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Date: 07-13-2021
Case Style:
Henry Curtis Mayo v. The State of Texas
Case Number: 02-19-00404-CR
Judge: Dabney Bassel
Court: Court of Appeals
Second Appellate District of Texas
at Fort Worth
Plaintiff's Attorney: Thomas A. Mitchell
Defendant's Attorney:
Description:
Fort Worth, Texas - Criminal defense attorney represented Defendant charged with Evading Arrest.
Mayo led law-enforcement officers on a lengthy high-speed chase in February
2019. The chase occurred just past midnight and extended across multiple counties,
attracting officers from at least three different law-enforcement agencies in a caravan
behind Mayo’s newly purchased Crown Victoria.
1
We reorder Mayo’s points to mirror the logical and chronological sequence of
the trial.3
A. The Chase
The events began when a concerned citizen, Alex Boterf, called the Willow
Park Police Department around midnight to report Mayo’s erratic driving.
2 Boterf
later testified that Mayo was driving in the left lane of Interstate 20 but would “choose
to get over a lane or two just because there[ was] a car there,” then “get up five, ten
feet from the back of the next car’s bumper” before “swing[ing] past them” and
“whip[ping] around them at the last second.” By Boterf’s estimate, Mayo repeated his
“whip[ping]” maneuver at least “eight or nine” times. Boterf followed Mayo from a
distance until law enforcement arrived.
Willow Park Police Officer Ryan Malwitz responded to the call and identified
Mayo’s vehicle from Boterf’s description. After clocking Mayo’s speed at 92 mph,
3
Officer Malwitz attempted to pull Mayo over. But rather than stopping his vehicle,
Mayo accelerated to 107 mph and turned his lights off, causing Officer Malwitz to
lose sight of Mayo’s vehicle in the fog. The officer reported these events to the police
dispatcher who in turn notified the Parker County Sheriff’s Office.
Almost immediately, Parker County Deputy Colby Scudder spotted Mayo’s
vehicle on Interstate 20. Or, rather, he encountered Mayo’s vehicle—while Deputy
2
Before calling the Willow Park Police Department, Boterf attempted to
contact two other police departments to report Mayo’s erratic driving.
3
The speed limit on Interstate 20 was 70 mph. In addition to speeding, Officer
Malwitz noted that Mayo’s temporary rear license plate was folded so that the officer
could not read the numbers.4
Scudder was driving in the right lane, Mayo came up behind him and passed him on
the right by driving on the shoulder of the highway without his headlights activated.
Deputy Scudder activated his overhead lights in an attempt to pull Mayo over. But as
he did with Officer Malwitz, Mayo did not pull over; instead, Mayo tailgated another
right-lane vehicle until the driver hit the brakes, forcing Mayo to slam on his brakes as
well. Deputy Scudder watched as the tailgated vehicle swerved off the road, traveling
across a right-side bar ditch and up an embankment onto the parallel service road.
Mayo similarly lost control of his car; he swerved to the left of the tailgated vehicle
then spun across the highway into the right-side bar ditch, coming to a stop, facing in
the opposite direction. Deputy Scudder pulled over and notified the police dispatcher
that Mayo had “crashed out,” but before the deputy could exit his vehicle, Mayo
returned to the roadway and began accelerating again.
In the near-half-hour that followed, Mayo led Deputy Scudder on a high-speed
chase for approximately forty-eight miles. As the night progressed, more lawenforcement officers and agencies became involved; Parker County Deputy Jeremy
Tharp joined the caravan of police cars trailing Mayo,
4 as did a game warden, a
Weatherford Police Department officer, and multiple officers from the Department
of Public Safety. Throughout the chase, Mayo continued to closely tailgate other
vehicles in an aggressive, threatening manner, while also swerving around, in front of,
4
A trainee accompanied Deputy Tharp and drove his police car during the
chase.5
between, and “at” eighteen-wheelers on the highway. Deputy Scudder and Deputy
Tharp later described how Mayo would “be driving in the left lane[ and] as soon as he
would be coming up on traffic, he would s[w]erve into their lane” and “get right on
[th]em” before “cut[ting] straight back into the left lane” at the last minute; “it
appeared [Mayo] was trying to make them wreck.”
