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. He insisted that he be shown only vacant houses. Appellant argues that the evidence held appellant up to public ridicule and shame and had little effect upon a fact of consequence. 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. Rector then performed some keyword searches on the hard drive copy using Diane Holik, Pathfinder, and Lakki Brown (Holik's realtor). Rector was able to download these introductory screens, and these exhibits were admitted into evidence. The first point of error is overruled. Investigators say Tony Russo targeted expensive homes and pretended to be a home buyer to rob the victims. Holik's house had one in her front yard, too. The basis of this latter ruling was the state of mind exception to the hearsay rule. Russo claimed he could afford to buy the $450,000 house even though he had less than $2,000 in his bank account. At some point, Rector was able to parse the Internet history relating to "Necrobabes.com" and determine the dates and times on which the computer had accessed the "Necrobabes.com" Web site on the Internet. 15. On October 29, 2003, during a separate pretrial hearing, the written objections were mentioned. 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. Penal Code Ann. The person will play out the fantasies, searching out potential victims. "Tony Russo" whose real name is Patrick Anthony Russo has been confirmed that he brutally murdered Diane Holik at her Home. The officers obtained a search warrant to search the defendant's hard drive for any images of child pornography. Cranford left the room and appellant stayed behind. He makes no claim that the evidence was inadmissible because it revealed extrinsic acts or misconduct. The prosecution said of Patrick, Hes a predator, skilled at deceit and cunning and finding watering holes of potential victims. As per prison records, he remains incarcerated at the Thomas Goree Unit in Huntsville, Texas. Although the man had given different names to homeowners, police produced a composite drawing and published it in a local newspaper. Appellant overlooks the fact that at no time did he advance any relevancy objection at trial as required. 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. People may receive compensation for some links to products and services on this website. 03-04-00344-CR. or. 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). 9. Dogs inside the house appeared to have left fecal matter on the carpet, indicating that they had been confined for some time. No. Furthermore, a hair sample taken from a towel found at the scene and swabs from Dianes hand matched Patricks DNA. Appellant argues that there were no eyewitnesses to the offense. He does not challenge the evidence supporting the commission of the murder. Patrick Russo, Texas (47 matches): Phone Number, Email, Address - Spokeo 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. 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. If you know some information, please comment below. Johnson, 23 S.W.3d at 9. "Tony Russo" whose real name is Patrick Anthony Russo has been confirmed that he brutally murdered Diane Holik at her Home. One of the principles of a factual sufficiency analysis is deference to the findings of the jury. Do Not Sell or Share My Personal Information. See Camarillo v. State, 82 S.W.3d 529, 537 (Tex.App.-Austin 2002, no. 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. For the same reason we did not reach the second point of error, we do not reach the fourth point claiming factual insufficiency to show murder in the course of a kidnapping. ref'd). 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. Austin police officers checked Holik's house about 5:30 p.m. on November 16, 2001. Evid. Would love your thoughts, please comment. See Rabbani v. State, 847 S.W.2d 555, 560 (Tex.Crim.App.1992); Anderson v. State, 15 S.W.3d 177, 183 (Tex.App.-Texarkana 2000, no pet.). Appellant told her that he would pay cash, that he had just sold a ranch, and that he needed to buy quickly. This exhibit is not before us for consideration of its relevancy. It was later shown that the police did not inform appellant that any jewelry was missing from the Holik home. 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. Do you value our journalism? This information was given to the police after November 15, 2001. But, when the skies cleared and Diane Holik missed an important meeting, friends and family became concerned. Moreover, there is no Fourth Amendment protection against the disclosure of subscriber information by Internet service providers. Thomas K. Clancy, The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective and a Primer. But the married, part-time worship leader had just $1,796.19 in the bankat the time of Holiks murder. 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. This weekend, Holiks story will be highlighted on an episode of Dateline NBC. He left the black-and-white flyer behind. Armed with yet another search warrant, granted on November 18, 2003, Rector did a more complete search of the computer for "information pertaining to death by asphyxiation." Russo was once arrested for burglary and the kidnapping of a woman. ; Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). 