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. Barajas related that Holik gave an explanation for why she was late. Penal Code Ann. 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. 103(a)(1). The trial court had not read the written objections and deferred any ruling at that time. The house was listed with a realtor for $435,000, and there was a for sale sign in the front yard. Diane Tasker-Holik. Commonwealth v. Marshall, 287 Pa. 512, 135 A. Appellant could not be excluded from two hairs retrieved from a green towel found in the living room.5. 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. Investigators say the murderer stayed in Diane Holik's home for a bit to "erase" any sign of them being there. 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. In the early morning hours of November 21, 2001, police officers executed a search warrant at appellant's Bastrop home. Appellant's wife, Janet, was a school teacher for the Smithville Independent School District. 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). See Santellan, 939 S.W.2d at 168; Harrell v. State, 884 S.W.2d 154, 161 n. 14 (Tex.Crim.App.1994). Although appellant used the phrase extraneous conduct evidence in the point of error, there was no objection on the basis of Rule 404(b). During the autopsy, police officers collected biological evidence from the victim's left hand. 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. Appellant also said that he stopped at only one house to ask for directions, which he received from an older gray-haired man. A composite drawing of the man was prepared by an artist with directions from one of the homeowners. Diane Holik Profiles | Facebook 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. L.J. Diane Y. Devlin Supreme Court Justice Part 6 - 3rd floor 92 Franklin Street Buffalo, NY 14202 Phone: 716-845-9483 Fax: 716-845-5157 Court Clerk: 716-845-9420 IAS Rules. Find your friends on Facebook. Id. 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. See Murray v. United States, 487 U.S. 533, 541-44, 108 S.Ct. Copyright 2023, Thomson Reuters. 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. 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.) Log In. The court added: This principle applies equally to a search for electronic files. In Rosa v. Commonwealth, 48 Va.App. Alvarado, 912 S.W.2d at 207. As earlier noted in the discussion of the fifth point of error, a general relevancy objection does not preserve an extraneous-offense claim under Rule 404(b) of the Texas Rules of Evidence. 403. 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. 13. 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. ref'd))). The first part of the fifth point of error is overruled. Appellant's DNA could not be excluded from four of nine loci considered by Mills. 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). Some of these exhibits were introduced into evidence. Prosecutors said Russo posed a home buyer to get into Diane Holik's house in November 2001. See Tex.R.App. 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. We must remain cognizant of the fact-finder's role. He gave the name of Jim Taylor. 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. Lang v. State, 698 S.W.2d 735, 736 (Tex.App.-El Paso 1985, no. 2781, 61 L.Ed.2d 560 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003); Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Crim.App.2000). The New Encyclopedia of the Dog Penguin Pup for Pinkerton. She opened the front door for them. See Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App.1996); Cardenas v. State, 115 S.W.3d 54, 62 (Tex.App.-San Antonio 2003, no pet.). (upholding admission under Rule 803(3) of murder victim's statement that she wanted to leave defendant, but felt economically trapped); Norton v. State, 771 S.W.2d 160, 165-66 (Tex.App.-Texarkana 1989, pet. ref'd). Cathy Vance, a forensic analyst with the white collar crime unit in the district attorney's office, analyzed appellant's financial records. He was not permitted entry and rejected statements suggesting that he contact his realtor. 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. Johnson, 23 S.W.3d at 9. People named Diane Holik. All rights reserved. ref'd). 404(b). Holik was engaged to be married and planned to move to Houston where her fianc lived. Appellant does not complain of the admission of all the evidence taken from his computer.
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