Finally, after Mayo successfully dodged two sets of spike strips laid on the
highway to flatten his tires, he hit a third set of spike strips, causing one of his tires to
smoke. He slowed to a halt. The trailing police caravan encircled Mayo, but before
anyone could approach his vehicle, Mayo got out and began walking toward the
officers with a cell phone in his hand. Indeed, Mayo remained on the phone
throughout his arrest and repeatedly stated—presumably to his father, with whom
Mayo was on the phone—that the police were trying to shoot him.
B. The Trial
Mayo was indicted for third-degree-felony evading arrest or detention with a
vehicle, and the State sought a finding that Mayo had used his vehicle as a deadly
weapon in the commission of the offense.
5 See Tex. Code Crim. Proc. Ann. art.
42A.054(b), (c); Tex. Penal Code Ann. §§ 1.07(a)(17), 38.04(b)(2). Although Mayo
admitted speeding and leading the police on a chase, he pleaded not guilty and
requested a jury trial. Mayo argued that he had been evading the police out of
5
Specifically, Mayo’s indictment alleged that he evaded arrest or detention by
Deputy Scudder.6
necessity due to a reasonable fear for his life, and he denied using his vehicle as a
deadly weapon.
At trial, the State called Boterf, Officer Malwitz, Deputy Scudder, and Deputy
Tharp, who all testified regarding Mayo’s manner of driving. Deputies Scudder and
Tharp detailed the chase and Mayo’s evasion.
To corroborate this testimony and display the events of the night, the State
offered (1) a copy of Deputy Scudder’s body-camera footage taken while he was
chasing Mayo, (2) a copy of the first two minutes of Deputy Scudder’s dash-camera
video footage from the chase,
6 and (3) a copy of Deputy Tharp’s dash-camera video
from the chase.
7 The three videos depicted different portions of the chase from
various vantage points in the police caravan, with many overlapping elements. As
relevant to this appeal, Deputy Scudder’s body-camera footage captured the full
twenty-eight-minute chase, but the video was taken from Deputy Scudder’s lap—
without a view out the front window. The body-camera video thus primarily
contained the police-radio conversations between Deputy Scudder, Deputy Tharp,
and the police dispatcher during the chase. Deputy Scudder’s dash camera only
6
Deputy Scudder explained that his dash-camera video “use[d] Bluetooth and
WiFi to transmit video to [his] laptop[]” where he could record and submit the video.
“[I]f [he] los[t] Bluetooth or WiFi, that los[t] the connection, obviously, [between] the
camera and the laptop,” preventing a complete recording. Consequently, less than
two minutes of the chase were recorded on Deputy Scudder’s dash-camera video.
7
The State also offered an audio recording of Boterf’s phone call to the Willow
Park Police Department.7
recorded the first two minutes of this twenty-eight-minute chase, but it provided a
brief dashboard view of Mayo’s driving while also duplicating two minutes of the
police-radio conversations. The third video, Deputy Tharp’s dash-camera video,
contained approximately twenty-two minutes of the twenty-eight-minute chase;
8 it
provided a dashboard view of the chase from Deputy Tharp’s location several cars
behind Deputy Scudder in the caravan, and it duplicated twenty-two minutes of the
police-radio conversations contained in Deputy Scudder’s body-camera footage.
Mayo called only one witness in his defense: himself. Mayo told the jury that,
before Officer Malwitz arrived, the other vehicles on the highway had “boxed [him]
in,” making him concerned that the other motorists might shoot him.
9 Then when
Officer Malwitz attempted to pull Mayo over, Mayo claimed he motioned for the
officer to follow him to a well-lit area. Mayo explained that because the highway was
dark and the other motorists posed a shooting risk, he had not stopped because he
was “looking out for [his] and [the officer’s] safety.” But while he was still looking for
a well-lit area, Mayo claimed Officer Malwitz “zoomed up on [him]” in a manner that
reminded Mayo of “chasing that [he] done seen on TV,” leading him to believe that
8
Deputy Tharp’s dash-camera video began approximately six minutes into
Deputy Scudder’s body-camera footage.
9
Mayo testified that this concern for his safety was the reason why he drove in
the left lane: “Because if somebody was going to shoot off in [his] car, . . . if [he] was
in the right lane, [another motorist] could easily drive up on the driver’s side of [his]
door, so [he] made sure [his] driver[’s] door stayed in the left lane.”8
the officer “wanted to pit maneuver [him]” or “skid [him] out.”10 Mayo thus asserted
that he fled the police “[b]ecause [he] was scared” he “would get shot.” He further
testified that he was on the phone with his father and grandmother “[p]ractically the
entire time” and was telling them his fears that the other motorists were “fixing to
shoot [him].”
