However, Diane was found dead on the first floor in one of the bedrooms upstairs. Id. Patrick Anthony. State Sen. John Whitmire, Lt. Gov. In 2010, Lt. Gov. Penal Code Ann. As noted, appellant cannot rely upon Rule 404(b) because he made no objection on that basis either at trial or at the pretrial hearings. 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. 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). The Texas Court of Appeals rejected those arguments and left his sentence intact. Evid. There were 1,200 images recovered. 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. The evidence of actions taken by the female witnesses while interacting with appellant (taking precautionary measures, staying away from appellant, checking on a child, or calling family, friends or police) or their expressions of concern provided significant background information about the circumstances under which the events occurred. Appellant placed the black-and-white flyer on a table in the foyer. the nissan rogue, murano and pathfinder. She stated that appellant breezed through some areas of the house. Prosecutors said Russo posed as someone looking to buy a home to get into Diane Holik's house in November 2001. In points six and seven, appellant contends that the trial court erred in failing to suppress evidence resulting from the illegal search of appellant's computer and then admitting irrelevant and prejudicial extraneous evidence of the computer's contents.2 We will affirm the judgment of conviction. 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. But we are sure that it is not available and his spouses name is not available. 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. 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. There is no per se rule by which to determine when evidence is too remote to be admissible. Rule 802of the Texas Rules of Evidence states: Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Kimberlyn Nelson of Mitotyping Technologies at State College, Pennsylvania, testified that she specialized in mitochondrial DNA testing. Id. Diane was face down and had ligature marks around her all-over neck according to the source. The car plates were traced back to 38-year-old Tony Russo, aka Patrick Anthony Russo, a church worker and music director with a rap sheet dating back to the 1990s. In capital murder offenses committed during the course of a robbery, see Tex. Here again, appellant does not contest the evidence supporting the murder conviction but claims only that the evidence is factually insufficient to show that the offense occurred in the course of a robbery. Dateline has featured Holik's story of his demise. Through irrefutable scientific evidence, the police were able to bring the culprit to justice. Appellant's relevancy objections were specifically directed only to the question of remoteness concerning appellant's encounters with certain female homeowners and realtors. L.J. He indicated that the material from the erotic asphyxiation Web site tended to reveal the motive for the killing of the victim, which was sexual sadism. There was no sign of a sexual assault.. On June 18, 2003, a search warrant was issued authorizing the search of appellants home and the seizure of his personal computer and its content. The prosecutor noted that the Internet history made reference to a "Necrobabes.com. Her $17,500 engagement ring was missing. The program, funded by the nonprofit Heart of Texas Foundation, was modeled after a similar effort in Angola, La. Id. The e-mail and home addresses on the membership records matched appellant's. He compared the samples with known DNA samples from the victim, the appellant, the victim's fianc, and a male coworker. He qualified as an expert witness for the State. 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. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). In the other part of this point of error, appellant claims that the trial court erred in its pretrial ruling concerning the admissibility of certain testimony of each of thirteen witnesses under Rule 403. 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. Akia Eggleston went missing in Baltimore, Maryland in May of 2017. 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. She had been tied up and strangled, an autopsy report confirmed. No rings were found on the body. Only the numbered exhibits were admitted into 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. FBI agents executed a search warrant on the defendant's home and seized four computers in connection with an investigation of unauthorized computer intrusions. She was face down and had ligature marks around her neck. See Tex. The sentence was returned Friday. The body was fully clothed and there was no evidence of a sexual assault. The 42-year-old IBM supervisor was in the midst of selling her large upscale home in Austin, Texas when a man posingas a potential buyer strangled her to death in herhouse. She jotted down the license plate numbers when she recognized him from the police composite sketch. Resides in Bastrop, TX. 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 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. Brewer is not applicable in light of the facts here. A chapel inside the Darrington Unit, where inmates can participate in the Southwestern Baptist Theological Seminary program to become Christian ministers. 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. 9, 4-5, 75, 81 [pretrial]; R. Vol. He looked at her and his demeanor seemed to change. As a nonprofit newsroom, we rely on members to help keep our stories free and our events open to the public. 2737). at 95-96 (citing Kearney v. Commonwealth, 4 Va.App. 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. Evid. 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. Knowing that the Austin storm had spawned some tornadoes, Fountain called the Austin Police Department that afternoon asking for a check on Holik. Wiki, Biography, Age, Spouse, Net Worth, Fast Facts. Appellant's known fingerprints matched the prints on the black-and-white flyer and prints on the flyer box in Tammy Cranford's yard. There was no objection to this latter statement which was Barajas's opinion, not a present sense impression exception to the hearsay rule. He left the black-and-white flyer behind. Johna Ramirez, who lived in the Upland subdivision of Austin, identified appellant as the man who came to her house, which was for sale, on May 15 and November 5, 2001, both times just after her husband left for work. 404(b).20 The trial court gave limiting instructions to the jury that are not the basis of the complaints here. 8. Cranford invited him into the house. Evidence which is not relevant is inadmissible.Tex.R. 21. The mothers name is Not Available. Outcome: Appeals court rules defendant's AOL searches for asphyxiation and visits to Necrobabes.com were reasonably used as evidence and upholds conviction. Appellant stated that the storm began and he left. See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). 