Clayton Ray Mockabee v. the State of Texas ( 2023 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00053-CR
CLAYTON RAY MOCKABEE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. DC-F202000507
MEMORANDUM OPINION
A jury convicted Clayton Ray Mockabee of the felony offense of evading arrest
or detention in a vehicle which the jury found to be a deadly weapon. See TEX. PENAL
CODE § 38.04(a), (b)(2)(A). Punishment was assessed at 12 years in prison. Because
the evidence is sufficient to support the verdict, and because the trial court did not
violate Mockabee’s Sixth Amendment right to counsel, the trial court’s judgment is
affirmed.
BACKGROUND
A Johnson County Sheriff’s deputy attempted to stop a vehicle Mockabee was
driving because the rear, paper license tag was not legible from a distance of 50 feet.
When the deputy activated his emergency lights, Mockabee slowed down, as if to stop,
but instead, sped off.
Mockabee knew he was supposed to stop when the deputy activated the
emergency lights, but Mockabee did not stop. After many miles at high speeds and
after running over spikes thrown out by deputies and local police, which slowed
Mockabee’s vehicle considerably, the vehicle finally came to a stop in a ditch by a gas
station, and Mockabee was arrested.
SUFFICIENCY OF THE EVIDENCE
Mockabee’s first two issues concern the sufficiency of the evidence to support
the verdict while his third issue concerns the sufficiency of the evidence to support
the deadly weapon finding made by the jury. Specifically, Mockabee contends the
evidence was insufficient to prove a lawful attempt to detain Mockabee, that
Mockabee intentionally fled from the attempted detention, or that others were placed
in actual danger.
Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence,
we consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
the appellate court to defer "to the responsibility of the trier of fact fairly
to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S.
at 319. We may not re-weigh the evidence or substitute our judgment
for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007). The court conducting a sufficiency review must not
Mockabee v. State Page 2
engage in a "divide and conquer" strategy but must consider the
cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although
juries may not speculate about the meaning of facts or evidence, juries
are permitted to draw any reasonable inferences from the facts so long
as each inference is supported by the evidence presented at trial. Cary
v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443
U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
2007). We presume that the factfinder resolved any conflicting
inferences from the evidence in favor of the verdict, and we defer to that
resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
This is because the jurors are the exclusive judges of the facts, the
credibility of the witnesses, and the weight to be given to the testimony.
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct
evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction
so long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was
sufficient to support a conviction by comparing it to "the elements of the
offense as defined by the hypothetically correct jury charge for the case."
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The
hypothetically correct jury charge is one that "accurately sets out the law,
is authorized by the indictment, does not unnecessarily increase the
State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the
defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665
(Tex. Crim. App. 2013). The "law as authorized by the indictment"
includes the statutory elements of the offense and those elements as
modified by the indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
Validity of Traffic Stop
Police officers may stop and detain a person if they have a reasonable suspicion
that a traffic violation is in progress or has been committed. Garcia v. State, 827 S.W.2d
937, 944 (Tex. Crim. App. 1992); Rush v. State, 549 S.W.3d 755, 758 (Tex. App.—Waco
2017, no pet.). Reasonable suspicion exists if the officer has specific, articulable facts
that, when combined with rational inferences from those facts, would lead him to
Mockabee v. State Page 3
reasonably conclude that a particular person actually is, has been, or soon will be
engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App.
2007); Richardson v. State, 494 S.W.3d 302, 304 (Tex. App.—Waco 2015, no pet.).
Late at night, a Johnson County Sheriff’s deputy, in a marked Sheriff’s vehicle,
passed a white vehicle which did not appear to have a front bumper 1 and did not have
a front license plate. It was later determined that Mockabee was driving this vehicle.
When the deputy turned around and caught up to the vehicle, he noticed a paper tag
on the back bumper and knew that if a paper tag was displayed, only one such tag
was required. As the deputy drew closer to the vehicle, he noticed that, although one
light illuminated the tag, the tag number was not legible at 50 feet as required by
statute. He turned off his own headlights to verify that the tag number was illegible.
After this verification, the deputy activated his emergency lights in an attempt to stop
the vehicle.
Under the Texas Transportation Code, a vehicle must be equipped with a tail
lamp or separate lamp constructed and mounted to emit a white light that illuminates
the rear license plate and makes the plate clearly legible at a distance of 50 feet from
the rear. TEX. TRANSP. CODE § 547.322(a), (b), (f). In this case, the vehicle had a license
plate light that emitted a white light. However, the deputy determined that the paper
tag was not legible from 50 feet away. Further, the deputy’s dash-cam video and still
photographs taken from the video, both introduced into evidence, did not show a
legible tag.
Mockabee contends it was not his responsibility to ensure the legibility of the
1
Ultimately, it was determined that the vehicle had a front bumper, but it was black while the vehicle
was white.