On cross examination, Mayo admitted that, at the time of the chase, he was on
felony probation for being a felon in possession of a firearm. He denied knowing,
however, that there was a felony warrant for his arrest for carjacking he was alleged to
have committed in Mississippi. Mayo similarly denied knowledge of a prior deferred
adjudication he served for fleeing or eluding law enforcement, and he denied
knowledge of a prior conviction for possession of cocaine. However, Mayo conceded
that the State’s documentation showed that the judgments had been entered against a
person with his name, social-security number, and birthdate.
11
The jury found Mayo guilty of evading arrest or detention with a vehicle and
found the deadly-weapon allegation to be true. See Tex. Code Crim. Proc. Ann. art.
10When asked to explain to the jury what a “pit maneuver” was, Mayo testified
that, on “TV shows like World’s Wildest Police Videos . . . police call it [a] pit
maneuver when they try to stop a suspect . . . at a high rate of speed.”
11When confronted with his prior convictions, Mayo initially stated that he was
“unable to think about incidents” or to “think back that far.” Then, when pressed, he
denied any knowledge of the convictions and referenced his wallet having been stolen,
implying that he was a victim of identity fraud.9
42A.054(b), (c); Tex. Penal Code Ann. § 1.07(a)(17). The trial court heard brief
punishment evidence and sentenced Mayo to eight years’ confinement.12
II. DISCUSSION
Mayo challenges (1) the trial court’s admission of allegedly speculative
testimony from Deputy Scudder and of hearsay statements in the deputy’s bodycamera footage, and (2) the sufficiency of the evidence to support the jury finding that
Mayo used his vehicle as a deadly weapon. We reject both arguments.
A. Evidentiary Objections
First, Mayo claims the trial court erred by admitting two portions of evidence.
1. Applicable Law
“It is well established that the improper admission of evidence does not
constitute reversible error if the same facts are shown by other evidence which is not
challenged.” Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (quoting
Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. [Panel Op.] 1978)). This rule
renders the admission of evidence harmless when a defendant fails to object at trial to
cumulative evidence of the same fact, see id., or when a defendant fails to challenge
other, cumulative evidence of the same fact on appeal. See Estrada v. State, 313 S.W.3d
274, 302 n.29 (Tex. Crim. App. 2010) (citing Leday and applying rule where appellate
challenge to other, cumulative evidence showing the same fact was overruled);
12Although the State had notified Mayo that it intended to enhance his
punishment based on his prior Mississippi felony conviction, it did not do so. See
Tex. Penal Code Ann. § 12.42(a).10
Redmond v. State, No. 02-19-00381-CR, 2021 WL 1134410, at *11–12 (Tex. App.—
Fort Worth Mar. 25, 2021, pet. filed) (citing Leday and applying rule where other,
cumulative evidence was not challenged on appeal); Qualls v. State, 547 S.W.3d 663,
681–82 (Tex. App.—Fort Worth 2018, pet. ref’d) (citing Leday and applying rule
where appellate challenge to other, cumulative evidence was overruled); Honish v. State,
No. 02-11-00407-CR, 2013 WL 1759903, at *4 (Tex. App.—Fort Worth Apr. 25,
2013, pet. ref’d) (mem. op., not designated for publication) (citing Leday and applying
rule where other, cumulative evidence was not challenged on appeal).
2. Deputy Scudder’s Testimony
Mayo contends that the trial court erred by allowing Deputy Scudder to testify
that he believed Mayo’s weaving maneuvers were an attempt “to get other vehicles to
crash.” Mayo objected to this testimony as speculative at trial and he lodges the same
complaint on appeal.
13 Assuming without deciding that this testimony was
speculative, the same speculation came in through other evidence that Mayo does not
challenge on appeal; namely, Deputy Tharp’s dash-camera video.
In Deputy Tharp’s dash-camera video, Deputy Scudder can be heard through
the police radio stating that Mayo was “turning his headlights on and off and swerving
13Mayo alternatively challenges this testimony as an improper expert opinion.
However, Deputy Scudder was not proffered as an expert, and Mayo did not object to
Deputy Scudder’s challenged statement as improper expert testimony. See Tex. R.
