The man, whom Cranford later identified as appellant, noted that Cranford had switched realtors, but the switch had occurred in July 200l. The man told some that he would return with his wife on the weekend to see the house, that he had recently sold a ranch or some property, and that he would be paying cash. The Dog Owner's Home Veterinary Handbook The Complete Dog Book for Kids. Crime Mystery Docudrama. 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. Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. 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 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. The phone number (570) 427-4098 (Verizon Pennsylvania, Inc) is Diane's. That search was not abandoned in favor of an investigation into necrobabes.com.. Appellant worked at the New Life In Christ Church in Bastrop. The file in question was not seized or opened. 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. Please try again. Appellant also said that he stopped at only one house to ask for directions, which he received from an older gray-haired man. Questions Post Question There are no questions yet for this company. In many situations, he wanted to meet the woman realtor alone at the site of the vacant house. The Dateline NBC episode "After the Storm," investigates the November 15, 2001 death of Diane Holik. The search recovered eight images of child pornography including the two transmitted ones. Cranford invited him into the house. Cranford thought the drawing bore a very good resemblance to appellant. 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. We shall consider the issue presented. Related To Wilfried Holik, Ingrit Holik, Thomas Holik, Linda Holik. Using this number, the police were able to identify appellant as the man they were seeking. Appellant cites no authority to support his contentions. In making his factual sufficiency argument, appellant continues to argue that there was insufficient evidence to establish robbery during the course of a murder. 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. 401 & 403.9. At the hearing, no objections were addressed to the testimony offered. 19.03(a)(2) (West Supp.2006).1 A jury found appellant guilty of capital murder. Barajas related that Holik was excited to be selling her home and was eager to do so.22. Id. (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. Rector then performed some keyword searches on the hard drive copy using Diane Holik, Pathfinder, and Lakki Brown (Holik's realtor). The Web site was accessed or visited by appellant's computer in the month prior to the victim's murder, including on November 13, 2001, two days before the offense occurred. 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. Id. 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. The trial court, however, did admit Barajas's testimony that Holik said, This guy just left under Rule 803(1) over a hearsay objection. He then stated that he and his wife could return the next day. 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. Cranford and appellant went to the son's bedroom. In such an analysis, we view all the evidence in a neutral light. Hearsay is a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Weekly New York & New Jersey Energy. Almost any relevant evidence offered by one party is going to be prejudicial to the opposing party. The court further found that even though there may have been less invasive ways of conducting the search, the resolution of the suppression issue does not turn on whether [the officer] conducted the most technically advanced search possible, but on whether the search was reasonable. Gray, 78 F.Supp.2d at 529 n. 8. P. 33.1. If the computer erases the index, the file is still out there in the unallocated clusters until the computer reuses that space.. Cranford said that appellant's eyes somehow looked bigger and deeper and darker and that he seemed to be a different person. 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. The 42-year-old IBM supervisor was in the midst of selling her large upscale home in Austin,. See also Robinson v. State, 701 S.W.2d 895, 898 (Tex.Crim.App.1985) (six months is not too remote). at 527. P. 33.1(a). 28.01 (West 2006). Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App.1999) (quoting Montgomery, 810 S.W.2d at 389). No zip ties were found on the body or in the house. 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. Family and friends are slowly eliminated until it is likely a stranger murder. All these witnesses, except Bob Reynolds, were women. Circumstantial evidence of intent is not required to meet the same rigorous criteria for legal sufficiency as circumstantial proof of other offensive elements. The New Encyclopedia of the Dog Penguin Pup for Pinkerton. Appellant generally complains that all the exhibits were irrelevant, but if relevant, their probative value was substantially outweighed by their prejudicial effect. Id. The underlying purpose can be killing, dominating, or humiliating another. pet.). 1998, no. He knew that Holik had been trying to sell her home. Appellant was known to the manager because of previous contacts. 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. Russo. She had been tied up and strangled, an autopsy report confirmed. If the appellate record reveals criteria reasonably conducive to a risk that the probative value of the tendered evidence is substantially outweighed by unfair prejudice, then the trial court acted irrationally in admitting the evidence and abused its discretion. On October 20, 2003, appellant filed written objections to the remoteness of the testimony of certain designated witnesses citing, Texas Rules of Evidence 401 and 402. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986); Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). He began to pet the animal and the dog responded. 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. He does not challenge the evidence supporting the commission of the murder. In the early morning hours of November 21, 2001, police officers executed a search warrant at appellant's Bastrop home. ref'd). Some 1,200 necrobabes.com related images were recovered.6. 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. See United States v. Hawkins, 59 F.3d 723, 730 (8th Cir.1995); cf. Tex.R. The proponent of evidence usually has the original burden of showing that it is relevant and admissible. He was interviewed during the transport and at the station. ref'd). 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. She was eager to sell her Austin home. There was no objection to this latter statement which was Barajas's opinion, not a present sense impression exception to the hearsay rule. He was a worship leader and music director. Prosecutors said Russo frequented Internet sites that contained stories and photos about asphyxiating women. We find no such motion or pretrial ruling thereon. Dr. Ranazit Chakraborty, Director of the Center for Genome Information of the University of Cincinnati College of Medicine, reviewed the findings by Mills and Nelson. 