Mockabee v. State Page 4
tag, but rather, it was the dealer’s responsibility. He cites to section 503.063(c)(2) of
the Texas Transportation Code in support of this theory. Mockabee is correct that a
dealer who issues a temporary buyer’s tag to a person who buys a vehicle is
responsible for displaying the tag. TEX. TRANSP. CODE § 503.063(a), (c)(2). However,
there is nothing in this section of the Code that requires the dealer to ensure that a rear
license plate light illuminates and makes the tag legible at a distance of 50 feet.
Moreover, there was evidence that the tag on the vehicle was not assigned to that
vehicle and the vehicle was stolen, thus undermining the argument that the
responsibility to ensure the legibility of the tag was, and would properly remain, on
the dealer who sold the vehicle.
Accordingly, viewing the evidence under the appropriate standards and
applicable law, the evidence was sufficient to prove a lawful attempt to detain
Mockabee for failure to properly illuminate a license plate. Mockabee’s second issue
is overruled.
Fleeing
A person commits the felony offense of evading arrest or detention if the person
intentionally flees from a person he knows is a peace officer attempting lawfully to
arrest or detain him. TEX. PENAL CODE § 38.04(a),(b)(2)(A). In the context of evading
with a motor vehicle, fleeing has been held to be anything less than prompt
compliance with an officer's direction to stop. Rush v. State, 549 S.W.3d 755, 759 (Tex.
App.—Waco 2017, no pet.).
Here, as soon as the deputy’s emergency lights came on, the vehicle slowed
down like a normal traffic stop, and the deputy could see the passenger door start to
Mockabee v. State Page 5
open. The deputy requested another unit because he thought the passenger in the
vehicle was about to jump out and run. But the vehicle did not stop. The door closed,
and the vehicle accelerated to a high rate of speed. About a mile down the road, the
vehicle came to a complete stop, and the passenger jumped out. The vehicle then sped
off, and its lights were turned off. As the deputy gave chase, other deputies joined in
and, in town, deployed spikes several times to try to stop the vehicle. The vehicle ran
over the spikes two or three times but did not stop. While the speed of the vehicle
exceeded 100 miles per hour at the beginning of the chase, it decreased speed to about
70 miles per hour, at times, when driving through town. And after running over the
spikes, the speed decreased to about 17 miles per hour. But the vehicle still did not
stop. Ultimately, the vehicle rolled slowly to a stop in a grassy area by a large gas
station off the access road to Interstate 35. Mockabee exited the vehicle through its
driver’s side window and was ordered to lay, face down, in the grass where he was
then arrested.
Mockabee knew the general rule that a person should stop when a police
officer’s emergency lights are activated. He also knew what was going on when the
deputy’s emergency lights were activated that night. He admitted that he did not
stop. He contends, however, that he did not “intentionally” flee because he feared for
his safety and his family’s safety. According to Mockabee, the passenger in the vehicle
“freaked out” when the deputy’s emergency lights came on and started throwing
things out of the vehicle while yelling at Mockabee to “go, go, go.” Mockabee said the
items thrown out included a gun. The gun, coupled with the passenger yelling at him,
scared him. Mockabee testified that the passenger then held a knife to Mockabee’s
Mockabee v. State Page 6
temple. Once the passenger got out of the vehicle, Mockabee said he remained scared
for himself and his family because the passenger knew where Mockabee’s family
lived.
It is well established that the factfinder is entitled to judge the credibility of
witnesses and can choose to believe all, some, or none of the testimony presented by
the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury
could have disbelieved Mockabee’s explanation as to why he did not stop. This is
especially so given Mockabee’s two prior felony convictions and an outstanding
parole warrant at the time of the offense, the vehicle was reported stolen and the paper
tag was not assigned to that vehicle, and the impeachment of Mockabee’s testimony
that he had blood dripping down his face when he emerged from the vehicle as a
result of the passenger holding a knife to Mockabee’s head.
Accordingly, viewing the evidence under the appropriate standards and
applicable law, the evidence was sufficient to prove Mockabee intentionally fled from
the attempted detention. Mockabee’s first issue is overruled.
Deadly Weapon
To hold evidence legally sufficient to sustain a deadly weapon finding, the
evidence must demonstrate that: (1) the object meets the definition of a deadly
weapon; (2) the deadly weapon was used or exhibited during the transaction on which
the felony conviction was based; and (3) that other people were put in actual danger.
Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014). Mockabee does not dispute
that the evidence was sufficient to support the first two elements. Rather, he contends
the evidence is insufficient to show that other people were put in actual danger. A
Mockabee v. State Page 7
deadly-weapon finding is justified if a rational jury could have concluded that the
appellant's vehicle posed an actual danger of death or serious bodily injury. Sierra v.
