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. Donald Ray Holik, 56. Later, he parsed out of that history the part associated with necrobabes.com detailing appellant's activity with it. 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. 9, 4-5, 75, 81 [pretrial]; R. Vol. He testified that he hypothesized the coincidental chances of obtaining the same nuclear DNA results in this case would be one in 16,817. The Tenth Circuit clarified and expanded its Carey decision in United States v. Campos, 221 F.3d 1143 (10th Cir.2000), and United States v. Walser, 275 F.3d 981 (10th Cir.2001). That search was not abandoned in favor of an investigation into necrobabes.com.. ref'd). The State offered and did eliminate certain parts of the testimony of Melody Blount and Tammy Tayman. FACTUAL SUFFICIENCY-MURDER IN THE COURSE OF ROBBERY. The statement met all the requisites as described in Brown. Appellant advances eight points of error. Her nineteen-month-old son was in the master bedroom and her three-month-old daughter was in the nursery. Though the death case murder is still a mystery. No rings were found on the body. 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 defense closed with the State at this stage of the trial without offering evidence. The email address cannot be subscribed. Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App.1999). See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). As noted, on November 18, 2003, another search warrant was issued by a district judge to search the hard drive of appellant's computer for, inter alia, information, photos, and text from a Web site named necrobabes.com and information pertaining to death by asphyxiation. At least two homeowners testified that the man came to their houses twice on November 15, 2001, in the Great Hills subdivision. The trial court submitted to the jury both theories of capital murder alleged in the indictment, that the murder occurred in the course of (1) a robbery or (2) a kidnapping. Evid. The court reasoned that the special agent would have been remiss not to search the JPG files merely because such files are generally picture files and he believed that the materials he sought were most likely to be text files. They worked as a team in managing new college hires for IBM. Her $17,500 engagement ring was missing. 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. Russo, a part-time music minister, pretended he was interested in purchasing. The man asked for a floor plan, which Cranford did not have. See Tex.R.App. Almost more than five years ago, Diane Holik was brutally murdered in her own Home in Austin, Texas, by Patrick Anthony "Tony Russo". 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. The man, whom Cranford later identified as appellant, noted that Cranford had switched realtors, but the switch had occurred in July 200l. He stopped opening picture files and obtained a second search warrant that allowed him to specifically search for child pornography. The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. At the hearing in the jury's absence, Barajas testified that when Holik answered the telephone, she (Barajas) heard a commotion. This evidence was not repeated before the jury. There are no points of error raised regarding the penalty stage of the trial. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 3. 404(b). 404(b). See Tex.R. The reliance is misplaced. 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. Id.19. 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. 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. Movies/Documentaries Six Degrees of Murder: Ties That Bind Motives & Murder: Death Knocks Dateline: After the Storm. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. Texas, 2001: Diane Holik is strangled in her home. 17. All rights reserved. The index.dat files reflect the computer's Internet history but do not contain any Web pages and images. He makes no claim that the evidence was inadmissible because it revealed extrinsic acts or misconduct. 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. Top 3 Results for Diane Holik. State's Exhibit 621 was also generated by Rector and showed Internet activity on the computer on April 27, 2001, with the user-profile of a Patrick Russo and with the use of the AOL (America Online) engine to search for a subject associated to asphyx. To this exhibit, appellant expressed no objection. This exhibit is not before us for consideration of its relevancy. Sign Up. Appellant complains that the jury was presented with information about his membership in the necrobabes.com Web site and substantial and prejudicial images and stories of asphyxiation that had been viewed on his computer. No zip ties were found on the body or in the house. While systematically opening all user-created files, [the computer analyst] opened one that contained images that he considered child pornography. 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.. 6. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005); Clewis, 922 S.W.2d at 134. art. Susan Fox, the pastor's wife, testified about the same conversation. Although it is not clear, it appears that appellant is limiting his point of error to certain witnesses apart from all homeowners and realtors whose testimony was not objectable or to which there was no objection. The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. 