Glad he's in prison for life. The 43-year-old worked for IBM as an executive, ultimately settling in Austin in 1996. In Fain v. State, 986 S.W.2d 666, 680 (Tex.App.-Austin 1998, pet. Tex. ref'd), Torres v. State, 794 S.W.2d 596, 599-600 (Tex.App.-Austin 1990, no pet.)). At the hearing, no objections were addressed to the testimony offered. We must remain cognizant of the fact-finder's role. The prosecution called thirteen witnesses who were attempting to sell their homes from May to November 15, 2001, or were realtors. Appellant argues that there were no eyewitnesses to the offense. Tex.R. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). In Cooper v. State, 67 S.W.3d 221 (Tex.Crim.App.2002), an aggravated robbery case, the Court held that the general rule is the theft or attempted theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft for the purposes of proving robbery. Barajas warned Holik that she should not let strangers into her home when she was alone. 404(b). 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. 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. . At least two homeowners testified that the man came to their houses twice on November 15, 2001, in the Great Hills subdivision. In the early morning hours of November 21, 2001, police officers executed a search warrant at appellant's Bastrop home. Seaman: The Dog Who Explored the West. DIANE HOLIK Owner Reviews Write Review There are no reviews yet for this company. A search warrant was issued to enter the defendant's home and seize his computer and related items. ref'd); Miranda v. State, 813 S.W.2d 724, 733, 742 (Tex.App.-San Antonio 1991, pet. Appellant was released after 8:00 a.m. on November 21, 2001. 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. 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. 404(b).20 The trial court gave limiting instructions to the jury that are not the basis of the complaints here. Stay up-to-date with how the law affects your life. Lived In Montgomery NY, Valhalla NY, Boca Raton FL, Wappingers Falls NY. Evid. pet.). Brewer is factually distinguishable from the instant case. In connection with appellant's argument, we examine other cases. See Tex.R.App. Hon. Barajas testified that she warned Holik not to let strangers in her home when she was alone. Rosa, 628 S.E.2d at 95 (quoting Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. L.J. On November 17, 2001, there was a church staff meeting. The trial court submitted to the jury both theories of capital murder alleged in the indictment, that the murder occurred in the course of (1) a robbery or (2) a kidnapping. The Gray court concluded that under the circumstances, it was reasonable under the Fourth Amendment for the special agent, in his routine preliminary file review, to open the JPG file, and to cease the search and obtain another warrant after viewing the nature of the material. ref'd) (finding under Rule 803(3) that the trial court did not err in admitting into evidence the murder victim's prior statement that she was going to fire defendant, an employee); Pena v. State, 864 S.W.2d 147, 149-150 (Tex.App.-Waco 1993, no pet.) Only the numbered exhibits were admitted into evidence. She. Still further, in a murder case, the intention of the victim to go somewhere or to meet someone may be proved by evidence of the victim's out-of-court assertion of intent. We need not reiterate the evidence. Id. ), to support his argument. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App.1995). One of the principles of a factual sufficiency analysis is deference to the findings of the jury. Diane Holik: 5 Fast Facts You Need to Know Patrick Anthony Russo, Diane Holik's Killer: 5 Fast Facts You Need to Know. Holik had plans to meet on the weekend with a man who was leaving her house when she talked to Barajas on the telephone. Delivered every Monday by 10 a.m., New York & New Jersey Energy is your guide to the week's top energy news and policy in Albany and Trenton. We do not reach the second point of error claiming legal insufficiency of the evidence to establish that the murder occurred in the course of a kidnapping. 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. She died on 16 November 2001 in Austin, Texas, USA. "He's a predator," said prosecutor Robert Smith, "skilled at deceit and cunning and finding watering holes of potential victims. 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. She had planned to sell the home, get married and move to Houston. The facts do not show that Detective Rector exceeded the scope of the search warrant of June 18 in violation of the Fourth Amendment. 7. Proximity in time and place may be a factor, but it must be considered along with other facts and circumstances. 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. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App.1999) (quoting Montgomery, 810 S.W.2d at 389). We have the court reporter's affidavit stating that the penalty stage record is available, but that appellant's first appointed appellate counsel did not request the transcriptions of that portion of the record. However, there was no interrogation to establish these facts. He was not permitted entry and rejected statements suggesting that he contact his realtor. Holik, 42, planned to sell the home, get married and move to Houston. 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. The search ceased, and a second warrant was obtained to search for child pornography. 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. This was so because after the accidental discovery of the illegal pornography in the first JPG file, the detective opened subsequent JPG files expecting to find child pornography and not material related to drugs. The testimony presented before the jury showed that Holik planned and had the intent to meet the man who just left the following Saturday. In points three and four, appellant claims that the evidence was factually insufficient to establish the same issues raised in points one and two. She was born in Bay Shore, Long Island on September 10, 1958 to Wilfried and Ingrit (Wauer) Holik. The trial court did not abuse its discretion in admitting evidence of the contents of appellant's computer as contended. The man asked for a floor plan, which Cranford did not have. When both the legal and factual sufficiency of the evidence are challenged, the reviewing court must first review the evidence under the legal sufficiency standard. 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. Appellant's known fingerprints matched the prints on the black-and-white flyer and prints on the flyer box in Tammy Cranford's yard. Some 1,200 necrobabes.com related images were recovered.6. 