Henry Curtis Mayo v. the State of Texas

             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00404-CR
     ___________________________

   HENRY CURTIS MAYO, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 415th District Court
          Parker County, Texas
       Trial Court No. CR19-0317


  Before Birdwell, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

      Appellant Henry Curtis Mayo led law-enforcement officers on a nearly fifty-

mile high-speed chase; he was convicted of evading arrest or detention with a vehicle

while using a deadly weapon. Mayo challenges his conviction on three grounds which

we construe as two: 1 (1) he contends that the trial court erred by admitting two

portions of evidence—speculative testimony from one of the officers involved in the

chase and hearsay statements recorded on the officer’s body camera—and (2) Mayo

claims that the evidence is insufficient to support the jury’s deadly-weapon finding.

Neither argument is persuasive; any error in the admission of the challenged evidence

was harmless, and the record more than supports the jury’s deadly-weapon finding.

Therefore, after modifying a clerical error in the judgment sua sponte, we affirm.

                                  I. BACKGROUND

      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.

                                           2
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.

                                           3
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 law-

enforcement 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,


         A trainee accompanied Deputy Tharp and drove his police car during the
         4

chase.

                                           4
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


      Specifically, Mayo’s indictment alleged that he evaded arrest or detention by
       5

Deputy Scudder.

                                             5
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.

                                           6
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



      Deputy Tharp’s dash-camera video began approximately six minutes into
      8

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.”

                                            7
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.



      10
        When 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.”
      11
        When 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.


                                           8
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 body-

camera 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);

       Although the State had notified Mayo that it intended to enhance his
      12

punishment based on his prior Mississippi felony conviction, it did not do so. See
Tex. Penal Code Ann. § 12.42(a).

                                           9
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




      13
        Mayo 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).

                                          10
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 body-

camera 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




        At trial, Mayo’s own counsel elicited testimony from Deputy Tharp
       14

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.


                                              11
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 body-

camera 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 dash-

camera 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

        The following paragraph of Mayo’s brief highlights the allegedly objectionable
       15

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 six-
       minute 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.

                                           12
    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 unchallenged



                                      13
    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 dash-

    camera 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.



                                         14
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, 799–800



                                            15
(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 actual-

danger 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

                                            16
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



       16
          At 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.).

                                            17
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

      17
         The 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).

                                          18
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 exit-

demarcation 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

                                           19
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 dash-

camera 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 deadly-

weapon 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

                                           20
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


      18
        Curiously, 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.”
      19
        The 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

                                          21
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).

                                  IV. CONCLUSION

      Having overruled Mayo’s points and modified the judgment to reflect the

record, we affirm the trial court’s judgment as modified.

                                                      /s/ Dabney Bassel

                                                      Dabney Bassel
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 24, 2021




      to the question of punishment, the arguments of counsel, and having
      been duly charged by the Court, retired in charge of the proper officer to
      consider the verdict, and afterward were brought into Court by the
      proper officer, the Defendant and defendant’s counsel being present,
      and returned into open Court the verdict set forth above under
      punishment above, and with regard to the enhancement paragraphs, if
      any, as shown above, which was received by the Court and is here now
      entered upon the minutes of the Court as shown above.

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