App. P. 33.1(a)(1).11
all across traffic trying to cause other accidents.” 14 [Emphasis added.] And again, later in
the chase, Deputy Scudder can be heard on the police radio observing, “Every time
there’s a vehicle in the right lane, [Mayo] gets in the right lane and heads that up and
then swerves off really quickly; it’s like he’s trying to cause an accident.” [Emphasis added.]
Deputy Scudder’s challenged trial testimony was thus a repetition of the statements he
made through the police radio on the night of the chase. Because the dash-camera
video containing these statements is not challenged on appeal, any error in the
admission of Deputy Scudder’s speculative testimony was harmless. See Estrada, 313
S.W.3d at 302 n.29; Redmond, 2021 WL 1134410, at *11–12.
3. Statements in Deputy Scudder’s Body-Camera Footage
Next, Mayo challenges the statements captured on Deputy Scudder’s bodycamera footage. Mayo contends that Deputy Scudder’s “narrative recorded on his
body cam[era]” during the chase—i.e., Deputy Scudder’s descriptions of Mayo’s
behavior, which the deputy reported over the police radio—constituted “inadmissible
hearsay” erroneously admitted at trial. Although the precise scope of Mayo’s
14At trial, Mayo’s own counsel elicited testimony from Deputy Tharp
confirming that the chatter heard on his dash-camera video reflected conversations
between Deputy Tharp, Deputy Scudder, other Parker County deputies involved in
the chase, and dispatch.12
challenge is ambiguous, he appears to target nine specific statements in the deputy’s
body-camera footage as objectionable hearsay.
15
But the nine challenged statements were not unique to Deputy Scudder’s bodycamera footage. Many of these statements were recorded by Deputy Scudder’s dash
camera or transmitted over the police radio and recorded by Deputy Tharp’s dash
camera. And even those statements that were not captured verbatim on a dashcamera video were repeated and recorded later in the chase and repeated again at trial
in substantially similar form.
• First, Mayo challenges Deputy Scudder’s observation “that it looks like [Mayo]
almost struck a vehicle and ran him off the road.” This statement occurred
during the first two minutes of Deputy Scudder’s body-camera footage and was
15The following paragraph of Mayo’s brief highlights the allegedly objectionable
hearsay in Deputy Scudder’s body-camera footage:
[(1)] At about 1:15 into State’s exhibit 3, Deputy Scudder says that it
looks like Appellant almost struck a vehicle and ran him off the road.
[(2)] He also says that his speed has gone up to about 90 mph.
[(3)] Around 1:50, the narrator says that Appellant’s speed has exceeded
a hundred mph and [(4)] that he has “killed his headlights and taillights
again.” [(5)] After 4:00, Appellant’s speed is announced at 108 mph, and
[(6)] it is alleged that he is “swerving at vehicles.” [(7)] Before the sixminute mark, the officer accuses Appellant of getting close to cars then
suddenly swerving to the right lane. [(8)] At 14:30 is another reference
to Appellant trying to cause accidents. This narration continues
throughout the video. [(9)] Importantly, at about 21:25, Scudder
proclaims, “Every time there’s a vehicle in the right lane, he gets in the
right lane and heads that up . . . and then swerves off really quickly; it’s
like he’s trying to cause an accident.”
Our analysis reorders and groups these nine statements based on content.13
thus also recorded on Deputy Scudder’s dash-camera video. Mayo does not
challenge the admission of the dash-camera video on appeal.
• Next, Mayo attacks three of Deputy Scudder’s statements reporting Mayo’s
speed as 90 mph, 100 mph, and 108 mph. But throughout the dash-camera
videos, Deputies Scudder and Tharp can be heard periodically reporting Mayo’s
speed—or the speed of the police caravan keeping up with Mayo—over the
police radio. On the videos, the deputies reported speeds of 90 mph, 108 mph,
“increasing again going about 109,” about 110 mph, “still at 110,” “114 mph,”
“115,” “about 108,” and “106 mph.” Neither dash-camera video is challenged
on appeal.
• The fifth statement Mayo challenges is Deputy Scudder’s observation that
Mayo “killed his headlights and taillights again.” However, Deputy Tharp’s
dash-camera video recorded Deputy Scudder uttering a nearly identical
statement over the police radio later in the chase; Deputy Scudder can be heard
reporting that Mayo “keeps turning his headlights on and off.” As noted
previously, Mayo does not challenge Deputy Tharp’s dash-camera video on
appeal.
