Donna Marie Pryor v. State ( 2015 )

ACCEPTED 03-13-00347-CR 5313413 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/18/2015 7:42:54 AM 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 The State of Texas AUSTIN, TEXAS 5/18/2015 7:42:54 AM Appellant JEFFREY D. KYLE Clerk v. Donna Marie Pryor Appellee On Appeal from Comal County in Case Number CR2012-208, from the 207th District Court of Comal County The Hon. Jack Robison, Judge Presiding Motion for Rehearing TO THE HONORABLE COURT OF APPEALS: COMES NOW, Donna Marie Pryor, Appellant in the above styled and numbered cause, and respectfully enters this Motion for Rehearing, pursuant to Rule 49.1, Tex.R.App.Pro., and would show the Court that on May 1, 2015, this Court reversed the actions of the trial court and Court of Appeals in an unpublished opinion. See Pryor v. State, No. 03-13-00347-CR (Tex.App. - Austin; May 1, 2015). This motion for rehearing is timely filed if presented or post- marked on or before May 18, 2015. In that regard, Appellee would show the Court that it should grant rehearing and reverse judgment of the trial court for the following reasons: Î The Court minimized or omitted mention of crucial evidence shown in the video recording of the traffic encounter which demonstrated the existence of a fact issue, resulting in an incomplete and inadequate review of the evidence supporting the necessity of submission of the issue of the legality of the traffic stop to the jury pursuant to Article 38.23, C.Cr.P., as requested; and, Ï The Court has failed to conduct a true balancing test with regard to the harm inherent in the recognized error and has, instead, substituted a per se harm standard for those convicted of driving while intoxicated and punished as an habitual offender. Prayer WHEREFORE PREMISES CONSIDERED, Appellant prays this Honorable Court will grant his Motion for Rehearing, reconsider its opinion on original submission and, on rehearing, reverse the judgment of the trial court in this case. 2 Respectfully submitted, ____________________________________ John G. Jasuta Attorney at Law 1801 East 51st Street, Suite 365-474 Austin, Texas 78723 eMail: lawyer1@johngjasuta.com Tel. 512-474-4747 Fax: 512-532-6282 State Bar No. 10592300 ____________________________________ David A. Schulman Attorney at Law 1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 eMail: zdrdavida@davidschulman.com State Bar Card No. 17833400 Attorneys for Donna Marie Pryor 3 Certificate of Compliance and Delivery This is to certify that: (1) this document, created using WordPerfect™ X7 software, contains 361 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 May 18, 2015, a true and correct copy of the above and foregoing “Motion for Rehearing” was transmitted via the eService function on the State’s eFiling portal, to Joshua Presley (presj@co.comal.tx.us) and Clay Hearrell (hearrc@co.comal.tx.us), counsel of record for the State of Texas. ______________________________________ John G. Jasuta 4