Only the numbered exhibits were admitted into evidence. Log in or sign up for Facebook to connect with friends, family and people you know. Its going to give hope to inmates who didnt have hope before. Appellant could not be excluded from two hairs retrieved from a green towel found in the living room.5. Some have been convicted of murder, and those who arent murderers are locked away for other serious crimes most of them violent. Investigators say Tony Russo targeted expensive homes and pretended to be a home buyer to rob the victims. 28.01 (West 2006). She stated that appellant breezed through some areas of the house. 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. 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. On November 18, 2003, a second search warrant was issued, that authorized the search of the hard drive of appellant's 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., Joseph Schwaleberg, the record custodian of Generic Systems, a billing company that controlled access to the necrobabes.com Web site, testified that a Tony Russo with the same home and e-mail address as appellant purchased a six-month membership on July 21, 2001. Id. 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. 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. The person is aroused by watching and controlling another with knives or guns or injuring them by other methods, including ligature strangulation. The proponent of evidence usually has the original burden of showing that it is relevant and admissible. The record reflects that the police were able to learn from Joe Schwaleberg of Generic Systems, Inc., who operated the necrobabes.com Web site, that on February 28, 2001, Janet Russo paid for a six-month subscription to this erotic asphyxiation Web site, and that on July 21, 2001, Tony Russo paid for a six-month subscription to the same Web site. In the first and second points, appellant challenges the legal sufficiency of the evidence to establish that the murder was committed in the course of a robbery or in the course of a kidnapping. Holik had plans to meet on the weekend with a man who was leaving her house when she talked to Barajas on the telephone. Patrick Russo in Texas. 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. >> but an odd coincidence. 17. ref'd). At that point, he stopped his search and called Malchow [his supervisor]. Anthony Russo. According to the agents, Tony Russo was a print and computerized Journalist by calling. According to Detective Rector's testimony, the unallocated clusters at some point were resident in the computer but had been deleted. Holik's demise story has been featured on the scene of Dateline. 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. 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. Several of the Internet pages related to the realtors who testified at trial. He said that he would set up an appointment for his wife to see the house on the weekend. Matson, 819 S.W.2d at 846; Ware v. State, 62 S.W.3d 344, 349 (Tex.App.-Fort Worth 2001, pet. The instant offense occurred on November 15, 2001. There is, however, no legal requirement that property stolen must be recovered in whole or in part to constitute the offense of robbery. 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.R. While the authorities were canvassing in the neighborhood, they came across some peculiar information from many homeowners who had their property on sale. See Santellan, 939 S.W.2d at 168; Harrell v. State, 884 S.W.2d 154, 161 n. 14 (Tex.Crim.App.1994). Though the death case murder is still a mystery. 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. That search was not abandoned in favor of an investigation into "Necrobabes.com.". Suddenly, appellant was close behind her in the room and still was not speaking. Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App.1996); DeLeon, 77 S.W.3d at 315-16. Her daughter awakened and screamed. Deep Dark Secrets is a podcast hosted by LaDonna Humphrey and Alecia Lockhart that shines a light in dark places when all other lights go out. See Tex.R. Evid. See Tex.R.App. A search of his computer revealed his proclivity towards asphyxiation-type pornography. Perhaps it goes without saying but producing quality journalism isn't cheap. Itll improve safety for correction officers, state Sen. John Whitmire, D-Houston, said Thursday at a press conference touting the program. pet.). 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. About 30 percent of Darringtons roughly 1,800 total inmates are serving sentences of 40 or more years, state data shows. Knowing that the Austin storm had spawned some tornadoes, Fountain called the Austin Police Department that afternoon asking for a check on Holik. In his written pretrial objections, appellant did not address the witnesses' testimony about their encounters with appellant or his conduct, but orally urged that their individual testimony about their various emotions, feelings, or actions during or after the encounters, even if relevant, were inadmissible because the probative value was substantially outweighed by the danger of unfair prejudice. The man gave different names to some of the homeowners. his Girlfriend/boyfriends name is Not Available. In such an analysis, we view all the evidence in a neutral light. The evidence was relevant. Therefore, the trial court did not abuse its discretion in admitting this testimony under Rule 803(1). 