NUMBER 13-11-00644-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

KEVIN WILLIAM KING, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the County Court at Law No. 2

of Jefferson County, Texas.

 

MEMORANDUM OPINION1

Before Justices Garza, Benavides, and Perkes

Memorandum Opinion by Justice Perkes

Appellant Kevin William King appeals his conviction for evading arrest, a class A 

misdemeanor. See TEX. PENAL CODE ANN. § 38.04(a)–(b) (West 2011). A jury found 

appellant guilty, and the trial court assessed punishment at thirty days’ confinement in the 

 

1

This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant 

to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
2

county jail of Jefferson County, Texas. By a single issue, appellant argues the trial court 

erred by admitting State’s Exhibit Nos. 2–13. We affirm. 

I. BACKGROUND2

Beaumont Police Officer Matthew Bean testified that as he was driving, he saw 

appellant standing in the middle of the road—“almost on the dotted lines.” Officer Bean 

had to stop his vehicle to avoid hitting him. Appellant then threw a bottle on the ground 

and continued to walk across the road. Officer Bean “hollered at him to stop,” but 

appellant responded “No” and began running away. Officer Bean and another officer, 

Officer Rosendo Lopez, chased appellant on foot. Eventually, Officer Lopez tackled 

appellant, causing Officer Lopez and appellant to tumble down an embankment. 

State’s Exhibit Nos. 2–13 are photographs taken shortly after appellant was 

apprehended. Exhibit Nos. 2–7 are photographs of Officer Lopez and show that Officer 

Lopez’s uniform was muddy from his struggle with appellant. Exhibit No. 5 is a close-up 

picture of Officer Lopez’s lower leg, showing minor scrapes. Exhibit Nos. 8–13 are

various photographs of appellant and show appellant with mud and scrapes; he has a 

bandage on his head because of an injury he sustained. Appellant objected to the 

photographs on the grounds that their probative value was substantially outweighed by 

their prejudicial effect. The trial court overruled the objection and admitted State’s 

Exhibit Nos. 2–13. 

II. ADMISSIBILITY OF EVIDENCE

By his sole issue, appellant argues the trial court erred by admitting State’s Exhibit 

 

2

Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for 

it. See TEX. R. APP. P. 47.4.
3

Nos. 2–13 over his rule 403 objection.3 We review the trial court’s admission of the 

exhibits for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. 

Crim. App. 1990) (en banc). A rule 403 review includes the following factors: (1) the 

probative value of the evidence; (2) the potential to impress the jury in some irrational, yet 

indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need 

for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). We 

consider the following additional factors with respect to the admission of photographs: 

the number of the photographs, the size, whether they are in color or are black and white, 

whether they are gruesome, whether any bodies are clothed or naked, and whether the 

body has been altered by autopsy. Id.

A. Erazo Factors

1. The Probative Value of the Evidence 

The photographs are probative to the fact-finder’s credibility analysis. Officer 

Lopez testified he tackled appellant to halt appellant’s evasion, whereas appellant 

claimed the officers assaulted him without provocation and that he was compliant when 

the officers ordered him to stop. The photographs show mud and scratches on Officer 

Lopez and appellant. See TEX. R. EVID. 401 (evidence is relevant if they have “any 

tendency to make the existence of any fact that is of consequence to the determination of 

the action more probable or less probable than it would be without the evidence”). 

Because appellant challenged Officer Lopez’s version of the events, the State was 

 

3

 “Although relevant, evidence may be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice . . . .” TEX. R. EVID. 403. To the extent appellant argues on appeal that 

the photographs were inadmissible under Texas Rule of Evidence 404(b) because they were more relevant 

to resisting arrest than evading arrest, this contention is unpreserved; appellant did not advance that 

argument in the trial court. See TEX. R. APP. P. 33.1. 
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entitled to provide a more complete account of the events giving rise to appellant’s arrest. 

See Dunklin v. State, 194 S.W.3d 14, 25 (Tex. App.—Texarkana 2006, no pet.). 