• In the sixth and seventh statements Mayo targets, Deputy Scudder reported
that Mayo was “swerving at vehicles.” Again, Deputy Tharp’s unchallenged
dash-camera video contained nearly identical statements. In this unchallenged14
footage, Deputy Scudder stated that Mayo was “swerving all across traffic,”
while Deputy Tharp stated that “[Mayo]’s weaving in and out of semis,”
“[Mayo]’s literally weaving at traffic,” and Mayo was “[s]till swerving at cars.”
Mayo’s counsel elicited similar testimony from Deputy Scudder at trial: Deputy
Scudder told the jury that Mayo “was swerving at the vehicles.” Mayo does not
challenge any of this cumulative evidence on appeal.
• Mayo’s final two challenged statements are comments regarding Mayo’s
attempts to cause accidents and his “getting close to cars then suddenly
swerving to the right lane.” Mayo emphasizes as particularly objectionable
Deputy Scudder’s observation that “[e]very time there’s a vehicle in the right
lane, [Mayo] gets in the right lane and heads that up . . . and then swerves off
really quickly; it’s like he’s trying to cause an accident.” But this same statement
can be heard just as clearly through the police radio in Deputy Tharp’s dashcamera footage. And, as discussed above in reference to Deputy Scudder’s
allegedly speculative trial testimony, Deputy Tharp’s dash camera recorded
multiple statements from Deputy Scudder speculating that Mayo was “trying to
cause other accidents.” See supra Section II.A.2. Deputy Tharp even reiterated
this impression at trial; he testified that Mayo “appeared [to be] trying to run
[other vehicles] off the road.” Again, Mayo does not challenge any of this
cumulative evidence on appeal.15
Because the nine challenged statements in Deputy Scudder’s body-camera footage
were cumulative of other testimony and video not challenged on appeal, any error in
the admission of these statements was harmless. See Estrada, 313 S.W.3d at 302 n.29;
Redmond, 2021 WL 1134410, at *11–12.
We overrule Mayo’s evidentiary challenges.
B. Deadly-Weapon Finding
In Mayo’s remaining issue, he claims that the evidence was insufficient to
support the jury’s deadly-weapon finding because, according to Mayo, “[t]he State’s
evidence showed only a potential for danger, not ‘actual danger.’”
1. Standard of Review and Applicable Law
In our evidentiary-sufficiency review, we consider all the evidence in the light
most favorable to the verdict to determine whether any rational factfinder could have
found, beyond a reasonable doubt, that Mayo used his vehicle as a deadly weapon.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Couthren v. State, 571
S.W.3d 786, 789 (Tex. Crim. App. 2019); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). A motor vehicle may be found to be a deadly weapon if “the
manner of its use or intended use is capable of causing death or serious bodily injury.”
Tex. Penal Code Ann. § 1.07(a)(17); Couthren, 571 S.W.3d at 789. A vehicle is not
“capable of causing death or serious bodily injury” unless its manner of use presents
an “actual danger” of causing such harm. Drichas v. State, 175 S.W.3d 795, 799–80016
(Tex. Crim. App. 2005); see Moore v. State, 520 S.W.3d 906, 912–13 (Tex. Crim. App.
2017).
When reviewing the sufficiency of a deadly-weapon finding based on the
defendant’s driving, we conduct a two-part analysis: “[F]irst, we evaluate the manner
in which the defendant used the motor vehicle during the felony” to determine if it
was reckless or dangerous; and “second, we consider whether, during the felony, the
motor vehicle was capable of causing death or serious bodily injury.” Sierra v. State,
280 S.W.3d 250, 255 (Tex. Crim. App. 2009). Admittedly, the two parts of this
analysis are often related, if not inextricably intertwined. See, e.g., Moore, 520 S.W.3d at
911–13 (addressing the two parts of the analysis together and recognizing that the
court of appeals stated the dangerousness analysis “dovetail[ed]” with the actualdanger analysis).
2. Actual Danger
Here, Mayo acknowledges that “[t]here was evidence that [he] was speeding
and swerving” in a dangerous manner while “other cars were present on the
highway,” but he contends that the evidence demonstrated only a “hypothetical
potential” for injury. According to Mayo, the State “could not point to anyone who
was actually in danger from [Mayo]’s driving.”