State, 280 S.W.3d 250, 254, 256-57 (Tex. Crim. App. 2009).
The chase began on country roads where very few vehicles were travelling.
However, the chase proceeded through urban areas where the traffic increased to a
few more vehicles. Mockabee drove through multiple traffic signals at approximately
90-100 miles per hour. One deputy’s dash-cam video showed Mockabee travelling
rapidly around another vehicle on the roadway. The deputy agreed with the
prosecutor that Mockabee was “close to hitting” that vehicle. Also, at one point,
Mockabee drove on the shoulder of the roadway toward another deputy who had
placed spikes on the road to deflate the tires and slow down the vehicle. That deputy
thought the vehicle would hit him, but saw that it swerved back into its lane “pretty
early.” Further, after running over one set of spikes with his front left tire which
started to slow down his speed, and while trying to avoid yet another set of spikes,
Mockabee hit the concrete center median separating his lane of traffic from the
opposing lanes of traffic, where other vehicles were traveling, and bounced back into
his own lane. One of the deputies chasing Mockabee believed that had the median
not been there, Mockabee would have likely hit one of those other vehicles. The
deputy was also concerned overall for the safety of the other drivers, Mockabee,
himself, and the other deputies on the road. He believed that if the vehicle had hit
someone in the manner in which it was being operated, it was likely to have caused
injury to that person.
While the danger posed to motorists must be actual, and not simply
Mockabee v. State Page 8
hypothetical, the statute itself does not require pursuing police officers or other
motorists to be in a zone of danger, take evasive action, or require a defendant to
intentionally strike another vehicle to justify a deadly weapon finding. Drichas v. State,
175 S.W.3d 795, 799 (Tex. Crim. App. 2005). A deadly weapon finding is appropriate
on a showing of actual danger, such as evidence that another motorist was on the
highway at the same time and place as the defendant when the defendant drove in a
dangerous manner. Id.Accordingly, viewing the evidence under the appropriate standards and
applicable law, the record supports a conclusion that a rational trier of fact could have
found beyond a reasonable doubt that Mockabee used the vehicle as a deadly weapon.
We overrule Mockabee’s third issue.
RIGHT TO COUNSEL
In his fourth issue, Mockabee complains his Sixth Amendment right to counsel
was violated because he did not have assistance of counsel between November 2, 2021
and November 9, 2021. Specifically, he contends he did not have counsel to advise
him when a plea offer from the State was made and withdrawn and he had not waived
his right to representation.
Under the Sixth Amendment to the United States Constitution, criminal
defendants have a right to the assistance of counsel for their defense. U.S. CONST.
amend. VI. This right extends to all critical stages of the criminal proceeding, not just
the actual trial. Gilley v. State, 418 S.W.3d 114, 120 (Tex. Crim. App. 2014). But not
every event following the inception of adversary judicial proceedings constitutes a
critical stage so as to invoke the right to counsel under the Sixth Amendment. Id.Mockabee v. State Page 9
(quotations omitted). A proceeding is a critical stage if the absence of counsel may
result in rights being irretrievably lost if not then and there asserted, or if the accused
requires aid in coping with legal problems or assistance in meeting his adversary.
Villafranco v. State, 654 S.W.3d 753, 759 (Tex. Crim. App. 2021).
The record reflects that Mockabee’s attorney requested to withdraw as counsel
due to a conflict during a pretrial hearing approximately a month before trial. In
response to counsel’s request, the State informed the trial court that it was trying the
case in December and that it was withdrawing the plea bargain offer. After the offer
was withdrawn, the trial court asked an attorney in the court room, who was
ultimately appointed as Mockabee’s counsel a week later, to check for conflicts to
representation. The trial court then allowed Mockabee’s previously appointed
counsel to withdraw.
By the date of the hearing, Mockabee had been represented by several different
attorneys and was represented by counsel when the plea bargain offer of 8 years in
prison was made. He was still represented by counsel, albeit by a different attorney,
when the offer was withdrawn. Mockabee admitted at a later hearing that he had
conferred with a prior attorney about the offer. The record does not reflect that
anything occurred during the time after his attorney was allowed to withdraw and his
new attorney appointed one week later that required aid in coping with legal
problems or assistance in meeting his adversary.
Notwithstanding the offer was withdrawn while Mockabee still had counsel, a
defendant has no right to demand the State to offer to enter into a plea bargain
agreement. Thompson v. State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1984). Thus, no
Mockabee v. State Page 10
rights were in jeopardy of being irretrievably lost if not asserted in the week between
representation by counsel.
Accordingly, Mockabee’s Sixth Amendment right to counsel was not violated,
and his fourth issue is overruled.
CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed March 22, 2023
Do not publish
[CR25]
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