Moreover, photographs are generally admissible if verbal testimony as to the matters 

depicted is admissible. Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991) 

(en banc). Both officers and appellant testified about the events depicted in the 

photographs, thereby rendering them relevant and admissible. See id. This factor 

weighs in favor of admitting the exhibits. 

2. The Potential Jury Impact 

The photographs had little potential to impress the jury in some irrational, yet 

indelible, way. See Erazo, 144 S.W.3d at 489. “An abuse of discretion arises only 

when the probative value of the photograph is small and its inflammatory potential great.” 

Ramirez v. State, 815 S.W.2d at 646–47. Appellant contends he was prejudiced 

because three of the photographs showed him in handcuffs. A photograph of an

accused in handcuffs is admissible when the record reflects the accused was in custody 

and subject to physical restraint when the photograph was taken. See Neelys v. State, 

374 S.W.3d 553, 563–64 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); Avila v. State, 

15 S.W.3d 568, 574–75 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Appellant fails 

to show that the prejudicial effect of the photographs substantially outweigh their 

probative value. See Ramirez, 815 S.W.2d at 647. This factor weighs in favor of 

admission.4 

 

4

 Appellant’s reliance on Deck v. Missouri, 544 U.S. 622 (2005) and Holbrook v. Flynn, 475 U.S. 

560, 569 (1986) for the proposition that the photographs of him in handcuffs were overly prejudicial is 

misplaced. Those cases concern a defendant’s constitutional due process right against being shackled 

before a jury, see Deck, 544 U.S. at 624–30, or accompanied by a security detail during trial, see Holbrook, 
5

3. The Time Needed to Develop the Evidence

As shown by the record, very little time was used to develop the evidence during 

the trial. This factor weighs in favor of admitting the photographs.

4. The Proponent’s Need for the Evidence

In evaluating the need for the evidence, we must consider: (1) whether the 

proponent has other available evidence to establish the fact of consequence that the 

photograph 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, 144 S.W.3d at 

495–96. Other than the photographs, the evidence consisted of the officers’ testimony

and a video. The video, however, was not helpful to the determination of whether 

appellant complied with the officers’ orders to stop, as appellant insisted he did. The 

video was recorded from Officer Lopez’s patrol unit that was parked away from the chase; 

it only captured audio from a microphone that Officer Lopez was wearing. Thus, no other 

evidence except the officers’ testimony was available to establish the fact that appellant 

refused to comply. This factor weighs in favor of admitting the exhibits. 

5. Other Factors

Lastly, we consider the additional factors outlined in Erazo because we are 

reviewing the admission of photographs. See 144 S.W.3d at 489. There are twelve 

photographs measuring about 8.5 inches by 11 inches. They are black and white. The 

475 U.S. at 570–72, and not the admissibility of photographs taken of an accused immediately after arrest. 

See Avila v. State, 15 S.W.3d 568, 574 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“[M]erely being 

subject to physical restraint is not the same as appearing in front of the jury restrained.”); see also Holbrook, 

475 U.S. at 567 (“Recognizing that jurors are quite aware that the defendant appearing before them did not 

arrive there by choice or happenstance, we have never tried, and could never hope, to eliminate from the 

trial procedures every reminder that the State has chosen to marshal its resources against a defendant to 

punish him for allegedly criminal conduct.”).
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pictures are neither gruesome nor do they involve naked bodies or bodies altered by an 

autopsy. We conclude these factors weigh in favor of admitting the exhibits. 

B. Summary

Having applied the foregoing factors, we conclude the trial court did not abuse its 

discretion by admitting the State’s Exhibit Nos. 2–13. See Ramirez, 815 S.W.2d at 

646–47 (“An abuse of discretion arises only when the probative value of the photograph is 

small and its inflammatory potential great.”). We overrule appellant’s sole issue. 

III. CONCLUSION

We affirm the trial court’s judgment. 

GREGORY T. PERKES

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 

30th day of August, 2013.