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. 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 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. Lang v. State, 698 S.W.2d 735, 736 (Tex.App.-El Paso 1985, no. 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 43-year-old worked for IBM as an executive, ultimately settling in Austin in 1996. Appellant overlooks the fact that at no time did he advance any relevancy objection at trial as required. The trial court did not rule on the matter until trial. It was November 15, 2001, when a massive storm of heavy floods and rain deluged Austin, Texas. The local police arrived at the home at 6300 Pathfinder Drive, where they found the body of a white female who was identified as 42-year-old Diane Holik. The co-worker asked Austin police to check on her, which they did at 5:30 p.m. on November 16. The trial court found that the evidence of seven witnesses was not too remote and was relevant. art. 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. 403. When her colleagues werent able to reach her, they asked the police for a welfare check. Further, he does not challenge the probable cause underlying the search warrant issued June 18, 2003, and under which the computer was seized. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005); Clewis, 922 S.W.2d at 134. The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. JPG, also known as JPEG files, contain images. Rule 404(b) provides:(b)Other Crimes, Wrongs or Acts. Holik explained why she was late in calling Barajas and added: This guy just left. Holik said that she planned to meet with the man and his wife the following Saturday to show her house. He said that he did not enter any houses. --- Support this podcast: htt 2737, 49 L.Ed.2d 627 (1976). The police officers also recovered a green towel found on a couch downstairs. Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App.1987); Roberson, 16 S.W.3d at 164. On November 15, 2001, when Hebner was coming home, he observed a gold or brown van parked in front of Holik's home about 5:00 or 5:15 p.m. Barajas testified that she warned Holik not to let strangers in her home when she was alone. 1341, 1350-51 (D.N.J.1982); Booth v. State, 306 Md. Please try again. ref'd). Appellant received approximately $50.00 a week for his work at the church. Works at Con Edison. P. 33.1. Later, she met her future fiance through a dating service. After viewing the video, the officer ceased the search on the hard drive and obtained a new search warrant authorizing a search for evidence of possession of child pornography. Almost more than five years ago, Diane Holik was brutally murdered in her own Home in Austin, Texas, by Patrick Anthony "Tony Russo". After reviewing Carey, Walser, Gray, and other authorities, the Rosa court wrote: We agree with the reasoning of these cases. On 9 Mar 2014 @rachelmvg tweeted: ""A haunted place, some said - or perhaps.." - read what others are saying and join the conversation. M. Scott Taliaferro, Assistant District Atty., Austin, for appellee. At least two homeowners testified that the man came to their houses twice on November 15, 2001, in the Great Hills subdivision. 404(b). Fathers name is Not Available. Copyright 2023 The Inquisitr. Evid. 5. It was an awkward situation. Dr. Richard Coons, a psychiatrist and an attorney, testified concerning his training in human sexuality. The demise case murder remains a mystery. We conclude that the evidence supporting the finding of guilt is not so weak as to make the finding clearly wrong or manifestly unjust, nor is the verdict against the great weight and preponderance of evidence. After the initial discovery, and without obtaining a new warrant, the detective abandoned the search for drug trafficking evidence, and proceeded instead to download and view over 200 similarly labeled JPG files in a successful search for further images of child pornography. Appellant did not return the next day. In the absence of the jury, the trial court conducted a hearing on Barajas's testimony and made its rulings. college algebra cheat sheet pdf. The search ceased, and a second warrant was obtained to search for child pornography. Includes . 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. Id. 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. 402. Click to reveal By | On December 12, 2021 03:47 AM "Tony Russo" whose real name is Patrick Anthony Russo has been confirmed that he brutally murdered Diane Holik at her Home. We need not recite all the facts and circumstances demonstrating the lack of remoteness. 