 19. No rings were found on the body. The 42-year-old IBM supervisor was in the midst of selling her large upscale home in Austin,. In the third point of error, appellant challenges the factual sufficiency of the evidence to establish that appellant committed murder in the course of robbery. Cardenas v. State, 115 S.W.3d at 62-63. The person will play out the fantasies, searching out potential victims. We need not reiterate the evidence. The Web pages viewed by appellant included manual and ligature strangulation. In Brown, a maintenance worker at an apartment building was convicted of murdering a tenant's live-in girlfriend, Shelby Weinstein. Detective Rector testified that in the original search for sale of homes, that he generated the Internet history of the computer. Evid. He was a full-time unskilled employee at a custom-cabinet-making company. Please reach Diane P Holik at (570) 579-6352. As earlier noted in the discussion of the fifth point of error, a general relevancy objection does not preserve an extraneous-offense claim under Rule 404(b) of the Texas Rules of Evidence. 193, 226 n. 100 (Fall 2005) (citing in the following order: Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001) (noting that computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person-the system operator); United States v. Cox, 190 F.Supp.2d 330, 332 (N.D.N.Y.2002) (holding that there is no reasonable expectation of privacy in subscriber information provided to Internet service provider); United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan.2000) (no reasonable expectation of privacy in subscriber information); United States v. Hambrick, 55 F.Supp.2d 504, 507-09 (W.D.Va.1999) (individual has no reasonable expectation of privacy in his name, address, social security number, credit card number, screen name, and proof of Internet connection obtained from Internet service provider); State v. Evers, 175 N.J. 355, 815 A.2d 432, 440-41 (N.J.2003) (person had no standing to challenge warrant that obtained his subscriber information from Internet service provider); Hause v. Commonwealth, 83 S.W.3d 1, 10-12 (Ky.App.2001) (no standing for subscriber to challenge warrant that obtained his name, address, and screen name from Internet service provider); United States v. Ohnesorge, 60 M.J. 946, 949-50 (U.S. Navy-Marine Ct.Crim.App.2005) (no reasonable expectation of privacy in subscriber information given to Internet service provider)). The seventh point of error is overruled. 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. Herrin v. State, 125 S.W.3d 436, 441 (Tex.Crim.App.2002); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997); Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex.Crim.App.1992); Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App.1992); Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex.Crim.App.1991). The person is aroused by watching and controlling another with knives or guns or injuring them by other methods, including ligature strangulation. DIANE HOLIK Owner Reviews Write Review There are no reviews yet for this company. at 1146. 403. at 1270. 11. The court stated: [The computer analyst] testified that when he searches a computer, he systematically goes through and opens user-created files regardless of their names. Cranford was close to him. Includes Address (9) Phone (1) See Results. 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. In such an analysis, we view all the evidence in a neutral light. Holik's death story has been highlighted on the episode of Dateline. The prosecution offered evidence of appellant's financial condition during the time period in question. This is true even where the element of appropriation occurred after the murder. Rankin, 974 S.W.2d at 718. Holik was a supervisory employee of IBM and worked out of her home. We have not found or been directed to any trial ruling on Paige Quinluin's testimony. JPG, also known as JPEG files, contain images. 803. Here, Holik's statement to Barajas over the telephone that This guy just left was contemporaneous with the event it described or certainly it could be inferred circumstantially. ref'd)). He looked at her and his demeanor seemed to change. Stars Diane Holik Patrick Russo Lester Holt See production, box office & company info Add to Watchlist Photos Top cast The standard of review is the same for both direct and circumstantial evidence. Appellant cites no authority to support his contentions. United States v. Gray, 78 F.Supp.2d 524 (E.D.Va.1999), involved the federal offenses of unlawfully accessing (hacking) a computer of the National Library of Medicine (NLM) and possession of child pornography. If there is evidence, however, from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State has proved that the murder occurred in the course of the robbery. ref'd) (finding no abuse of discretion in admission of prior statement by murder victim that he intended to go to defendant's shop); see Green v. State, 839 S.W.2d 935, 942 (Tex.App.-Waco 1992, pet. He asked about the alarm system. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App.2003); Maldonado, 998 S.W.2d at 243. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. In the hallway, Cranford became nervous because appellant continued to stand in the bedroom with a distant look on his face. . At trial, appellant asserted that the witnesses, after learning of the homicide, overreacted in their trial descriptions of their encounters with appellant. Contact us. 3. The testimony presented before the jury showed that Holik planned and had the intent to meet the man who just left the following Saturday. Id. Reviewing courts are not fact finders. ref'd); Schexnider v. State, 943 S.W.2d 194, 198-99 (Tex.App.-Beaumont 1997, no pet.). Log in or sign up for Facebook to connect with friends, family and people you know. 5. Cranford told him that she did not use it during the day. 403. The reliance is misplaced. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986); Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). Keeping in mind the particular facts of the instant case, we find no violation of the Fourth Amendment. Evid. Current counsel makes no belated request for the record. Diana Olick CNBC Senior Climate and Real Estate Correspondent Diana Olick is an Emmy Award-winning journalist, currently serving as CNBC's senior climate and real estate correspondent. 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. Susan Fox, the pastor's wife, testified about the same conversation. Appellant argued that [s]uch evidence can only prejudice the defendant and distract the jury from the material issues of fact before them.. At least two homeowners testified that the man came to their houses twice on November 15, 2001, in the Great Hills subdivision. Id. The trial court specifically overruled the Rule 403 objections to other witnesses but deferred any ruling on the witness Paige Quinluin until trial.13 It appears that the trial court also overruled the later objection that certain witnesses overreacted in describing their encounters with appellant. Her valuable engagement ring was in her possession at 1:30 p.m. on November 15, 2001. Tony Russo is a pathological liar & murderer. It does not appear that appellant obtained an adverse ruling necessary to preserve error, if any. He makes no claim that the evidence was inadmissible because it revealed extrinsic acts or misconduct. Id. This makes sense, as the user is free to name a file anything. Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App.1999). The Texas Rules of Criminal Evidence was superseded by the Texas Rules of Evidence effective March 1, 1998. L.J. 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. Cranford said that appellant's eyes somehow looked bigger and deeper and darker and that he seemed to be a different person. They have also lived in Huntington Station, NY and Wyandanch, NY. It was an awkward situation. 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. Then multiple women report a man behaving strangely while looking at properties for sale or rent. Hon. The Tenth Circuit held that while the first image of child pornography was discovered inadvertently and was not subject to suppression because of the plain view doctrine relating to seizures, the detective exceeded the scope of the search warrant by searching for additional pornographic images. While the police turned to independent sources to determine the nature of necrobabes.com, the State argues that the search of the computer for home sales in the Austin area-the object of the June 18th search warrant-continued as evidenced by exhibits later introduced into evidence without objection. 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. Penal Code Ann. See Tex.R. CLIP 10/13/21. 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. He did not resume the search and find the rest of the nude images of children until after a second search warrant had been issued. The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Despite the manner in which Barajas's testimony about Holik's plans was presented at the separate hearing, the prosecution made clear that it was offering the testimony under the state of mind exception to the hearsay rule. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). 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. He became sweaty and very shaky, and there was a strange look in his eyes. Barajas warned Holik that she should not let strangers into her home when she was alone. (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. 22. It was shown at trial that she wore the charm on a necklace. See Tex.R.App. The man asked for a floor plan, which Cranford did not have. Evid. 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. The trial court did not rule on the matter until trial. View Diane Sternberg's business profile as Assistant Sales Manager, Sales Lead at White House Black Market. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991); Roberson v. State, 16 S.W.3d 156, 165 (Tex.App.-Austin 2000, pet. or. Find your friends on Facebook. In many situations, he wanted to meet the woman realtor alone at the site of the vacant house. Appellant overlooks the fact that at no time did he advance any relevancy objection at trial as required. Appellant said that some jewelry had been taken from the victim. That search was not abandoned in favor of an investigation into necrobabes.com.. 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. He stopped opening picture files and obtained a second search warrant that allowed him to specifically search for child pornography. 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. Some 1,200 necrobabes.com related images were recovered.6. ref'd); Miranda v. State, 813 S.W.2d 724, 733, 742 (Tex.App.-San Antonio 1991, pet. 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. The episode covering the Texas Killing is "After the Storm". There were no statutory pretrial motions involved. In analyzing a challenge to the legal sufficiency of the evidence, a reviewing court does not realign, disregard, or weigh the evidence. Appellant advances eight points of error. Copyright 2023, Thomson Reuters. A trial court's evidentiary ruling on a hearsay objection must be upheld absent an abuse of discretion. Moreover, objections based on remoteness go to the weight rather than the admissibility of the evidence. 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. Appellant was released after 8:00 a.m. on November 21, 2001. This inference is not negated by evidence of an alternative motive that a jury could rationally disregard. The evidence shows that appellant and his wife had a $199,000 mortgage on their trailer home in Bastrop.4. . 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. On November 17, 2001, there was a church staff meeting. 21. A person who is observing or experiencing something may explain or describe it to someone else over the telephone.