403. Appellant was ready to submit to the authority of the pastor. Only unfair prejudice as set forth in Rule 403 provides a basis for excluding relevant evidence. See Tex. Barajas related that Holik gave an explanation for why she was late. All these witnesses, except Bob Reynolds, were women. Conner, 67 S.W.3d at 197. 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 resulting exhibits were obtained from an independent source without any tinge of illegality17 and were admissible into evidence. The trial court found that the evidence of seven witnesses was not too remote and was relevant. He qualified as an expert witness for the State. There were no objections based on Rule 404(b) included in the written objections. This is true because a review of the factual sufficiency of the evidence begins with the presumption that the evidence supporting the judgment of conviction is legally sufficient. The books were purchased in memory of Diane T. Holik, our fellow classmate, who we all know now, lost her life tragically on November 16th, 2001. 19.03(a)(2), the legal and factual sufficiency standards apply to both the charged and underlying offenses. He did not resume the search and find the rest of the nude images of children until after a second search warrant had been issued. Approximately twelve realtors testified that in 2001, a man, whom most of these witnesses identified as appellant, had contacted them about a home or homes he needed to see immediately, and who indicated that he was a cash buyer and could afford houses from $200,000 to $700,000. FACTUAL SUFFICIENCY-MURDER IN THE COURSE OF ROBBERY. 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. Barajas related that Holik was excited to be selling her home and was eager to do so.22. Although appellant used the phrase extraneous conduct evidence in the point of error, there was no objection on the basis of Rule 404(b). Rector recovered two hours, thirty-six minutes, and fifty-five seconds of Internet history of the necrobabes.com Web site. This memorial website was created in memory of Diane T Holik, 43, born on September 10, 1958 and passed away on November 16, 2001. The underlying purpose can be killing, dominating, or humiliating another. A trial court's evidentiary ruling on a hearsay objection must be upheld absent an abuse of discretion. In assaying all the evidence under the Jackson standard of review, a reviewing court must consider all evidence, rightly or wrongly admitted, that the trier of fact was permitted to consider. During the autopsy, police officers collected biological evidence from the victim's left hand. Further, he does not challenge the probable cause underlying the search warrant issued June 18, 2003, and under which the computer was seized. He asked about the alarm system. 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. art. In many situations, he wanted to meet the woman realtor alone at the site of the vacant house. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App.2001). 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. All rights reserved. Appellant advances eight points of error. See Tex.R. 23. The court reasoned that the special agent would have been remiss not to search the JPG files merely because such files are generally picture files and he believed that the materials he sought were most likely to be text files. at 1271, the detective began to browse through the file directories in Carey's computer and stumbled across a JPG file18 and opened it. Please reach Diane P Holik at (570) 579-6352. See Results. 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. In Cooper v. State, 67 S.W.3d 221 (Tex.Crim.App.2002), the Court in reaching its decision revisited its earlier opinion in Nelson v. State, 848 S.W.2d 126 (Tex.Crim.App.1992), and McGee v. State, 774 S.W.2d 229, 234 (Tex.Crim.App.1989), and reconciled these holdings. Investigators say the murderer stayed in Diane Holik's home for a bit to "erase" any sign of them being there. Daniel J . 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). While the title appeared suspiciously suggestive and implicitly of a sexual nature, it did not appear to be criminal or of an incriminating character in and of itself. Hon. Brady Mills, the supervising criminalist at the Department of Public Safety (DPS) laboratory in Austin, extracted DNA from a swab of the victim's left hand. Ties That Bind. 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. Appellant was shown to have visited the homes of Thoom Zech and Lisa Faulkner twice on November 15, 2006, as he may have done at the victim's home. 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. In the instant case, appellant challenges only the legal sufficiency of the evidence to establish the underlying offense of robbery. Circumstantial evidence of intent is not required to meet the same rigorous criteria for legal sufficiency as circumstantial proof of other offensive elements. 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. 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. 9. Using this number, the police were able to identify appellant as the man they were seeking. Holik's wrist bore indentations showing discernible redness, indicating that her heart was still beating when the wrists were bound. When offered, appellant's counsel responded: Subject to the previous rulings of the court, your Honor. The rulings were not identified, and the exhibit was admitted into evidence. Evid. Cynthia Barajas, a coworker from California, testified that she contacted Holik by telephone about 12:30 p.m., Austin time, on November 15, 2001. The court added: This principle applies equally to a search for electronic files. 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. The episode covering the Texas Killing is "After the Storm". Several of the Internet pages related to the realtors who testified at trial. at 529. Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App.1996); DeLeon, 77 S.W.3d at 315-16. In Rosa v. Commonwealth, 48 Va.App. This is true even where the element of appropriation occurred after the murder. The statement met all the requisites as described in Brown. The jury as the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given the testimony and may accept or reject all or any of a witness's testimony. On occasion Hebner's wife took care of Holik's dogs. There had been a power struggle between the two at the church. Id. 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. See Camarillo v. State, 82 S.W.3d 529, 537 (Tex.App.-Austin 2002, no. In properly construing the entire Internet history, Rector observed references to necrobabes.com. The plain view doctrine applies only to seizures, not searches.
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