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. 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. Sept. 24, 2016 Best of NBC News Play All NBC News Channel Three climbers killed in. 103(a)(1). Tune in this Friday, September 23, at 9/8 p.m. Central on NBC. 01:57 Dateline After the Storm Part 10 The suspect is charged with murder, six months after Diane was killed. Brewer is factually distinguishable from the instant case. Dr. Elizabeth Peacock, deputy medical examiner, performed the autopsy and determined the cause of death to be homicide by ligature strangulation. The doctor testified that in his opinion, the hypothetical scenario strongly suggests that the defendant in the scenario sought sexual gratification through ligature strangulation. A spare front door key with a ribbon was missing from the doorknob of a ground floor door. See Tex.R.App. 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 The index.dat files reflect the computer's Internet history but do not contain any Web pages and images. Lives in Pacific Grove, California. All these witnesses, except Bob Reynolds, were women. In re Winship, 397 U.S. 358, 364, 90 S.Ct. After a keyword search of certain terms proved negative, Id. The point of error is multifarious and is not easy to decipher. In the instant case, appellant challenges only the legal sufficiency of the evidence to establish the underlying offense of robbery. 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. 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. He asked about the alarm system. See United States v. Mitchell, 145 F.3d 572, 576 (3d Cir.1998); accord United States v. Ruiz, 249 F.3d 643, 646 (7th Cir.2001). Tue Jun 27, 2017 at 10:11pm ET. In his written pretrial objections, appellant did not address the witnesses' testimony about their encounters with appellant or his conduct, but orally urged that their individual testimony about their various emotions, feelings, or actions during or after the encounters, even if relevant, were inadmissible because the probative value was substantially outweighed by the danger of unfair prejudice. He was indicted in May 2002. More than 136 such documents in the temporary Internet files folder were located. ref'd))). Another search warrant was issued on November 18, 2003, expressly authorizing the search of the necrobabes.com computer file. There had been a power struggle between the two at the church. Holik was a supervisory employee of IBM and worked out of her home. Appellant relies chiefly upon United States v. Carey, 172 F.3d 1268 (10th Cir.1999), perhaps the preeminent case on computer searches at the time of the trial. Conner, 67 S.W.3d at 197; Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995). He claimed that he was elsewhere at the time of the murder, but cellphone records placed him in the general area around Dianes neighborhood. Id. He qualified as an expert witness for the State. Guevara, 152 S.W.3d at 49. ref'd). P. 34.6. It was an awkward situation. Dr. Coons was presented with a hypothetical scenario based on the evidence admitted at trial (except evidence of robbery). So, if youre wondering what happened in Dianes case, weve got you covered. The realtors' telephone numbers appeared on appellant's phone bill. Barnes v. State, 62 S.W.3d 288, 297 (Tex.App.-Austin 2001, pet. Appellant agreed to go with the officers to the Austin police station, telling his wife that the inquiry possibly had something to do with his parole status. 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. What happened, according to court documents: According to witnesses, Patrick Anthony Russo, 40, claimed he could pay cash for the home. We disagree. No such necklace was found. No rings were found on the body. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. This makes sense, as the user is free to name a file anything. A Storm Reveals A Murder 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. Brown, 552 F.Supp. Appellant was released after 8:00 a.m. on November 21, 2001. patrick anthony russo dateline All rights reserved. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Diane Holik was excited to enter a new phase in her life after getting engaged. 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. He looked at her and his demeanor seemed to change. Powered by WordPress.com VIP. The scene covering the Texas Killing is After the Storm. Pastor Jim Fox later said that Russo came by his house and discussed the interrogation--saying he was likely going to be arrested for murder and theft of jewelry. That search was not abandoned in favor of an investigation into necrobabes.com.. Appellant's telephone number was given and identified. Patrick Anthony RUSSO, Appellant, v. The STATE of Texas, Appellee. We have no more Information about his Father; we will try to collect information and update soon. According to CNET, ligature marks were present on the body, though the ligature used was not found at that time. She was going to move from Austin, Texas, a place she called home for many years. 