In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00238-CR
___________________________
RALEIGH LEE KEMP JR., Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1428013D
Before Sudderth, C.J.; Birdwell and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
In one issue, appellant Raleigh Lee Kemp Jr. appeals his conviction for evading
arrest on September 7, 2015. Kemp contends that the trial court reversibly erred
under Rule 403 when it admitted prejudicial evidence concerning another offense of
evading arrest which Kemp committed some eight months later, on May 31, 2016.
Because we conclude that the Rule 403 factors weigh, on balance, in favor of
admission, we hold that the trial court did not abuse its discretion in admitting the
evidence in question. We therefore affirm.
I. Background
On the evening of September 7, 2015, Officer James Polyak was driving his
marked police unit on the east side of Fort Worth. He came to a stop at a red light,
and a new Ford Taurus caught his eye. Officer Polyak ran its license plate. The
system showed that the Taurus was a rental car and that a police bulletin had reported
the vehicle as possibly stolen. Officer Polyak engaged his emergency lights to conduct
a traffic stop. The driver of the Taurus complied.
Officer Polyak found Kemp in the driver’s seat and Jose Rios in the passenger
seat. Kemp provided his driver’s license but said that he did not have the rental
paperwork for the vehicle. Officer Polyak returned to his patrol unit to investigate
the bulletin further. He found that Kemp matched the description of the driver in the
bulletin, so he called for backup. Officer Terrance Horn arrived minutes later.
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The two officers approached the Taurus on foot, dressed in full uniform, and
as they reached the vehicle’s front door, Kemp threw the car in drive and sped off.
The officers gave chase, following Kemp in a high-speed pursuit as he passed stop
signs and weaved through traffic. The chase led Kemp into a parking lot, and from
there, he drove into a field of high grass. Suddenly, Kemp leapt from the moving
vehicle and began running through the field in the dark. The officers exited their
vehicles and pursued Kemp on foot, yelling for him to stop. Officer Horn reached
Kemp first, and they fell into the tall grass struggling. Officer Horn punched Kemp
and wrestled him into handcuffs, and Officer Polyak returned to his unit and began to
look for the Taurus in the grass. He found Rios waiting in the passenger seat of the
Taurus, beneath which the grass had caught fire. Officer Polyak took him into
custody and backed him away as the vehicle began to burn.
Kemp was indicted on one count of evading arrest using a vehicle, a felony of
the third degree. See Tex. Penal Code Ann. § 38.04(b)(2)(A); Adetomiwa v. State, 421
S.W.3d 922, 927 (Tex. App.—Fort Worth 2014, no pet.). The indictment included
enhancement paragraphs alleging that Kemp had two prior felony convictions. See
Tex. Penal Code Ann. § 12.42(d). Kemp pleaded not guilty. At trial, the jury was
informed that Kemp failed to appear for his first two court dates on February 22,
2016 and August 8, 2016, respectively. The jury was also informed that Kemp had an
extensive criminal history, including multiple felonies.
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Kemp’s defensive theory was necessity and duress. He testified that Rios had a
gun and a large amount of drugs in his possession, and that Rios urged him not to pull
over when Officer Polyak first triggered his emergency lights. Kemp testified that
when he complied with the traffic stop, an argument ensued, and Rios soon ordered
him at gunpoint to drive away. According to Kemp, he acquiesced because he
believed that Rios would shoot him if he did not comply, so he drove as Rios gave
directions. Kemp explained that he jumped out of the car because it caught fire in the
field, and when he was tackled by police, he pointed back to the car to alert them that
Rios had a weapon. Though no weapon was found on Rios or in the vehicle, Kemp
argued that such a weapon might have been destroyed as the vehicle burned. Officer
Polyak agreed that he heard loud booms and pops coming from the fire, and Kemp
suggested that these might have been caused by bullets exploding inside the vehicle.
However, Officer Polyak testified that he did not see any firearms inside the
vehicle at any point during the initial traffic stop. He further testified that when he
returned to his patrol unit after his initial encounter with Kemp, he watched the
Taurus, but he did not see Rios make any movements that might have indicated he
was reaching for a weapon. Officer Polyak felt that, as he and Officer Horn later
approached the vehicle on foot, the prospect of having two armed officers alongside
the vehicle should have provided Kemp with some security if he was indeed being
held at gunpoint, rather than sparking him to lead the officers on a high-speed pursuit.
