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