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. She had been tied up and killed, and ligature marks were present on her body, according to Inquisitr. Cranford went to the nursery to calm the child. The warrant was executed. Eventually, she bought a home there and made a life for herself with a great circle of friends. Holik's house had one in her front yard, too. Templin v. State, 711 S.W.2d 30, 34 (Tex.Crim.App.1986). Brown, 552 F.Supp. 2023 Cinemaholic Inc. All rights reserved. All of the residents who this man approached claimed that he seemed strange. * Gary A. Taylor, Law Offices of Gary Taylor, M. Ariel Payan, Austin, for appellant. Jeffery Deem, a technology specialist, used the Encase program to make a copy of the computer's hard drive and then performed a keyword search. Follow along as we explore the fringes of the True Crime world with topics such as death fetish pornography, kids off the grid, demonic possessions, evil doc in charity morgan burger recipe. Thus, Diane was hoping to offer her past Home and move to Houston, Texas, where he resided. Appellant argues that there were no eyewitnesses to the offense. Patrick Anthony RUSSO, Appellant, v. The STATE of Texas, Appellee. A Storm Reveals A Murder 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. 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. 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. Furthermore, a hair sample taken from a towel found at the scene and swabs from Dianes hand matched Patricks DNA. 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. 404(b).20 The trial court gave limiting instructions to the jury that are not the basis of the complaints here. Works at . Rule 403 more strongly favors admissibility than did many of the earlier formulations of the appropriate balancing test, with the opponent of the evidence bearing the burden of showing that the probative value is substantially outweighed by countervailing factors. 1 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Texas Practice: Guide to the Rules of Evidence, 403.1 (3d ed.2002) (citing Yohey v. State, 801 S.W.2d 232, 236 (Tex.App.-San Antonio 1990, pet. The State did not offer this evidence before the jury. Reviewing courts are not fact finders. 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. 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. Id. Practically over five years prior, Diane Holik was fiercely killed in her own Home in Austin, Texas, by Patrick Anthony "Tony Russo". Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App.1999). 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. If error was properly preserved, we conclude that the trial court did not abuse its discretion in admitting the complained-of evidence in light of the objections made. United States v. Carey, 172 F.3d 1268, 1271 (10th Cir.1999). They interviewed Russo and released him. 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. Proof of a completed theft is not even required. "Tony Russo" whose real name is Patrick Anthony Russo has been confirmed that he brutally murdered Diane Holik at her Home. Appellant Patrick Anthony Russo appeals his conviction for capital murder. Cranford opened the front door to prevent the bell from awaking the children. Detective Rector then, on a personal or lab computer, went online to the Web site for necrobabes.com which was available without charge to anyone surfing the Internet. Russo claims the court violated his right to due process including admitting evidence beyond the scope of the search warrant (nude photos from necrobabes which were not found on his computer), among other things. We find no such motion or pretrial ruling thereon. He knew that Holik had been trying to sell her home. Read More: How Did Andra and Brad Sachs Die? 221 F.3d at 1147. 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. That includes some who will spend the rest of their lives behind bars. 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. 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. The trial court also overruled appellate's separate hearsay objection to Barajas's testimony about Holik's plan or intention to meet the man on the weekend. 14. how much did lawrence welk band members make; walmart distribution center pedricktown, nj 08067; smoked coffee beans on pellet smoker; power xl air fryer turn off beeping Appellant seeks to distinguish Bachhofer on the basis that the instant case did not include any criminal act by appellant during the encounters. Although appellant used the phrase extraneous conduct evidence in the point of error, there was no objection on the basis of Rule 404(b). 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). Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App.2000). On November 17, 2001, there was a church staff meeting. 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. 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. In capital murder offenses committed during the course of a robbery, see Tex. 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. Family and friends are slowly eliminated until it is likely a stranger murder. The Brewer court pointed out that there was no evidence to show that a theft or a robbery of the victim took place or that the defendant was implicated in the offense. (In cases of ligature homicide, blood flow to the brain is blocked and consciousness is lost in 10 to 15 seconds.). ), to support his argument. Barajas warned Holik that she should not let strangers into her home when she was alone. 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. The prosecutor requested Rector to determine if there was additional information of that type on the Internet history concerning "Necrobabes.com.". Appellant asserts that none of the missing property was found in his possession or ever recovered, despite searches of his home and church office, the use of metal detectors in his yard, and a survey of pawn shops. Her $17,500 engagement ring was missing. Appellant simply asserts that because the encounters occurred either six months or three months before the offense on November 15, 2001, the evidence is too remote to be relevant and should not have been admitted. coming up -- patrick russo seems an unlikely killer. Those in the program "have changed remarkably in the four years not just academically, but in terms of their behavior and their examples to other offenders, Brad Livingston, executive director of the Texas Department of Criminal Justice, said Thursday. Appellant's record references are to a pretrial hearing and to a point at the trial on the merits where the trial court overruled the scope of the search objection. 03-04-00344-CR. 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. 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. ref'd), the court held that proof of murder coupled with evidence of a contemporaneous theft from the victim is enough to enable a jury to rationally conclude beyond a reasonable doubt that the murder occurred during the course of a robbery and that the accused had the intent to rob at the time of the murder. 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. 217.113.62.75 She said, this guy just left. When asked about the length of time from when the man had been there to when you talked to her (Holik) on the phone, Barajas responded, Just moments.21 Barajas testified that Holik told her that she [Holik] had plans to meet this man and his wife the following Saturday to show her house. 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. He had given different names to them and said that he would pay in cash. Almost more than five years ago, Diane Holik was brutally murdered in her own Home in Austin, Texas, by Patrick Anthony "Tony Russo". Watch Dateline's "The Accused" this Friday, September 30, at 9/8 p.m. Central on NBC. Pastor Jim Fox later said that Russo came by his house and discussed the interrogation--saying he was likely going to be arrested for murder and theft of jewelry. This is true because a review of the factual sufficiency of the evidence begins with the presumption that the evidence supporting the judgment of conviction is legally sufficient. Appellant relies upon Brewer v. State, 126 S.W.3d 295 (Tex.App.-Beaumont 2004, no pet. Id. The medical examiner estimated that Diane died between 3 PM on November 15 and 3 AM on November 16. Contact us. 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). Rector made an independent investigation. Dr. Coons explained that a sexual sadist is sexually stimulated with a fantasy life and becomes obsessive. After being let into the house by a neighbor, the police found a fully clothed body in an upstairs bedroom. The first point of error is overruled. Cranford told him that she did not use it during the day. They then released him. 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. 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. There had been no interrogation along these lines. 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. 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. 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. 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. 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. pet.). What stood out about the stranger, according to neighbors, was the eerie and creepy vibe that he gave them while talking about the house. (statement to neighbor who lived less than one minute away that particular man was in declarant's apartment was made immediately thereafter.23 A functional test should be applied, i.e., whether the proximity in time is sufficient to reduce the hearsay danger of faulty memory and insincerity. Goode, 803.2 (citing Beauchamp v. State, 870 S.W.2d 649, 653 (Tex.App.-El Paso 1994, pet. However the demise case murder is as yet a secret. 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. The realtors' telephone numbers appeared on appellant's phone bill. At a time when newsroom resources and revenue across the country are declining, The Texas Tribune remains committed to sustaining our mission: creating a more engaged and informed Texas with every story we cover, every event we convene and every newsletter we send. Almost any relevant evidence offered by one party is going to be prejudicial to the opposing party. Id. A look at the commencement ceremony for the first graduating class of the Southwestern Baptist Theological Seminary program inside the Darrington Unit. Five of these witnesses were Great Hills residents who were approached at their homes on the day of the murder. He then inquired whether there was a husband or boyfriend with whom he could deal.