Russo v. State

Decision Date07 June 2007
Docket NumberNo. 03-04-00344-CR.,03-04-00344-CR.
Citation228 S.W.3d 779
PartiesPatrick Anthony RUSSO, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Gary A. Taylor, Law Offices of Gary Taylor, M. Ariel Payan, Austin, for appellant.

M. Scott Taliaferro, Assistant District Atty., Austin, for appellee.

Before Chief Justice LAW, Justices PURYEAR and ONION.*


JOHN F. ONION, JR., Justice (Retired).

Appellant Patrick Anthony Russo appeals his conviction for capital murder. See Tex. Penal Code Ann. § 19.03(a)(2) (West Supp.2006).1 A jury found appellant guilty of capital murder. As a result of the jury's answer at the penalty stage of the trial to the special issue concerning mitigating circumstances, the trial court imposed a life sentence.


Appellant advances eight points of error. In the first and second points, appellant challenges the legal sufficiency of the evidence to establish that the murder was committed in the course of a robbery or in the course of a kidnapping. In points three and four, appellant claims that the evidence was factually insufficient to establish the same issues raised in points one and two. In points five and eight, appellant complains of the trial court's evidentiary rulings in admitting irrelevant, prejudicial, and hearsay evidence. 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.


A violent thunder and rainstorm descended upon Austin in the afternoon of November 15, 2001. In the same general time frame, Diane Holik was murdered by ligature strangulation in her own home at 6313 Pathfinder in the Great Hills subdivision in Austin, where she lived alone. 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.

Holik was a supervisory employee of IBM and worked out of her home. She was in daily and weekly contact with certain IBM coworkers across the country in the same supervisory field. They worked as a team in managing new college "hires" for IBM. Holik was engaged to be married and planned to move to Houston where her fiancé lived. She was eager to sell her Austin home. The house was listed with a realtor for $435,000, and there was a "for sale" sign in the front yard.

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. Knowing that the Austin storm had spawned some tornadoes, Fountain called the Austin Police Department that afternoon asking for a check on Holik.

Austin police officers checked Holik's house about 5:30 p.m. on November 16, 2001. All the doors and windows were locked. Dogs inside the house appeared to have left fecal matter on the carpet, indicating that they had been confined for some time. Holik's realtor and neighbor, Lakki Brown, saw the police officers. She opened the front door for them.

Holik's body was found face down on the floor in an upstairs guest bedroom. The body was fully clothed and there was no evidence of a sexual assault. Holik's neck bore the marks of a ligature, which was never found. Holik's wrist bore indentations showing discernible redness, indicating that her heart was still beating when the wrists were bound. The indentations appeared to have been made by plastic zip ties or flex-cuffs once used by police to bind prisoners' wrists together. No zip ties were found on the body or in the house. When the police officers rolled the body over, a charm fell out of Holik's hair. It was shown at trial that she wore the charm on a necklace. No such necklace was found. No rings were found on the body. Her $17,500 engagement ring was missing. A jewelry box, which contained a substantial amount of jewelry, including some very expensive pieces, was missing from the master bedroom. A spare front door key with a ribbon was missing from the doorknob of a ground floor door.

Dr. Elizabeth Peacock, deputy medical examiner, performed the autopsy and determined the cause of death to be homicide by ligature strangulation. Dr. Peacock estimated that Holik died between 3:00 p.m. on November 15 and 3:00 a.m. on November 16, 2001.

Cynthia Barajas, a coworker from California, testified that she contacted Holik by telephone about 12:30 p.m., Austin time, on November 15, 2001. 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. Holik was excited because she thought she had sold her home. Barajas warned Holik that she should not let strangers into her home when she was alone. During the conversation Holik panicked when she realized that she did not have her expensive engagement ring on her hand. She put the phone down, but later returned and told Barajas that her rings were "back on." The conversation eventually concluded about 1:30 p.m.

Robert Hebner and his wife were neighbors and friends of Holik. On occasion Hebner's wife took care of Holik's dogs. 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. The van was parked in such a manner that Hebner thought that a potential buyer was there. He knew that Holik had been trying to sell her home.

During the course of their investigation, the police learned that, on November 15, 2001, some Great Hills residents, who had for sale signs in the front of their houses, had been approached by a man who claimed to be interested in buying their homes. 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 man gave different names to some of the homeowners. At least two homeowners testified that the man came to their houses twice on November 15, 2001, in the Great Hills subdivision. A composite drawing of the man was prepared by an artist with directions from one of the homeowners. A homeowner from another subdivision saw the drawing in the newspaper and called the police. 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. He returned on November 5, 2001, at the same time. On this latter date, she took note of the license plate number on his van. Using this number, the police were able to identify appellant as the man they were seeking.

Appellant worked at the New Life In Christ Church in Bastrop. He was a worship leader and music director. On November 17, 2001, there was a church staff meeting. According to the pastor, Jim Fox, appellant stated that God had gotten his attention during the November 15 storm, and that it was a determining time in his life. Appellant was ready to submit to the authority of the pastor. There had been a power struggle between the two at the church. Appellant appeared broken and downcast when making his statements.

In the early morning hours of November 21, 2001, police officers executed a search warrant at appellant's Bastrop home. 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. He was interviewed during the transport and at the station. Appellant told the detectives that he became lost during the storm in a residential area of Austin. He said that he did not enter any houses. Appellant also said that he stopped at only one house to ask for directions, which he received from an older gray-haired man. He told the officers that he had a Christian rock band called "Broken Silence," and that on the afternoon of November 15, 2001, he had driven to the KNLE radio station in the northwest section of Austin to discuss a Web site. Appellant claimed that he knocked on the front door but no one at the radio station answered. Appellant stated that the storm began and he left. 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. Appellant was known to the manager because of previous contacts. Priest testified that appellant did not appear at the station on the day and time in question. In his interview with the police, appellant asked them what motive he would have to kill Holik, a woman that he did not know. Appellant was released after 8:00 a.m. on November 21, 2001.

Later the same day, appellant went to the home of his pastor and discussed his conversation with the police. Pastor Fox stated that appellant felt that he was going to be arrested for killing a lady. Appellant said that some jewelry had been taken from the victim. It was later shown that the police did not inform appellant that any jewelry was missing from the Holik home.

Susan Fox, the pastor's wife, testified about the same conversation. 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. 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.

Police officers searched appellant's church office on November 21, 2001. They arrested appellant later that day at his pastor's house, transported him...

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