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. See Tex.R.App. 9, 4-5, 75, 81 [pretrial]; R. Vol. If appellant preserved error for review, it is based on these pretrial rulings under the unique circumstances described. 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 further complains that the testimony provided by Tammy Tayman and Holly Dittart are based on contact with appellant, alleged to have occurred in August 2001. 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. 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. Id. patrick russo: 'dateline. at 985. Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex.Crim.App.2000). Appellant placed the black-and-white flyer on a table in the foyer. 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. Appellant Patrick Anthony Russo appeals his conviction for capital murder. 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. Barajas, from Los Angeles, California, testified before the jury that she was an IBM coworker with Diane Holik. FBI agents executed a search warrant on the defendant's home and seized four computers in connection with an investigation of unauthorized computer intrusions. 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. Five of these witnesses were Great Hills residents who were approached at their homes on the day of the murder. Id. The 42-year-old IBM supervisor was in the midst of selling her large upscale home in Austin, Texas when a man posing as a potential buyer strangled her to death in her house. 403. ", Rector did not know what that Web site was. Rule 404(b) provides:(b)Other Crimes, Wrongs or Acts. (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. Dateline NBC S25. 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. Go ahead and find out with this little quiz https://t.co/Lkr0bKeh6f, Dateline NBC (@DatelineNBC) September 23, 2016. Appellant asserts that none of the missing property was found in his possession or ever recovered, despite searches of his home and church office, the use of metal detectors in his yard, and a survey of pawn shops. Evid. The indentations appeared to have been made by plastic zip ties or flex-cuffs once used by police to bind prisoners' wrists together. Despite the manner in which Barajas's testimony about Holik's plans was presented at the separate hearing, the prosecution made clear that it was offering the testimony under the state of mind exception to the hearsay rule. 403. Love #Dateline? 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. Appellant's remoteness argument is broad based. The underlying purpose can be killing, dominating, or humiliating another. He returned on November 5, 2001, at the same time. 13. Her $17,500 engagement ring was missing. Russo, a part-time music minister, pretended he was interested in purchasing Holik's home, and claimed that he could buy the $450,000 house in cash, even though his bank account was later found. 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. The authorities created a composite sketch and made it public. 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. 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. 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. Log in or sign up for Facebook to connect with friends, family and people you know. Evid. Appellant only worked there about thirty hours a week, but appellant voluntarily quit that job. Also, we have no information about his son and daughter. 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. A composite drawing of the man was prepared by an artist with directions from one of the homeowners. The van was parked in such a manner that Hebner thought that a potential buyer was there. The 43-year-old worked for IBM as an executive, ultimately settling in Austin in 1996. Moreover, a hair test has taken from a towel, and swabs from Dianes hand matched Tonys DNA.Finally, Tony has asserted as a killer and sent him for a lifetime in jail. Some DNA evidence found on a green towel in Holik's home also pointed to Russo. Contact us. Patrick Anthony. The license plate trail led to Russo, who worked as a worship leader and music director at New Life In Christ Church in Bastrop, Texas, a short drive from Austin. Evid. Police raided Russo's home in the early morning hours of November 21, 2001. 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. Includes . See Tex.R. When: Texas Court of Appeals rules on June 7. If this was an objection, it was not included in the written objections. For a more liberal view of the requirement of contemporaneousness, see United States v. Parker, 936 F.2d 950, 954 (7th Cir.1991); United States v. Blakey, 607 F.2d 779, 784-86 (7th Cir.1979). Patrick Anthony Russo is serving a life sentence for the 2001 murder of 42-year-old Diane Holik. at 986-87. We conclude that the trial court did not abuse its discretion in admitting the exhibits as relevant evidence, or in finding through the balancing process that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Cranford put her Great Dane dog in the study. See United States v. Hawkins, 59 F.3d 723, 730 (8th Cir.1995); cf. Evid. 