Officer Polyak noted that when Kemp ran from the vehicle, Kemp did not stop
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running or signal that he needed help, and even when apprehended, he did not
mention that Rios had threatened him with a weapon.
To further rebut Kemp’s defensive theories of necessity and duress, the State
sponsored testimony that Kemp subsequently committed another similar offense of
evading arrest eight months later, on May 31, 2016. Officer Gordon Jones testified
that on that day, he was notified that Kemp had an outstanding warrant and was in
the vicinity. He found Kemp by himself, parked at a local gas station, just getting out
of his vehicle. When Officer Jones activated his emergency lights and called out to
Kemp, Kemp got back in the vehicle and drove away, leading officers on a chase at
speeds exceeding eighty miles-per-hour in a residential area. He then abandoned the
vehicle and ran on foot. Kemp was eventually found hiding under a mattress,
whereupon he was apprehended. The State emphasized that Kemp was alone
throughout his flight from police, with no passenger to purportedly hold him at
gunpoint, and yet he evaded arrest just as before. Kemp objected that this testimony’s
prejudicial content far outweighed any probative value, but the objection was
overruled.
At the conclusion of the evidence, the jury found Kemp guilty as charged. The
trial court found the enhancement paragraphs true and sentenced Kemp to thirty
years’ confinement. This appeal followed.
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II. Admission of Evidence
In his sole issue, Kemp challenges the trial court’s decision to admit the
testimony of Officer Jones concerning his flight from police on May 31, 2016. Kemp
contends that the probative value of the evidence is substantially outweighed by its
attendant danger of unfair prejudice, and it is therefore inadmissible under Texas Rule
of Evidence 403.
“If judicial restraint is ever desirable, it is when a Rule 403 analysis of a trial
court is reviewed by an appellate tribunal.” Montgomery v. State, 810 S.W.2d 372, 379
(Tex. Crim. App. 1990) (quoting United States v. Long, 574 F.2d 761, 767 (3d Cir.
1978)). We reverse a trial court’s determination under Rule 403 “rarely and only after
a clear abuse of discretion,” recognizing that the trial court is in a superior position to
gauge the impact of the evidence. Martin v. State, 176 S.W.3d 887, 895 (Tex. App.—
Fort Worth 2005, no pet.).
When a Rule 403 objection is made, the trial court must engage in a balancing
process. Perez v. State, 562 S.W.3d 676, 689 (Tex. App.—Fort Worth 2018, pet. ref’d).
On one end of the scales, the court must weigh (1) the inherent probative force of the
evidence along with (2) the State’s need for the evidence. Gigliobianco v. State, 210
S.W.3d 637, 641 (Tex. Crim. App. 2006). On the other end, the court weighs (3) any
tendency of the evidence to suggest a decision on an improper basis, (4) any tendency
of the evidence to confuse or distract the jury from the main issues, (5) any tendency
of the evidence to be given undue weight by a jury that has not been equipped to
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evaluate the probative force of the evidence, and (6) the likelihood that presentation
of the evidence will consume an inordinate amount of time or merely repeat evidence
already admitted. Id. at 641–42. The balance is always slanted toward admission of
relevant evidence, for Rule 403 carries a presumption that relevant evidence will
generally be more probative than problematic. De La Paz v. State, 279 S.W.3d 336,
343 & n.17 (Tex. Crim. App. 2009); Wells v. State, 558 S.W.3d 661, 669 (Tex. App.—
Fort Worth 2017, pet. ref’d). It was Kemp’s burden to overcome this presumption
and demonstrate that the probative value of the evidence is substantially outweighed
by the danger of unfair prejudice or other factors. Wells, 558 S.W.3d at 669.
We begin with the first factor, the inherent probative force of the evidence.
“[P]robably the most common situation which gives rise to the admission of
extraneous offenses is in rebuttal of a defensive theory.” Johnston v. State, 145 S.W.3d
215, 219 n.11 (Tex. Crim. App. 2004) (quoting Crank v. State, 761 S.W.2d 328, 341
(Tex. Crim. App. 1988), disapproved of on other grounds by Alford v. State, 866 S.W.2d 619
(Tex. Crim. App. 1993)). Many courts, including this one, have found evidence to be
relevant when admitted to rebut a defensive theory of necessity or duress. See Ibarra v.