Mayo does not identify the vital missing ingredient he believes is necessary to
elevate the facts of this case to “actual danger,” and we find none. Surely Mayo does
not contend that “actual danger” only exists if it culminates in actual bodily injury to a 17
specific motorist; case law dictates otherwise, as does common sense. See, e.g., id. at
913 (holding that Moore’s use of his vehicle was capable of causing death or serious
bodily injury “even though it did not do so, and regardless of whether he intended it
to”). Indeed, the Court of Criminal Appeals has distinguished between “a deadly
weapon’s capability of causing death or serious bodily injury [and] its probability of doing
[so],” Drichas, 175 S.W.3d at 799–800,
16 and the Court has recognized that “[e]ven an
‘actual’ danger is just a potentiality.” Moore, 520 S.W.3d at 913 n.8 (citing Black’s Law
Dictionary for the definition of “danger” as “[p]eril; exposure to harm, loss, pain, or
other negative result”). “The difference between an actual ‘exposure’ to death or
serious bodily injury and a hypothetical ‘exposure’ to such an injury is necessarily only
one of degree.” Id. at 913. Evidence of actual danger does not require a showing that
other motorists were forced to take evasive action, that other motorists were in the
zone of danger, or that the defendant actually caused a collision; it merely requires a
showing that “the manner of [the defendant’s] use of his motor vehicle substantially
‘exposed’ [another individual] . . . to death or serious bodily injury.” Id.; Drichas, 175
S.W.3d at 799.
The facts of this case are sufficient to support a jury finding that the manner in
which Mayo used his vehicle exposed other highway motorists to death or serious
16At the time Drichas was issued, the Court of Criminal Appeals still
distinguished between the legal and factual sufficiency standards of review. Cf. Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.).18
bodily injury.
17 The record reveals that Mayo drove his vehicle at extremely high
speeds—over 100 mph—in low-visibility conditions, talking on his cell phone
“[p]ractically the entire time,” turning his headlights on and off, [SX4(8:40-8:50)] and
aggressively tailgating and swerving around other vehicles. See Hazlewood v. State, No.
02-18-00372-CR, 2019 WL 2635567, at *2 (Tex. App.—Fort Worth June 27, 2019,
pet. ref’d) (mem. op., not designated for publication) (upholding deadly-weapon
finding where Hazlewood “drove at high speeds [of up to 90 mph]” and “led a group
of officers on a 32-minute high-speed chase, apparently while talking on his cell
phone for at least part of the time”); Govea v. State. No. 02-16-00368-CR, 2017 WL
3429144, at *1–4 (Tex. App.—Fort Worth Aug. 10, 2017, no pet.) (mem. op., not
designated for publication) (upholding deadly-weapon finding where Govea led an
officer on a high-speed chase, drove over 100 mph, and passed vehicles on the
shoulder).
Less than one minute after the chase began, Deputy Scudder’s dash camera
recorded Mayo tailgating another vehicle until both cars swerved off the road—
narrowly avoiding a collision at highway speeds, sending Mayo’s vehicle into a spin,
and forcing the other motorist onto the parallel service road. See Mann v. State, 13
S.W.3d 89, 92 (Tex. App.—Austin 2000) (upholding deadly-weapon finding where
Mann drove across the center line and “almost hit another vehicle head-on,” forcing
17The relevant time period for determining whether Mayo’s vehicle was used as
a deadly weapon is the time period during Mayo’s evasion from Deputy Scudder. See
Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).19
the ongoing vehicle to take “evasive action” to avoid the collision), aff’d, 58 S.W.3d
132 (Tex. Crim. App. 2001) (adopting lower court’s opinion regarding deadly-weapon
finding). Deputy Scudder described the incident in his testimony, and he indicated
that, despite this near collision, Mayo continued to aggressively tailgate other vehicles
in a similar manner throughout the chase. The deputy confirmed that if the other
motorists had “hit the brakes or slowed down or something, [it] could have caused a
wreck.”
In addition to tailgating, Mayo swerved in between, in front of, and “at” other
vehicles. Deputy Tharp testified that he “observed vehicles having to hit their brakes,
especially semis, when [Mayo] cut around on the right shoulder and came back
through” them. See Govea, 2017 WL 3429144, at *3–4 (upholding deadly-weapon
finding where Govea wove in between vehicles and “several of them were forced to
take evasive actions . . . to prevent colliding with Govea”). Deputy Scudder described
a similar weaving incident on an exit ramp; he testified that Mayo used the ramp to
cut in front of two vehicles driving in the two main lanes of the interstate by driving
in the exit lane, passing an exiting eighteen-wheeler on the right, then cutting in front
of the eighteen-wheeler—“thread[ing] the needle” between the truck and the vehicle
in front of it—to swerve back onto the interstate across the triangular exitdemarcation lines.