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. 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. He was able to view for free the introductory screens, photographs and stories pertaining to the death of women by strangulation. 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." In this point of error, appellant does not claim that he was not identified, by direct or circumstantial evidence, as the individual involved in the encounters with the female homeowners or realtors. All rights reserved. Later, she met her future fiance through a dating service. Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App.1999). 403. Now, the police had to figure out who visited Diane in that period. in charity morgan burger recipe. Powered by. That search was not abandoned in favor of an investigation into necrobabes.com.. 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. 404(b). 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. DNA evidence found at the scene also tied Patrick Anthony Russo to the murder of Diane Holik. In his related seventh point of error, appellant urges that the trial judge erred in admitting irrelevant and prejudicial extraneous evidence of the contents of appellant's computer. Appellant argues that the evidence was not relevant under Texas Rules of Evidence 401 and 402 and was more prejudicial than probative. 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. 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. 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. Graduates Vondre Demond Cash (from left) and Gary L. Everett smile at fellow graduate Troup Hubert Foster Jr., as he shows them his diploma. In his interview with the police, appellant asked them what motive he would have to kill Holik, a woman that he did not know. He presented a music serve at a congregation in Bastrop County, Texas. 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. Akia Eggleston. Russo proved to be a paying subscriber to the website, Necrobabes.com, which offers erotic horror for adults by providing staged photos and video of usually nude women appearing to be strangled, suffocated, hanged and drowned, according to C Net. Barajas knew about Holik's personal life, that Holik lived alone and worked from her home, that Holik had an upcoming marriage and wanted to sell her Austin home, and that Holik had Thanksgiving holiday plans with her fianc. pet.). M. Scott Taliaferro, Assistant District Atty., Austin, for appellee. Only unfair prejudice as set forth in Rule 403 provides a basis for excluding relevant evidence. 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. Proof of robbery committed as an afterthought and unrelated to the murder is not sufficient evidence of capital murder. 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.. He began to pet the animal and the dog responded. 18. The car plates were traced back to 38-year-old Tony Russo, aka Patrick Anthony Russo, a church worker and music director with a rap sheet dating back to the 1990s. This inference is not negated by evidence of an alternative motive that a jury could rationally disregard. He said that he was a music minister at a church in Bastrop County, Texas. P. 33.1. Appellant's DNA was also found on Holik's green bath towel that was discovered in the living room. Cathy Vance, a forensic analyst with the white collar crime unit in the district attorney's office, analyzed appellant's financial records. 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. 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. 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. 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. Consequently, he additionally said that he was elsewhere at the hour of the homicide, yet his phone records set him close to Diane Holiks home region. 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. See also Robinson v. State, 701 S.W.2d 895, 898 (Tex.Crim.App.1985) (six months is not too remote). Pastor Fox stated that appellant felt that he was going to be arrested for killing a lady. Zimmerman v. State, 860 S.W.2d 89, 93 (Tex.Crim.App.1993). In Rosa v. Commonwealth, 48 Va.App. 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. The reliance is misplaced. Whitmire said that to bring such a program to Texas is a miracle.. The police officers also recovered a green towel found on a couch downstairs. The medical examiner estimated that Diane died between 3 PM on November 15 and 3 AM on November 16. See Tex.R.App. We need not repeat the applicable authorities cited in our discussion under the fifth point of error. The doctor testified that in his opinion, the hypothetical scenario strongly suggests that the defendant in the scenario sought sexual gratification through ligature strangulation. Sept. 24, 2016 Best of NBC News Play All NBC News Channel Three climbers killed in. See Tex.R.App. The episode covering the Texas killing is After the Storm. Currently, her killer, Tony Russo, is incarcerated. Almost more than five years ago, Diane Holik was brutally murdered in her own Home in Austin, Texas, by Patrick Anthony "Tony Russo". He has appealed his case, but the Texas Court of Appeals rejected his argument and kept his sentence intact. Current counsel makes no belated request for the record. The first graduating class of the program, taught by Southwestern Baptist Theological Seminary professors inside the Darrington Unit, includes (from left) Leslie Monroe Capers III, Vondre Demond Cash and Gary L. Everett. Russo is currently serving a life-sentence for the murder of Diane Holik. Id. At the hearing, appellant agreed that Barajas's warning to Holik was not hearsay and expressly stated that he had no objection to the testimony about Holik's recovery of her ring or rings. This is true, but the hypothetical scenario propounded by the State to Dr. Coons did not include any reference to robbery. Last week, Inquisitr brought you the case of erotic fantasy killer Patrick Anthony Russo, which was also profiled on Dateline NBC. 19.03(a)(2) (West Supp.2006).1 A jury found appellant guilty of capital murder. 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. 221 F.3d at 1147. If, based on all the evidence, a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant's guilt, due process requires that we reverse and order a judgment of acquittal. Fisher, 851 S.W.2d at 302 (quoting Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992)); see also Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App.2004).