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. 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. He returned on November 5, 2001, at the same time. She had recently put her suburban home up for salenever realizing it would lead to the end of her life.. See Watson, 204 S.W.3d at 414-15. All the evidence must be considered, whether rightly or wrongly admitted. Penal Code Ann. See Santellan, 939 S.W.2d at 168; Harrell v. State, 884 S.W.2d 154, 161 n. 14 (Tex.Crim.App.1994). He testified that he hypothesized the coincidental chances of obtaining the same nuclear DNA results in this case would be one in 16,817. On October 20, 2003, appellant filed written objections to the remoteness of the testimony of certain designated witnesses citing, Texas Rules of Evidence 401 and 402. Rule 404(b) provides:(b)Other Crimes, Wrongs or Acts. Before conducting any examination of the computers, the police obtained a search warrant to search the files on the computers for names, telephone numbers, ledger receipts, addresses, and other documentary evidence pertaining to sale and distribution of controlled substances. Id. The email address cannot be subscribed. They arrested appellant later that day at his pastor's house, transported him to Austin, and again interviewed him. The search program permitted a search of the names and contents of the files. 10. Knowing that the Austin storm had spawned some tornadoes, Fountain called the Austin Police Department that afternoon asking for a check on Holik. 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. The testimony presented before the jury showed that Holik planned and had the intent to meet the man who just left the following Saturday. See Conner, 67 S.W.3d at 197. 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. See Tex.R.App. We must remain cognizant of the fact-finder's role. At trial, appellant asserted that the witnesses, after learning of the homicide, overreacted in their trial descriptions of their encounters with appellant. In the other portion of the point of error, appellant complains of the testimony of thirteen female homeowners and realtors, relying upon Rule 403. 403. 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. To establish capital murder committed during the course of a robbery, the prosecution must prove beyond a reasonable doubt, in addition to the alleged murder, that the defendant possessed the specific intent to obtain or maintain control of the victim's property either before or during the commission of the offense. Patrick Russo, 40, faces life in prison or possibly the death penalty when sentenced next week. In points five and eight, appellant complains of the trial court's evidentiary rulings in admitting irrelevant, prejudicial, and hearsay evidence. The Gray court concluded that under the circumstances, it was reasonable under the Fourth Amendment for the special agent, in his routine preliminary file review, to open the JPG file, and to cease the search and obtain another warrant after viewing the nature of the material. See Tex.R.App. All these witnesses, except Bob Reynolds, were women. See Tex. 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. 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. Resides in Austin, TX. 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). 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. The 43-year-old worked for IBM as an executive, ultimately settling in Austin in 1996. In searching the computer's hard drive for evidence of drug trafficking, the officer opened a Microsoft Word folder, and this opened a second file in the folder, an AVI file that contained a video of child pornography. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). 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. Texas Rules of Evidence 803 provides a number of exceptions to the hearsay rule, including the present sense impression and state of mind exceptions here involved. 8. Appellant's remoteness argument is broad based. pet.). She described the man as appearing nervous and sweaty. 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. 13. Circumstantial evidence of intent is not required to meet the same rigorous criteria for legal sufficiency as circumstantial proof of other offensive elements. According to Detective Rector's testimony, the unallocated clusters at some point were resident in the computer but had been deleted. P. 33.1, we observe that appellant did not object on the basis of Rule 404(b), under which the State gave notice and offered the exhibits of which appellant now complains. He qualified as an expert witness for the State. The van was parked in such a manner that Hebner thought that a potential buyer was there. The man gave different names to some of the homeowners. According to her, appellant said that during the storm, he stopped at a house to ask directions and a lady came to the door, that it was raining hard, and that she was kind of bothered about his being there. Appellant argued that [s]uch evidence can only prejudice the defendant and distract the jury from the material issues of fact before them.. The prosecution offered evidence of appellant's financial condition during the time period in question. 3. 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. 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. Moreover, about 5:00 p.m. on the afternoon of November 15, 2001, a van fitting the description of appellant's minivan was seen parked in front of Holik's house. We shall consider the issue presented. While the title appeared suspiciously suggestive and implicitly of a sexual nature, it did not appear to be criminal or of an incriminating character in and of itself. (internal quotation marks omitted). 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. See Tex.Code Crim. Diane Tammy Holik, 43, of Austin, Texas, entered into rest on Friday, November 16 2001. 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. The Dog Owner's Home Veterinary Handbook The Complete Dog Book for Kids. During the course of their investigation, the police learned that, on November 15, 2001, some Great Hills residents, who had for sale signs in the front of their houses, had been approached by a man who claimed to be interested in buying their homes. Hon. 