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. One resident, Melody Blount, was convinced that Russo was the killer once she heard about Holiks murder. While the authorities were canvassing in the neighborhood, they came across some peculiar information from many homeowners who had their property on sale. Appellant does not brief or present argument or authority in support of any contention that the allegations of murder are not supported by the evidence. Click here to read about the details of Russos search warrant. 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.). Cranford went to the nursery to calm the child. Though the death case murder is still a mystery. 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. We conclude that the trial court did not abuse its discretion in admitting the exhibits as relevant evidence, or in finding through the balancing process that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. He then inquired whether there was a husband or boyfriend with whom he could deal. At one point, Cranford's son awakened and she moved him to the family room. 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. With that, tips started pouring in. What stood out about the stranger, according to neighbors, was the eerie and creepy vibe that he gave them while talking about the house. The sentence was returned Friday. 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. Appellant's DNA could not be excluded from four of nine loci considered by Mills. Fletcher v. State, 852 S.W.2d 271, 277 (Tex.App.-Dallas 1993, pet. When Holik was killed, I called police and said Its him., Diane Holik: 5 Fast Facts You Need to Know, Diane Holik, Patrick Anthony Russo: Dateline NBCErotic Horror Fantasy Killer Was Texas Church Leader https://t.co/QBOl3Nieog, Brightly (@Brightly5) September 23, 2016. 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. Patrick Anthony. Questions, as here, of when testimony becomes too remote and, therefore, irrelevant are left to the sole discretion of the trial court. 10. They then released him. art. 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. About 30 percent of Darringtons roughly 1,800 total inmates are serving sentences of 40 or more years, state data shows. RUSSO v. STATE (2007) | FindLaw All of the residents who this man approached claimed that he seemed strange. The action you just performed triggered the security solution. 193, 226 n. 100 (Fall 2005) (citing in the following order: Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001) (noting that computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person-the system operator); United States v. Cox, 190 F.Supp.2d 330, 332 (N.D.N.Y.2002) (holding that there is no reasonable expectation of privacy in subscriber information provided to Internet service provider); United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D.Kan.2000) (no reasonable expectation of privacy in subscriber information); United States v. Hambrick, 55 F.Supp.2d 504, 507-09 (W.D.Va.1999) (individual has no reasonable expectation of privacy in his name, address, social security number, credit card number, screen name, and proof of Internet connection obtained from Internet service provider); State v. Evers, 175 N.J. 355, 815 A.2d 432, 440-41 (N.J.2003) (person had no standing to challenge warrant that obtained his subscriber information from Internet service provider); Hause v. Commonwealth, 83 S.W.3d 1, 10-12 (Ky.App.2001) (no standing for subscriber to challenge warrant that obtained his name, address, and screen name from Internet service provider); United States v. Ohnesorge, 60 M.J. 946, 949-50 (U.S. Navy-Marine Ct.Crim.App.2005) (no reasonable expectation of privacy in subscriber information given to Internet service provider)). 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. The evidence indicates that Holik's dogs had been confined in the house for some time. 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. [Featured Image by Jason Hunter, Watertown Daily Times, Pool/AP Images] Advertisement Latest #metoo News and Updates He began to pet the animal and the dog responded. 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. ref'd)). P. 38.1; Hankins v. State, 132 S.W.3d 380, 385 (Tex.Crim.App.2004). See Tex.R.App. Appellant advances eight points of error. Remember that, Austin? His search was broadened to consider the Internet history, searching for documents relating to real estate, including Web pages. Excerpts from the Texas Court of Appeals' opinion dealing with the search warrant: He was able to view information about the payment of fees and the purchase of a membership on the Web site. 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. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App.2003); Maldonado, 998 S.W.2d at 243. Cranford left and let the dog out of the study because she was uncomfortable.