2.01 (West 2003); Ward v. State, 143 S.W.3d 271, 274 (Tex.App.-Waco 2004, pet. He gave the name of Jim Taylor. 401 & 403.9. In his fifth point of error, appellant urges that [t]he trial judge erred in the admission of extraneous conduct evidence from other8 homeowners and realtors under Tex.R.Crim. Id. 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. 403. She died on 16 November 2001 in Austin, Texas, USA. Find your friends on Facebook. Proof of a completed theft is not required. There are no points of error raised regarding the penalty stage of the trial. 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. This ring, and a necklace she routinely wore, a brown box containing expensive pieces of jewelry, and a spare house key were determined to be missing. 803(3). Her valuable engagement ring was in her possession at 1:30 p.m. on November 15, 2001. 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. At trial, appellant asserted that the witnesses, after learning of the homicide, overreacted in their trial descriptions of their encounters with appellant. Appellant does not claim that any one exhibit or one set of exhibits was irrelevant and prejudicial but urges that all the named exhibits fell into that category. Appellant's DNA was found on Holik's left hand, where engagement rings are worn. Using this number, the police were able to identify appellant as the man they were seeking. Appellant stated that the storm began and he left. ; Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). Holik was excited because she thought she had sold her home. Matamoros v. State, 901 S.W.2d 470, 474 (Tex.Crim.App.1995); Brewer v. State, 126 S.W.3d 295, 297 (Tex.App.-Beaumont 2004, pet. 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. pet.). Proof of robbery committed as an afterthought and unrelated to the murder is not sufficient evidence of capital murder. The episode covering the Texas Killing is "After the Storm". Copyright 2023, Thomson Reuters. 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. 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. Investigators say the murderer stayed in Diane Holik's home for a bit to "erase" any sign of them being there. There had been no interrogation along these lines. ref'd). Therefore, the trial court did not abuse its discretion in admitting this testimony under Rule 803(1). Diane Holik: 5 Fast Facts You Need to Know | Heavy.com Appellant's hearsay objection was overruled. A reviewing court may, however, disagree with the result to prevent a manifest injustice. Diane is on the list of graduates from high school. Resides in Austin, TX. 7. Under all the circumstances, if error was properly preserved and presented, we conclude that the trial court did not abuse its discretion in overruling appellant's pretrial Rule 403 objections. This court found no abuse of discretion in the admission, pointing out that the complained-of evidence was offered to show the victim's state of mind on July 10, some two weeks before her disappearance, as to her intent to continue her relationship with Fain. Id. Barajas testified that she warned Holik not to let strangers in her home when she was alone. (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. Plenty of dogs at Midland Animal Services are waiting for their furever home. One Possible Clue Found at Diane Holik Crime Scene Investigators were concerned they had a "stranger on stranger" crime, and were frustrated by the lack of evidence. In analyzing a challenge to the legal sufficiency of the evidence, a reviewing court does not realign, disregard, or weigh the evidence. 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). Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App.2005); Clewis, 922 S.W.2d at 134. Appellant argues that the evidence held appellant up to public ridicule and shame and had little effect upon a fact of consequence. Diane Holik (8 matches): Phone Number, Email, Address - Spokeo She stated that appellant breezed through some areas of the house. Cranford thought the drawing bore a very good resemblance to appellant. ref'd). During a pretrial hearing on August 18 and 19, 2003, seventeen female homeowners and realtors testified by agreement of the parties with the approval of the trial court, apparently hoping to save time later at the trial on the merits. Evid. Barajas related that Holik gave an explanation for why she was late. Appellant relies upon Brewer v. State, 126 S.W.3d 295 (Tex.App.-Beaumont 2004, no pet. Tex.R. at 95-96 (citing Kearney v. Commonwealth, 4 Va.App. According to Detective Rector's testimony, the unallocated clusters at some point were resident in the computer but had been deleted. 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 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. P. 33.1. Appellant does not complain of the admission of all the evidence taken from his computer. Further, he does not challenge the probable cause underlying the search warrant issued June 18, 2003, and under which the computer was seized. Texas, 2001: Diane Holik is strangled in her home. Russo claimed he could afford to buy the $450,000 house even though he had less than $2,000 in his bank account. Rector was able to download these introductory screens, and these exhibits were admitted into evidence. ref'd). Other evidence showed that several days before the murder, appellant accessed the necrobabes.com Web site which detailed a scenario that involved the ligature strangulation of a woman and the theft of her jewelry. After reviewing Carey, Walser, Gray, and other authorities, the Rosa court wrote: We agree with the reasoning of these cases. 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. All rights reserved. Contact us. In the same general time frame, Diane Holik was murdered by ligature strangulation in her own home at XXXX Pathfinder in the Great Hills subdivision in Austin, where she lived alone. at 984-85. ref'd). The sixth ground of error is overruled. The statement met all the requisites as described in Brown. The jury may accept or reject all or any part of any witness's testimony, Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App.1998), and resolve any conflicts in the evidence. 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. Barajas warned Holik that she should not let strangers into her home when she was alone. He was able to view information about the payment of fees and the purchase of a membership on the Web site. 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. But a second look at the crime scene would reveal a possible hint to the killer's identity. 