             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.



                                          2
      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.



                                            3
      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

                                           4
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.




                                            5
                             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

                                            6
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.—

                                            7
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.



                                           8
       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)

                                            9
(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




                                          10