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. 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. Moreover, a lawful search extends to the entire area in which the object of the search may be found.. Dr. Coons was presented with a hypothetical scenario based on the evidence admitted at trial (except evidence of robbery). Her daughter awakened and screamed. See Murray v. United States, 487 U.S. 533, 541-44, 108 S.Ct. Holik had plans to meet on the weekend with a man who was leaving her house when she talked to Barajas on the telephone. 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. In Hall v. State, 970 S.W.2d 137, 141 (Tex.App.-Amarillo 1998, pet. There is no per se rule by which to determine when evidence is too remote to be admissible. He compared the samples with known DNA samples from the victim, the appellant, the victim's fianc, and a male coworker. at 1147, and held the search constitutional because, unlike Carey, the searching officers were at all times searching for child pornography-the object of the search warrant-and never abandoned the authorized search. 15. Susan Fox reported that appellant said that he had shaved off his goatee and had removed the pin-striping from his van, and that these actions might look suspicious to the police. Details. Donald Ray Holik, 56. In his interview with the police, appellant asked them what motive he would have to kill Holik, a woman that he did not know. Penal Code Ann. Dr. Coons explained that a sexual sadist is sexually stimulated with a fantasy life and becomes obsessive. The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. . They had weekly telephone conferences about their team work concerning IBM employees every Thursday morning about 10:30 a.m., central time (in Austin). The basis of this latter ruling was the state of mind exception to the hearsay rule. See Tex.R.App. Reviewing courts are not fact finders. He stopped opening picture files and obtained a second search warrant that allowed him to specifically search for child pornography. See Tex.R.App. Russo claimed he could. Stars Diane Holik Patrick Russo Lester Holt See production, box office & company info Add to Watchlist Photos Top cast The court stated: [The computer analyst] testified that when he searches a computer, he systematically goes through and opens user-created files regardless of their names. He qualified as an expert witness for the State. 23. at 986-87. Appellant was released after 8:00 a.m. on November 21, 2001. Rector recovered two hours, thirty-six minutes, and fifty-five seconds of Internet history of the necrobabes.com Web site. Fletcher v. State, 852 S.W.2d 271, 277 (Tex.App.-Dallas 1993, pet. Evid. "He's a predator," said prosecutor Robert Smith, "skilled at deceit and cunning and finding watering holes of potential victims. 403. In connection with appellant's argument, we examine other cases. Stay up-to-date with how the law affects your life. View Diane Sternberg's business profile as Assistant Sales Manager, Sales Lead at White House Black Market. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Later, she met her future fiance through a dating service. The victim, an IBM at home supervisor, was found in an upstairs bedroom lying face down. Thus, there was no probative evidence of an intent to rob. Later, Cranford described the incident to a friend, who subsequently called her and asked her to look at a composite drawing in the newspaper and the accompanying story. Brown, 552 F.Supp. ref'd). Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). 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. Keeping in mind the particular facts of the instant case, we find no violation of the Fourth Amendment. 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. Maldonado, 998 S.W.2d at 243. 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. Cranford put her Great Dane dog in the study. 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. Appellant's counsel made general remarks and argued that, after learning of the homicide, many of the witnesses overreacted in describing their encounters or interactions with appellant. Paula L. Feroleto Part 14 - 2nd floor 25 Delaware Avenue Buffalo, NY 14202 Phone: 716-845-9438 Fax: 716-845-5151 Court Clerk: 716-845-9408 IAS Rules. A real estate agent who testified in the case said she was "petrified" when she showed Russo some vacant homes in May 2001. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay. Appellant placed the black-and-white flyer on a table in the foyer. Brewer is not applicable in light of the facts here. 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. 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. The search program permitted a search of the names and contents of the files. The best result we found for your search is Diane L Holik age 50s in Weatherly, PA. 2529, 101 L.Ed.2d 472 (1988); Crosby v. State, 750 S.W.2d 768, 780 (Tex.Crim.App.1988). There are no points of error raised regarding the penalty stage of the trial. The trial court found that the evidence of seven witnesses was not too remote and was relevant. In Rosa v. Commonwealth, 48 Va.App. 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. Also known as Diane T Holik, D T Holik. at 985. Diana Olick CNBC Senior Climate and Real Estate Correspondent Diana Olick is an Emmy Award-winning journalist, currently serving as CNBC's senior climate and real estate correspondent. 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.. This is true even where the element of appropriation occurred after the murder. Season 10 Episode 30 - Videos 2:38 Preview Diane Holik Found Dead After Tornadoes Hit Texas See Tex.R.App. Tex.R. Appellant relies upon his hearsay objections at the hearing to preserve any error, because he made no further objections when Barajas testified before the jury shortly thereafter. United States v. Carey, 172 F.3d 1268, 1271 (10th Cir.1999). She. Only the numbered exhibits were admitted into evidence. 404(b).20 The trial court gave limiting instructions to the jury that are not the basis of the complaints here. Cranford told him that her husband was not home often as he was a busy man, but that they had a realtor. 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. Daniel J . 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. The facts do not show that Detective Rector exceeded the scope of the search warrant of June 18 in violation of the Fourth Amendment. at 1146. 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. 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. Russo, a part-time music minister, pretended he was interested in purchasing. No such necklace was found. The search ceased, and a second warrant was obtained to search for child pornography. Holik's wrist bore indentations showing discernible redness, indicating that her heart was still beating when the wrists were bound.

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