State, No. 04-11-00845-CR, 2013 WL 1641493, at *6 (Tex. App.—San Antonio
Apr. 17, 2013, no pet.) (mem. op., not designated for publication) (“[T]he evidence in
question was highly probative because it tended to rebut Ibarra’s defense of duress.”);
Scroggs v. State, 396 S.W.3d 1, 14–15 (Tex. App.—Amarillo 2010, pet. dism’d, untimely
filed) (op. on reh’g) (necessity); King v. State, 189 S.W.3d 347, 355–56 (Tex. App.—
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Fort Worth 2006, no pet.) (duress); Stefanoff v. State, 78 S.W.3d 496, 502–03 (Tex.
App.—Austin 2002, pet. ref’d) (op. on reh’g) (necessity).
The same is true here. Kemp’s sole defense was that he was compelled to flee
by Rios’s implied threat of violence. But this defense was squarely rebutted by
evidence that Kemp engaged in another flight from police when Rios was absent.
Kemp’s subsequent flight also indicates a consciousness of guilt, which further
supports an inference of guilt. Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App.
1994). Thus, this factor weighs heavily in favor of the State.
As to the second factor, the State had a modest need for this evidence. In
evaluating this factor, we consider (1) whether the proponent has other available
evidence to establish the fact of consequence that the evidence is relevant to show,
(2) the strength of the other evidence, and (3) whether the fact of consequence is
related to an issue that is in dispute. Erazo v. State, 144 S.W.3d 487, 495–96 (Tex.
Crim. App. 2004). The State drew out many inconsistencies in Kemp’s account of
events, such as the fact that Kemp never mentioned a weapon until the early stages of
trial. To an extent, this other evidence sapped the strength of Kemp’s defense, which
was a central and disputed issue. However, none of this other evidence spoke so
persuasively as Kemp’s second offense of evading arrest, committed in a similar
fashion and without any encouragement from an armed passenger. The second factor
weighs in favor of the State.
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As to the third factor, the evidence in question had limited potential to cause
unfair prejudice. Unfair prejudice may be created by the tendency of the evidence to
prove some adverse fact not properly in issue or to unfairly excite emotions against
the defendant. Montgomery, 810 S.W.2d at 378. Kemp’s second evading offense
carried with it some temptation to convict him on the basis of criminal character or
propensity. See Morales v. State, 293 S.W.3d 901, 912 (Tex. App.—Texarkana 2009,
pet. ref’d). Nevertheless, this second offense was no more inflammatory or
prejudicial than the charged offense or the litany of other prior offenses to which
Kemp admitted, and nothing in the record suggests that the jury convicted the
defendant based on the later offense. See Chavez v. State, 399 S.W.3d 168, 173 (Tex.
App.—San Antonio 2009, no pet.). This factor weighs somewhat in favor of Kemp.
The remaining factors add no weight to the scales. As to the fourth and fifth
factors, we do not perceive any way in which the evidence would have confused or
distracted the jury, and the evidence was not of a scientific or technical character, such
that it might have been given undue weight by an untrained jury. See Gigliobianco, 210
S.W.3d at 641. Finally, as to the sixth factor, the trial court could have reasonably
concluded that the evidence in question was not cumulative and that its presentation
would not consume an inordinate amount of time. Indeed, Officer Jones’s testimony
comprised less than one-fifth of the testimony in the State’s case in chief (33 record
pages out of 170 total pages for the State’s case). We do not believe that this amount
of time was excessive. See Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996)
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(determining that the extraneous offense testimony was not excessive where it
constituted less than one-fifth of the State’s case in chief). These factors weigh
neutrally.
Two factors weigh in favor of admission, one of them heavily so. Only one
factor weighs somewhat in favor of exclusion. We therefore conclude that the trial
court did not exceed the “considerable freedom” it is afforded in exercising its
discretion under Rule 403. See Montgomery, 810 S.W.2d at 378. We overrule Kemp’s
sole issue.
III. Conclusion
We affirm the judgment of the trial court.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: May 23, 2019
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