In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-18-00238-CR

___________________________

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

RALEIGH LEE KEMP JR., Appellant

V.

THE STATE OF TEXAS
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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