Donna Marie Pryor v. State

• Court: Court of Appeals of Texas
• Decided: March 24, 2015
• Docket: 03-13-00347-CR
• Status: Published

Opinion

ACCEPTED 03-13-00347-CR 4626090 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/24/2015 4:10:57 PM JEFFREY D. KYLE No. 03-13-00347-CR CLERK

IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS, AT AUSTIN FILED IN 3rd COURT OF APPEALS Donna Marie Pryor AUSTIN, TEXAS 3/24/2015 4:10:57 PM Appellant JEFFREY D. KYLE Clerk v. The State of Texas Appellee On Appeal from the 207th District Court of Comal County in Cause No. CR2012-208, the Honorable Jack Robison, Judge Presiding

Motion for the Court to Take Judicial Notice

TO THE HONORABLE THIRD COURT OF APPEALS:

COMES NOW, Donna Marie Pryor, Appellant, by and through

John G. Jasuta and David A. Schulman, her undersigned

attorneys, and respectfully files this “Motion for the Court to Take

Judicial Notice,” and in support of such Motion would show the

Court:

I

Appellant was convicted in the 207th District Court of Comal

County, of the offense of Driving While Intoxicated, in Cause No.

CR2012-208, styled The State of Texas v. Donna Marie Pryor.

Punishment was assessed by the jury at confinement for ninety-

nine (99) years. Notice of Appeal was timely filed and the appeal properly prosecuted. Submission on oral argument is scheduled

for Wednesday, March 25, 2015.

II

On February 24, 2015, a Supplemental Clerk’s Record was

filed with the Clerk of the Court. That Supplemental Record

contains a copy of the “dashcam” video which will be of great

benefit to the Court when deciding the issues in this case.

III

A. Authority to Take Judicial Notice

Rule 201, Tex.R. Evid., permits the Court to take judicial

notice of any fact which is either generally known within the

territorial jurisdiction of the trial court or “capable of accurate and

ready determination by resort to sources whose accuracy cannot

reasonably be questioned.” See Estrada v. State, 313 S.W.3d

274, 287 (Tex.Cr.App. 2010). A request to take judicial notice may

be made, and an appellate court may take judicial notice for the

first time on appeal. Watkins v. State, 245 S.W.3d 444, 455-456

(Tex.Cr.App. 2008); see, also, Ex parte Gill, 413 S.W.3d 425

(Tex.Cr.App. 2013), citing Morris v. State, 361 S.W.3d 649,

669-670 (Tex.Cr.App.2011)(FN 117);Volasen v. State, 227 S.W.3d

2 77, 80 (Tex.Cr.App. 2007); and Rhodes v. State, 240 S.W.3d 882,

886(Tex.Cr.App. 2007)(FN 9).

B. Reason for Taking Judicial Notice

Appellant would show the Court that the information of which

judicial notice is sought is not subject to reasonable dispute in

that it is capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned.

Appellant would additionally show the Court that its consideration

of the issues and the evidence introduced would be greatly

enhanced by the taking of judicial notice of the exhibit attached

hereto.

The exhibit is a copyrighted presentation (“Google Earth”) of

an aerial photograph taken by a satellite belonging to the United

State’s government,1 showing the geographic area of the video,

including the intersection of United States Highway 281 and

Texas Highway 46, as of April 21, 2012. This is the intersection

through which Appellant travels while being portrayed on the

video. The undersigned suggest that, because the video contained

1 Movants have been informed by employees of the Texas Department of Transportation, and believe, and on that basis allege, that the imagery in question is part of satellite photography taken for the United States Geological Survey.

3 in the supplemental Clerk's Record is viewed along the horizontal

line, being able to view the same landscape from above would be

of benefit to the Members of the Court, as it will provide the ability

to better gauge the distances involved, which distances are at the

heart of the first issue this case.

Prayer

WHEREFORE PREMISES CONSIDERED, Appellant prays this

Honorable Court to grant this “Motion for the Court to Take

Judicial Notice,” and take judicial notice of the contents of the

satellite imagery attached hereto.

Respectfully submitted,

______________________________ ______________________________ John G. Jasuta David A. Schulman Attorney at Law Attorney at Law Post Office Box 783 Post Office Box 783 Austin, Texas 78767-0783 Austin, Texas 78767-0783 eMail: lawyer1@johngjasuta.com zdrdavida@davidschulman.com Tel. 512-474-4747 Tel. 512-474-4747 Fax: 512-532-6282 Fax: 512-532-6282 State Bar No. 10592300 State Bar Card No. 17833400

Attorneys for Donna Marie Pryor

4 Certificate of Compliance and Delivery

This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 671 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

March 24, 2015, a true and correct copy of the above and

foregoing “Motion for the Court to Take Judicial Notice” was

transmitted via the eService function on the State’s eFiling portal,

to Joshua Presley (presj@co.comal.tx.us), counsel of record for the

State of Texas

______________________________________ John G. Jasuta

5 Satellite Imagery Attached as Exhibit