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. Evid. There they find her lifeless body and a killer who's left few clues behind. Appellant's DNA could not be excluded from four of nine loci considered by Mills. The prosecutor requested Rector to determine if there was additional information of that type on the Internet history concerning necrobabes.com. Rector was to continue his search for matters relating to real estate and the sale of homes in the Austin area. If this was an objection, it was not included in the written objections. The Dog Owner's Home Veterinary Handbook The Complete Dog Book for Kids. Diane Holik Profiles | Facebook Dr. Peacock estimated that Holik died between 3:00 p.m. on November 15 and 3:00 a.m. on November 16, 2001. 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. 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 company's filing status is listed as Forfeited Existence and its File Number is 0800520616. While systematically opening all user-created files, [the computer analyst] opened one that contained images that he considered child pornography. See Tex.R.App. Holik's last known telephone conversation occurred at 3:30 p.m. on November 15, 2001, and her computer had been shut down at 3:59 p.m. the same day. They have also lived in Huntington Station, NY and Wyandanch, NY. 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. at 527. ref'd). Id. Donald Ray Holik, 56. The doctor testified that in his opinion, the hypothetical scenario strongly suggests that the defendant in the scenario sought sexual gratification through ligature strangulation. TILLA RE LLC is a Texas Domestic Limited-Liability Company (Llc) filed on July 20, 2005. Hon. Holik, 42, planned to sell the home, get married and move to Houston. Then multiple women report a man behaving strangely while looking at properties for sale or rent. See Tex.R. 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. At the hearing, no objections were addressed to the testimony offered. 403.12 He does not advance a claim that his extraneous conduct with these latter witnesses was inadmissible, but only that only certain parts of their testimony about their own emotions, feelings, or actions during or after their interactions with appellant were inadmissible because their probative value was substantially outweighed by the danger of unfair prejudice. at 680; see also Saldivar v. State, 980 S.W.2d 475, 495 (Tex.App.-Houston [14th Dist.] Priest testified that appellant did not appear at the station on the day and time in question. JPG, also known as JPEG files, contain images. The Dateline NBC episode "After the Storm," investigates the November 15, 2001 death of Diane Holik. 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.. Details. 2737). See Watson, 204 S.W.3d at 414-15. 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. The body was fully clothed and there was no evidence of a sexual assault. Jury convicts man who posed as homebuyer to kill 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. Pastor Fox stated that appellant felt that he was going to be arrested for killing a lady. At the conclusion of the hearing, appellant was permitted to wait and view the completed transcription of the court reporter's record of the hearing and then make objections. Evid. He was able to view for free the introductory screens, photographs, and stories pertaining to the death of women by strangulation. She had been tied up and strangled, an autopsy report confirmed. Diane Holik was a resident of New York who was looking to move around the country after she engaged. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex.App.-Austin 1997, no pet.). Id. That search was not abandoned in favor of an investigation into necrobabes.com.. Diane Holik was a resident of - The Arts of Entertainment - Facebook Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Glad he's in prison for life. If you have questions, please contact [email protected] Email not found. See Chaney v. State, 474 S.W.2d 711, 712 (Tex.Crim.App.1972); Dean v. State, 154 S.W.2d 459 (Tex.Crim.App.1941). 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 phone number (570) 427-4098 (Verizon Pennsylvania, Inc) is Diane's. 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. Cranford told him that she did not use it during the day. Appellant did not return the next day. Ties That Bind. Hickson's testimony thus falls within the present sense impression exception to the hearsay rule. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. He had pleaded innocent. 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). Appellant has briefed points of error six and seven together, making it difficult to determine just which exhibits appellant complains of in point of error seven. When she misses a meeting at work police are called to her home. He said that he did not enter any houses. The Development Wells report for Texas Railroad Commission Districts 7C, 8 and 8A. Susan Fox, the pastor's wife, testified about the same conversation. at 1273. 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. We find no such motion or pretrial ruling thereon. The search program permitted a search of the names and contents of the files. 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. It was shown at trial that she wore the charm on a necklace. Deem noted that it was common practice to manually open picture files because text (such as chat sessions) could be found in JPG files. Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. 9. Stay up-to-date with how the law affects your life. 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. A person who is observing or experiencing something may explain or describe it to someone else over the telephone. Her $17,500 engagement ring was missing. If appellant preserved error for review, it is based on these pretrial rulings under the unique circumstances described. The search ceased, and a second warrant was obtained to search for child pornography. Stars Diane Holik Patrick Russo Lester Holt See production, box office & company info Add to Watchlist Photos Top cast 17. Barb (@JetSkiGirlRN) January 15, 2017 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. The police officers also recovered a green towel found on a couch downstairs. There were no statutory pretrial motions involved. 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. Six Degrees of Murder: Ties That Bind - Philo She was excited about the real possibility of selling her home. Movies/Documentaries Six Degrees of Murder: Ties That Bind Motives & Murder: Death Knocks Dateline: After the Storm. . There was no objection to this latter statement which was Barajas's opinion, not a present sense impression exception to the hearsay rule. Dogs inside the house appeared to have left fecal matter on the carpet, indicating that they had been confined for some time. 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. 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.
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