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. (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. Holik's body was found face down on the floor in an upstairs guest bedroom. 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. Conner, 67 S.W.3d at 197. See Santellan, 939 S.W.2d at 168; Harrell v. State, 884 S.W.2d 154, 161 n. 14 (Tex.Crim.App.1994). He had pleaded innocent. 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. There was evidence that appellant's wife inquired about property in Bastrop County. 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. Rankin, 974 S.W.2d at 718. Appellant appeared broken and downcast when making his statements. ref'd). In fact, appellant did not request that the court reporter's record be included in the appellate record. Several accesses were on November 13, 2001, two days before the Holik murder. Evid. Id. 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). Diane Holik was born on 10 September 1958 in Bay Shore, New York, USA. The 43-year-old worked for IBM as an executive, ultimately settling in Austin in 1996. Appellant claimed that he knocked on the front door but no one at the radio station answered. Tex. Some of these exhibits were introduced into evidence. In Hall v. State, 970 S.W.2d 137, 141 (Tex.App.-Amarillo 1998, pet. 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. 28.01 (West 2006). No such necklace was found. See Photos. Appellant relies on Rule 40111 to claim that the testimony of seven of the female homeowners and realtors concerning their encounters or interactions with appellant was too remote to be relevant. The person is aroused by watching and controlling another with knives or guns or injuring them by other methods, including ligature strangulation. We need not recite all the facts and circumstances demonstrating the lack of remoteness. Appellant calls attention to certain words and phrases lifted out of context in the individual testimony. In connection with appellant's argument, we examine other cases. 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. There were no trial objections to the subject matters advanced in this point of error. Alternatively, you can call Diane P Holik's home phone at (631) 643-9030. Holik's realtor and neighbor, Lakki Brown, saw the police officers. 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. 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. Id. Diane was a New York native who moved around the country a lot, thanks to her work. Zimmerman v. State, 860 S.W.2d 89, 93 (Tex.Crim.App.1993). The first part of the fifth point of error is overruled. The sixth ground of error is overruled. 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. All the doors and windows were locked. Rule 803 in part provides: The following are not excluded by the hearsay rule, even if the declarant is available as witness: (1)Present Sense Impression. 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. See Results. Russo claimed he could. Resides in Austin, TX. pet.). Appellant seeks to distinguish Bachhofer on the basis that the instant case did not include any criminal act by appellant during the encounters. On the second occasion, Ramirez noted the license plate of the Ford minivan that appellant was driving. at 680; see also Saldivar v. State, 980 S.W.2d 475, 495 (Tex.App.-Houston [14th Dist.] Suddenly, appellant was close behind her in the room and still was not speaking. ref'd). In such an analysis, we view all the evidence in a neutral light. 1. Rosa, 628 S.E.2d at 95 (quoting Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. Includes Address (9) Phone (1) See Results. Diane Tasker-Holik. 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. We overrule the third point of error. This is true even where the element of appropriation occurred after the murder. 2529, 101 L.Ed.2d 472 (1988); Crosby v. State, 750 S.W.2d 768, 780 (Tex.Crim.App.1988). Appellant does not complain of the admission of all the evidence taken from his computer. ", Jury convicts man who posed as homebuyer to kill. Barajas related that Holik gave an explanation for why she was late. In points five and eight, appellant complains of the trial court's evidentiary rulings in admitting irrelevant, prejudicial, and hearsay evidence. Rule 403 provides:Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.Tex.R. Appellant did not further object at trial. 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 will not make appellant's argument for him on an issue that he has not chosen to present. 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. 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.. She had recently put her suburban home up for salenever realizing it would lead to the end of her life.. 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. 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. Appellant cites no authority to support his contentions. P. 33.1(a). It was shown at trial that she wore the charm on a necklace. 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. Cranford told him that her husband was not home often as he was a busy man, but that they had a realtor. It has been said that three principal requirements must be met before hearsay evidence may be admitted as a present sense impression: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration must be contemporaneous with the event.
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