Deputies Scudder and Tharp both confirmed that Mayo’s driving was “capable
of causing a wreck.” In fact, the deputies told the jury that “it appeared [Mayo] was 20
trying to run [other vehicles] off the road,” or “make them wreck.”—an impression
supported by the brief sample of Mayo’s driving recorded on Deputy Scudder’s dashcamera video. The deputies further testified that had a wreck occurred, it could have
“caused death or serious bodily injury.” Indeed, the fact that Deputy Scudder,
Deputy Tharp, and multiple other law-enforcement personnel risked their own safety
to chase Mayo and the fact that they repeatedly blocked highway lanes with spike
strips in an attempt to stop his vehicle attest to the gravity of the danger they believed
Mayo’s driving presented. See Hazlewood, 2019 WL 2635567, at *2 (upholding deadlyweapon finding where Hazlewood “caused officers to block the road in an attempt to
stop him”). The jury was entitled to believe the deputies’ testimony and to agree with
the deputies’ assessment of Mayo’s driving. See Hernandez v. State, 161 S.W.3d 491,
500 (Tex. Crim. App. 2005) (“[T]he trier of fact . . . was free to accept or reject all or
any portion of any witness’s testimony.” (quoting Adelman v. State, 828 S.W.2d 418,
421 (Tex. Crim. App. 1992))).
In sum, the facts of this case are more than sufficient to allow a reasonable jury
to find that the manner in which Mayo drove his vehicle presented an actual danger of
death or serious bodily injury. We overrule Mayo’s sufficiency challenge.
C. Clerical Errors in Judgment
We raise a final issue sua sponte: there are clerical errors in the judgment.
We may modify errors in the judgment sua sponte if they are clerical errors that
the trial court could have corrected by a judgment nunc pro tunc and the information 21
necessary to correct the judgment appears in the record. Cain v. State, 621 S.W.3d 75,
88 (Tex. App.—Fort Worth 2021, no pet. h.); Ette v. State, 551 S.W.3d 783, 792 (Tex.
App.—Fort Worth 2017), aff’d, 559 S.W.3d 511 (Tex. Crim. App. 2018). Clerical
errors are those that do not result from judicial reasoning or determination, such as
typographical mistakes. Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988);
Cain, 621 S.W.3d at 88.
There are multiple clerical mistakes in Mayo’s written judgment that do not
accurately reflect the trial proceedings. Although Mayo elected to have the trial court
assess his punishment, portions of the judgment erroneously indicate that Mayo
elected to have the jury assess his punishment. For example, the main title on the first
page18 of Mayo’s judgment reads, in relevant part: “Jury Finding of Guilt with
Punishment Assessed by the Jury.” [Capitalization altered and emphasis added.] Then, the
second page of the written judgment states that Mayo “elected to have punishment
assessed by the jury,” and it recites an entire paragraph of jury-related punishment
procedures that allegedly occurred.
19 In reality, none of these jury-related punishment
18Curiously, the headers on the last two pages of Mayo’s three-page judgment
bear the proper title: “Judgment on Plea of Not Guilty[;] Jury Finding of Guilt With
Punishment Assessed by the Court[;] Penitentiary Sentence.”
19The inapplicable paragraph on page two of Mayo’s judgment reads:
Thereafter, the Defendant, having elected to have punishment assessed
by the jury, the enhancement paragraph(s), if any, were read and the
Defendant entered the plea to said enhancement paragraph(s) noted
above. Thereafter, the jury, having heard the evidence submitted relative 22
procedures actually happened. Yet, the judgment goes on to order that Mayo shall
“be punished in accordance with the Jury Verdict.” Again, the jury did not return a
verdict on punishment; punishment was to the court.
Because the written judgment does not accurately document Mayo’s
sentencing, we modify Mayo’s written judgment to reflect that punishment was tried
to and assessed by the trial court. Tex. R. App. P. 43.2(b).
Outcome: Having overruled Mayo’s points and modified the judgment to reflect the
record, we affirm the trial court’s judgment as modified.
Plaintiff's Experts:
Defendant's Experts:
Comments: