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art. In a search for tangible documents, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be searched. May 10, 201510 AM Central. In February 2004, Patrick stood trial for Dianes murder. 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.". 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. Appellant's DNA was also found on Holik's green bath towel that was discovered in the living room. 28.01 (West 2006). Id. We will not make appellant's argument for him on an issue that he has not chosen to present. 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. Appellant argues that the evidence held appellant up to public ridicule and shame and had little effect upon a fact of consequence. The name necrobabes.com was indirectly obtained from the computer search pursuant to the search warrant of June 18th, but that was a legal search and did not taint the acquisition of the name. Her testimony demonstrated that appellant and his wife had more than $40,000 in available monies in 1999, but that at the time of the offense, they had approximately $1,796.19. Another trial exhibit included his AOL search for "asphyx" (which is hardly the first time that searches have been used as evidence in criminal cases). 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. The special agent opened one of these files while systematically searching for NLM documents but wondered if the file might contain evidence of child pornography. The fianc and coworker were excluded, but Mills could not exclude DNA samples from the victim or appellant on the swab. A person who is observing or experiencing something may explain or describe it to someone else over the telephone. 2737). Suddenly, appellant was close behind her in the room and still was not speaking. Id. 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 had plans to meet on the weekend with a man who was leaving her house when she talked to Barajas on the telephone. See Tex.R. Performance & security by Cloudflare. Id. After examining Gray and Carey, the Wisconsin court held that images of child pornography observed when the analyst was systematically searching for harassment evidence was admissible under the plain view doctrine relating to the seizure of contraband or illegal possession of property. 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. Appellant also said that he stopped at only one house to ask for directions, which he received from an older gray-haired man. He makes no claim that the evidence was inadmissible because it revealed extrinsic acts or misconduct. See also Huffman v. State, 746 S.W.2d 212, 217 (Tex.Crim.App.1988); Whitaker v. State, 977 S.W.2d 869, 872-873 (Tex.App.-Beaumont 1998, pet. 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. We need not recite all the facts and circumstances demonstrating the lack of remoteness. See Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001); Dewberry v. State, 4 S.W.3d 735, 740(Tex.Crim.App.1999); Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App.1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993). Rector was then requested by a prosecutor to conduct a more thorough search to look for Internet activity related to real estate. Penal Code Ann. One of the principles of a factual sufficiency analysis is deference to the findings of the jury. The Inquisitr is a registered trademark. It was an awkward situation. People named Patrick Anthony. Appellant then asked several times when Cranford's husband would be home. Careful detective work, along with the help of many women who also encountered the mystery man, solves the case. In addition to testimony at Russos trial, revelations abouthis subscription to necrobabes.com (an asphyxiation-type pornographic website)andDNA evidence linked Russo to Holiks murder. 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. coming up -- patrick russo seems an unlikely killer. The computers Internet history made reference to a Web site named necrobabes.com, which was later determined to be an asphyxiation-type pornographic Web site. Later, she met her future fiance through a dating service. Id. 803. Proc. 2. The house was listed with a realtor for $435,000, and there was a for sale sign in the front yard. But we are sure that it is not available and his spouses name is not available. The murder was discovered when one of her co-workers at IBM became concerned that Holik had missed a scheduled meeting and was unreachable. [Featured Image by Jason Hunter, Watertown Daily Times, Pool/AP Images] Advertisement Latest #metoo News and Updates The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. 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 man, whom Cranford later identified as appellant, noted that Cranford had switched realtors, but the switch had occurred in July 200l. 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. Police also found that said man had identified himself differently to each homeowner. 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. 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). So long as the trial court operates within the boundaries of its discretion, there is no abuse of discretion and its decision will not be disturbed on appeal. In Hall v. State, 970 S.W.2d 137, 141 (Tex.App.-Amarillo 1998, pet. There had been a power struggle between the two at the church. Furthermore, Dianes engagement ring and some other expensive jewelry were missing from the house. 19.03(a)(2) (West Supp.2006).1 A jury found appellant guilty of capital murder. The first part of the fifth point of error is overruled. About 30 percent of Darringtons roughly 1,800 total inmates are serving sentences of 40 or more years, state data shows. We find no such motion or pretrial ruling thereon. The court added: This principle applies equally to a search for electronic files. Contact us. 103(a)(1). The scene that covers the Texas Killing is called "After the Storm". 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. See Tex.R.App. Diane was face down and had ligature marks around her all-over neck according to the source. This is the same story appellant was shown to be consistently telling other homeowners about returning on the weekend with his wife to look at the house. Several accesses were on November 13, 2001, two days before the Holik murder. McFarland v. State, 845 S.W.2d 824, 837 (Tex.Crim.App.1992). Dr. Elizabeth Peacock, deputy medical examiner, performed the autopsy and determined the cause of death to be homicide by ligature strangulation. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App.1995). 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. The instant offense occurred on November 15, 2001. "Tony Russo" whose real name is Patrick Anthony Russo has been confirmed that he brutally murdered Diane Holik at her Home. 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. Lived In Lake Jackson TX, Clute TX. 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. 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. 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. https://www.facebook.com/sheyman/posts/10154140006251645?match=ZGlhbmUgaG9saWs%3D. Family members of inmates who are students in the Southwestern Baptist Theological Seminary program were inspired during the May 9, 2015, commencement ceremony. To this exhibit, appellant expressed "no objection." at 985. He has appealed his case, but the Texas Court of Appeals rejected his argument and kept his sentence intact. 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. Id. 1341, 1350-51 (D.N.J.1982); Booth v. State, 306 Md. A violent thunder and rainstorm descended upon Austin in the afternoon of November 15, 2001. 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. A jewelry box, which contained a substantial amount of jewelry, including some very expensive pieces, was missing from the master bedroom. 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. Itll improve safety for correction officers, state Sen. John Whitmire, D-Houston, said Thursday at a press conference touting the program. Copyright 2023, Thomson Reuters. The defendant in Carey was arrested for the sale of drugs and consented to the seizure of his computer system. No rings were found on the body. By some measures, troublemaking is declining inside Darrington. According to CNET, ligature marks were present on the body, though the ligature used was not found at that time. She had been tied up and strangled, an autopsy report confirmed. We conclude that the general rule stated in Cooper is applicable capital murder cases where the offense was committed in the course of a robbery.7. 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. 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. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). he was in diane's area the day she was killed. Graduates Vondre Demond Cash (from left) and Gary L. Everett smile at fellow graduate Troup Hubert Foster Jr., as he shows them his diploma. 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. 1998, no. The touchstone of the Fourth Amendment is reasonableness. Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006) (reclarifying Clewis and overruling Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App.2004), to the extent of any conflict); see also Marshall v. State, 210 S.W.3d 618, 626 (Tex.Crim.App.2006). Keith Morrisons exclusive interview with Russo will air on Dateline NBCon Friday, September 23 at 9pm. (3)Then Existing Mental Emotional or Physical Condition. Evid. at 1271, the detective began to browse through the file directories in Carey's computer and stumbled across a JPG file18 and opened it. According to witnesses, Patrick Anthony Russo, 40, claimed he could pay cash for the home. Several of the Internet pages related to the realtors who testified at trial. Cardenas v. State, 115 S.W.3d at 62-63. Graduate Lloyd E. Gregg sings a hymn during the commencement ceremony for the first graduating class of the Southwestern Baptist Theological Seminary program. Cranford told him that her husband was not home often as he was a busy man, but that they had a realtor. pet.). * Gary A. Taylor, Law Offices of Gary Taylor, M. Ariel Payan, Austin, for appellant. 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. This led the police to Patrick Anthony Russo. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 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. According to the records, Tony Russo made some long-memories criminal history; he was captured on different occasions for attacking ladies. Her fiance, who was in Houston, was quickly ruled out. It is not an element of any crime, but evidence of motive is generally admissible because it is relevant as a circumstance tending to prove guilt. Stay up-to-date with how the law affects your life. Cranford opened the front door to prevent the bell from awaking the children. 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. Police raided Russo's home in the early morning hours of November 21, 2001. Holik's wrist bore indentations showing discernible redness, indicating that her heart was still beating when the wrists were bound. What stood out about the stranger, according to neighbors, was the eerie and creepy vibe that he gave them while talking about the house. 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. Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App.1987); Roberson, 16 S.W.3d at 164. He said that he did not enter any houses. Current counsel makes no belated request for the record. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App.2000). Intent may be inferred from the acts, words, and conduct of the accused. 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. Appellant argues that there were no eyewitnesses to the offense. A homeowner from another subdivision saw the drawing in the newspaper and called the police. Evidence which is not relevant is inadmissible.Tex.R. Follow along as LaDonna and Alecia share the heartbreaking details of how Patrick Anthony Russo's fetish played into Diane Holik's murder. There were no objections based on Rule 404(b) included in the written objections. Go ahead and find out with this little quiz https://t.co/Lkr0bKeh6f, Dateline NBC (@DatelineNBC) September 23, 2016. See Watson, 204 S.W.3d at 414-15. Id. 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. Cranford left the room and appellant stayed behind. Patrick Anthony Russo, 82. There were no signs of forced entry, and the lower floor seemed normal. They then released him. He also objected to excerpts from the testimony of certain other witnesses under Rule 403. 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. We cant say their name. Cloudflare Ray ID: 7a2ab1842cc41cc8 Keeping in mind that appellant does not challenge the legal sufficiency of the evidence to support the murder portion of the charged offense, we examine the challenged portion. Teena Fountain, an IBM coworker from Oak Park, Illinois, testified that on the morning of November 16, 2001, she was contacted by coworkers, Diane Kapcar of Dallas and Cynthia Barajas of Los Angeles, California, who reported that Holik had missed a scheduled meeting, and that they had been unable to contact her by any available means. The evidence shows that appellant and his wife had a $199,000 mortgage on their trailer home in Bastrop.4. 3. Dr. Richard Coons, a psychiatrist and an attorney, testified concerning his training in human sexuality. In the instant case, appellant challenges only the legal sufficiency of the evidence to establish the underlying offense of robbery. Id. How much? In part because of his Necrobabes.com membership, Russo was found guilty of the November 15, 2001 strangulation of Diane Holik, who worked from her home in Austin and was hoping to sell her house and move in with her fiance in Houston. Commonwealth v. Marshall, 287 Pa. 512, 135 A. Knowing that the Austin storm had spawned some tornadoes, Fountain called the Austin Police Department that afternoon asking for a check on Holik. Many neighbors and family members detailed that a man came on November 15 needing to buy their property. document.getElementById("ak_js_1").setAttribute("value",(new Date()).getTime()), Who is Kim Pauckner? Evid. Barajas testified that she warned Holik not to let strangers in her home when she was alone. What: A Texas church leader found guilty of strangling an Austin woman to death appeals his conviction. The realtors' telephone numbers appeared on appellant's phone bill. Questions, as here, of when testimony becomes too remote and, therefore, irrelevant are left to the sole discretion of the trial court. ref'd). 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. 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. People may receive compensation for some links to products and services on this website. ref'd))). While systematically opening all user-created files, [the computer analyst] opened one that contained images that he considered child pornography. The Texas lawmakers said the site of smiling inmates leading others in prayer moved them and helped bring the program to Texas. Do you value our journalism? Almost any relevant evidence offered by one party is going to be prejudicial to the opposing party. 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. 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. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). 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. Appellant cites no authority to support his contentions. We have no more Information about his Father; we will try to collect information and update soon. ref'd). The agent was not required to accept as accurate any file's name or suffix and limit his search accordingly, as experienced hackers often intentionally mislabel files and directories in order to conceal information. at 984-85. A man convicted of strangling an Austin woman after entering her home by posing as a potential buyer has been sentenced to life in prison. He was sentenced to life in a Texas prison. The overwhelming evidence against him meant only one thing: a conviction. All Rights Reserved. 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. Barnes v. State, 62 S.W.3d 288, 297 (Tex.App.-Austin 2001, pet. Appellant relies upon Brewer v. State, 126 S.W.3d 295 (Tex.App.-Beaumont 2004, no pet. Some 1,200 necrobabes.com related images were recovered.6. The search recovered eight images of child pornography including the two transmitted ones. He was a full-time unskilled employee at a custom-cabinet-making company. A composite drawing of the man was prepared by an artist with directions from one of the homeowners. Appellant's wife, Janet, was a school teacher for the Smithville Independent School District. Patrick Anthony RUSSO, Appellant, v. The STATE of Texas, Appellee. The police never mentioned, however, that Holik's jewelry was missing. Appellant's remoteness argument is broad based. The prosecution called thirteen witnesses who were attempting to sell their homes from May to November 15, 2001, or were realtors. He had given different names to them and said that he would pay in cash. A state jury found Russo guilty of capital murder, and he was given a life sentence. The Dateline NBC episode After the Storm, investigates the November 15, 2001 death of Diane Holik. There were no statutory pretrial motions involved. At the hearing, no objections were addressed to the testimony offered. Tonight, Dateline will investigate the details of Holik's death. A trial court's evidentiary ruling on a hearsay objection must be upheld absent an abuse of discretion. 22. Assuming that the objections were timely made, see Tex.R.App. Detective Roy Rector initially searched the computer using the Encase software for references to Holik and found none. Your IP: The cause of death was ligature strangulation. Datelines After the Storm will include interviews with friends and family members of Diane Holik and Travis County investigators. (In cases of ligature homicide, blood flow to the brain is blocked and consciousness is lost in 10 to 15 seconds.). However the demise case murder is as yet a secret. The evidence indicates that Holik's dogs had been confined in the house for some time. 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. The facts do not show that Detective Rector exceeded the scope of the search warrant of June 18 in violation of the Fourth Amendment. 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. 1 A jury found appellant guilty of capital murder. Appellant's known fingerprints matched the prints on the black-and-white flyer and prints on the flyer box in Tammy Cranford's yard. Appellant Patrick Anthony Russo appeals his conviction for capital murder. 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.. In such an event, what the listener on the telephone hears is a present sense impression. David F. Binder, Trial Practice Series, Hearsay Handbook 8: 1 at 8.6 (4th ed.2001) (citing Brown v. Tard, 552 F.Supp. 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. Hickson's testimony thus falls within the present sense impression exception to the hearsay rule. All persons inherit mitochondrial DNA from their mothers-so maternal relatives have the same M-DNA. Nelson examined seven hairs recovered from the victim's home. ref'd); Schexnider v. State, 943 S.W.2d 194, 198-99 (Tex.App.-Beaumont 1997, no pet.). 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. The manager of the KNLE station, Sherland Priest, testified that because of the approaching storm, all employees were in the lobby with the doors open because of expected high winds on the afternoon of November 15, 2001. That search was not abandoned in favor of an investigation into necrobabes.com.. Priest testified that appellant did not appear at the station on the day and time in question. No such necklace was found. Patrick Anthony Russo, Diane Holiks Killer: 5 Fast Facts You Need to Know, Copyright 2023 Heavy, Inc. All rights reserved. After reviewing Carey, Walser, Gray, and other authorities, the Rosa court wrote: We agree with the reasoning of these cases. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000); Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). He began to pet the animal and the dog responded. See Santellan, 939 S.W.2d at 168; Harrell v. State, 884 S.W.2d 154, 161 n. 14 (Tex.Crim.App.1994). See Tex.Code Crim. Appellant told her that he would pay cash, that he had just sold a ranch, and that he needed to buy quickly. 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. He even spent time in jail for choking a woman. Evidence was admitted that demonstrated that appellant's wife (a school teacher) and his son (a student) were at school during much of the time that the Internet was used to access the necrobabes.com Web site. Akia Eggleston went missing in Baltimore, Maryland in May of 2017.