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. In the hallway, Cranford became nervous because appellant continued to stand in the bedroom with a distant look on his face. Hickson's testimony thus falls within the present sense impression exception to the hearsay rule. Appellant does not complain of the admission of all the evidence taken from his computer. 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. Penal Code Ann. We disagree. Brown, 552 F.Supp. 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. The court added: This principle applies equally to a search for electronic files. Questions Post Question There are no questions yet for this company. The tenant (Hickson) testified that the victim called him on the telephone and stated that she was not going to work and that the guy is here to fix the air conditioner. The court wrote: Shelby Weinstein's statement that a man was there to fix the air conditioner meets the requirement that the declarant personally perceive the event, that the statement explain or describe the event, and that there be contemporaneity of the statement and the event described. Diane Holik was murdered, in her own home where she lived alone, by strangulation with a ligature, and her body was left in a locked house. Approximately twelve realtors testified that in 2001, a man, whom most of these witnesses identified as appellant, had contacted them about a home or homes he needed to see immediately, and who indicated that he was a cash buyer and could afford houses from $200,000 to $700,000. Id. On this latter date, she took note of the license plate number on his van. Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App.1996); DeLeon, 77 S.W.3d at 315-16. She described appellant as opening the closet door and then dropping his arms to his side and just standing there without saying anything. 2.01 (West 2003); Ward v. State, 143 S.W.3d 271, 274 (Tex.App.-Waco 2004, pet. Commonwealth v. Marshall, 287 Pa. 512, 135 A. 18. A trial court's evidentiary ruling on a hearsay objection must be upheld absent an abuse of discretion. If this was an objection, it was not included in the written objections. Id. Id. 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. So, Diane was looking to sell her previous Home and move to Houston, Texas, where he lived. 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. Ties That Bind. Appellant was shown to have visited the homes of Thoom Zech and Lisa Faulkner twice on November 15, 2006, as he may have done at the victim's home. 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. Kimberlyn Nelson of Mitotyping Technologies at State College, Pennsylvania, testified that she specialized in mitochondrial DNA testing. She was in daily and weekly contact with certain IBM coworkers across the country in the same supervisory field. Appellant only worked there about thirty hours a week, but appellant voluntarily quit that job. 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. Contact us. Appellant told her that he would pay cash, that he had just sold a ranch, and that he needed to buy quickly. See Tex.R.App. Appellant was ready to submit to the authority of the pastor. At the hearing, no objections were addressed to the testimony offered. 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. Season 10 Episode 30 - Videos 2:38 Preview Diane Holik Found Dead After Tornadoes Hit Texas His complaint about the testimony provided by Melody Blount, Annette Beeler, Connie Morton, Stephanie Nichols, Kathleen Hamlet, Sandy Menley, and Johna Ramirez is based on contact with appellant alleged to have occurred in May 2001. In Fain v. State, 986 S.W.2d 666, 680 (Tex.App.-Austin 1998, pet. Diane Holik was born on 10 September 1958 in Bay Shore, New York, USA. Rector recovered two hours, thirty-six minutes, and fifty-five seconds of Internet history of the necrobabes.com Web site. 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. Current counsel makes no belated request for the record. 17. Family and friends are slowly eliminated until it is likely a stranger murder. Evid. He also objected to excerpts from the testimony of certain other witnesses under Rule 403. She was excited about the real possibility of selling her home. Zimmerman v. State, 860 S.W.2d 89, 93 (Tex.Crim.App.1993). The basis of this latter ruling was the state of mind exception to the hearsay rule. Rector then performed some keyword searches on the hard drive copy using Diane Holik, Pathfinder, and Lakki Brown (Holik's realtor). Also known as Diane T Holik, D T Holik. Further, he does not challenge the probable cause underlying the search warrant issued June 18, 2003, and under which the computer was seized. He was able to view for free the introductory screens, photographs, and stories pertaining to the death of women by strangulation. Diane Y. Devlin Supreme Court Justice Part 6 - 3rd floor 92 Franklin Street Buffalo, NY 14202 Phone: 716-845-9483 Fax: 716-845-5157 Court Clerk: 716-845-9420 IAS Rules. 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. 1341, 1350-51 (D.N.J.1982); Booth v. State, 306 Md. Prosecutors said Russo posed as someone looking to buy a home to get into Diane Holik's house in November 2001. Her $17,500 engagement ring was missing. 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. McDonald v. State, 513 S.W.2d 44, 51-52 (Tex.Crim.App.1974), held that relevant evidence involving an extraneous offense one year earlier was not too remote. Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. In the early morning hours of November 21, 2001, police officers executed a search warrant at appellant's Bastrop home. The evidence shows that appellant and his wife had a $199,000 mortgage on their trailer home in Bastrop.4. 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. ref'd) (Texas precedent allows state-of-mind declarations to be admitted to prove the joint conduct of the declarant and another). Copyright 2023, Thomson Reuters. 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.