RESISTING ARREST UNDER TEXAS LAW
The charge of resisting arrest is defined in the Texas Penal Code. According to Section 38.03 of the Texas Penal Code, a person can be convicted of resisting arrest when he or she:
intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
You can be convicted of resisting arrest even if you believed at the time the arrest was unlawful so long as you knew the person you resisted was a peace officer. What’s more, you can be convicted of resisting arrest regardless of whether you or another person were the targets for arrest by the police.
Finally, it’s important to know that resisting arrest is an entirely different crime than evading arrest and detention.
RESISTING ARREST VS. EVADING ARREST AND DETENTION
While resisting arrest and evading arrest sound similar, they are different crimes that apply in different situations. Some legal defenses are applicable to one charge but not the other. If you have questions about the charges you face, contact a criminal defense attorney to help you understand what you have been charged with.
If you are facing charges for resisting arrest, you must have used some measure of force against the peace officer trying to arrest you or another person. That distinguishes the crime of resisting from that of evading arrest and detention because evading does not require the use of force for a conviction.
Another major difference between the two relates to whether or not the arrest was lawful. It is always illegal to use force when resisting arrest; in other words, you can be charged with a crime if you resist even an unlawful arrest. However, the underlying arrest must be lawful for a conviction of evading arrest and detention.
WHAT THE STATE MUST PROVE FOR A RESISTING ARREST CONVICTION
Being charged with resisting arrest does not guarantee that you will be convicted of the crime. The prosecutor in your case will still be required to prove the case beyond a reasonable doubt to obtain a conviction. That’s where your defense attorney comes in. If your attorney can convince a jury of your peers that even one of the elements of the crime has not been proven, you will be acquitted. To obtain a resisting arrest conviction, the prosecutor in your case must show that
- you obstructed the office by force; and
- you did so intentionally.
OBSTRUCTION BY FORCE
It’s not enough to simply avoid being arrested or detained to be convicted of resisting arrest. You must be found to have forcefully obstructed or prevented the officer from doing his or her duty.
Examples include actions like pulling the officer away from the person they were attempting to arrest or brandishing a firearm in an attempt to force the officer to stop.
INTENT
To be convicted of resisting an arrest, the state will also have to show that you intended to do so. That means even if you made physical contact with an officer that obstructed an arrest attempt, you wouldn’t be guilty of resisting arrest if that contact was unintentional.
PENALTIES FOR A RESISTING ARREST CONVICTION
In most cases, resisting arrest is treated as a Class A misdemeanor under Texas law. This is the highest level of misdemeanor before a charge becomes a felony. For a class A misdemeanor, a conviction carries a maximum jail sentence of 1 year. In addition to that, you may also face a maximum fine of no more than $4,000.
In some cases, a resisting arrest charge can be upgraded to a felony. If you are convicted of resisting arrest in which a deadly weapon was used, your charge will be upgraded to a third-degree felony. A third-degree felony carries a potential prison sentence in the Texas Department of Corrections for no less than 2 years and no more than 10 years. Additionally, felony resisting arrest carries a potential fine not to exceed $10,000.
COMMON LEGAL DEFENSES
The potential defenses in a resisting arrest case can be fairly limited, given that it is unlawful to resist even in cases where the arrest was unlawful. However, there are two instances where resisting arrest is justified and can lead to an acquittal. According to Texas Penal Code Section 9.31 (c), you are justified in resisting being arrested:
- if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
- when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.
In other words, it is a valid defense to a charge of resisting arrest if you defend yourself in a situation where the officer uses unnecessary force before you offer any resistance whatsoever.