Resisting Arrest

Have you or a family member been charged with Resisting Arrest? If you have been charged with Resisting Arrest in Tarrant, Dallas, or Parker Counties, you will probably be facing a misdemeanor charge. However, Resisting Arrest can potentially be a third degree felony as well. The statute on Resisting Arrest is short. There is not much to it, really. It can be something of a catch-all, because of the way it the statute reads. That means sometimes it can be easy to get charged with this crime. Sometimes people feel a sense of outrage and disbelief. You may not understand why you are being charged. Many people feel wronged, violated. Many people get charged with mistakes. Police officers can make mistakes, just like any of us. If it takes you getting arrested to realize this, it can a hard lesson to learn. Here is something very important about the criminal justice system: the amount of evidence it takes to arrest is probable cause. The amount of evidence it takes to convict is beyond a reasonable doubt. And there is a huge gulf between the two. Call me and we can talk about exactly what happened to you. I will consult with your free of charge. I am happy to discuss your criminal charge with you, develop a strategy for your defense, and help you out of this mess.       

What is the Law on Resisting Arrest in Texas?

Texas law provides that Resisting Arrest can be either a misdemeanor or a felony. Generally speaking, it is a Class A misdemeanor unless a deadly weapon is alleged. We will discuss what deadly weapon means in great detail. It is found in Chapter 38 of the Texas Penal Code, which is entitled “Obstructing Governmental Operations.” It is fairly similar to the criminal charge of Evading Arrest. In fact, there are many circumstances that can and do arise in which either crime could be charged. Depending on the severity and nature of the resistance, there is also potential overlap with Assault of a Public Servant, which is a more serious criminal charge Here is the Texas law on Resisting Arrest.           

Section 38.03. Resisting Arrest, Search, or Transportation.

  • A person commits an offense if he 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.
  • It is no defense to prosecution under this section that the arrest or search was unlawful
  • Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor.
  • An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search.

All of the charges in bold are important terms, and we will break those terms down to better understand what this charge means. Basically, if you intentionally prevent the police from arresting you or conducting a search or transporting you, you can be charged with resisting arrest. This charge is both really simple and really vague. Charges that are simple and vague, and that don’t have many moving parts to them, generally result in wide and varied scenarios in which people get charged. What does that mean? It means that many of these charges are bullshit. It can be very easy to get this charge. There is one very important question, and the statute doesn’t really provide much guidance. What level does the intentional prevention or obstruction have to rise to for there to be an arrest and a charge?            

Example: say that you get pulled over for speeding. License and registration, please. When the police officer returns to your car, you have an outstanding traffic ticket. You forgot to take care of it, and now it has gone to warrant. The police officer takes your license to his squad car and comes back. Your fears have been realized because the warrant came up and you are being asked to exit the vehicle. You do. The officer starts to reach for your hand to cuff you. You back up. You have never been arrested before and you think that if you just explain yourself, you may be able to go home. You back up and the officer approaches. You are yelling and pleading. The officer grabs your arm and you yank it away. The next think you know you are up against the hood of your car and the cuffs are strangling your wrists. So there you are, getting arrested. Now you are in the back of the police cruiser. Total bummer, right? There goes your Friday night. Possibly your Saturday night as well. Now, in addition to the very uncomfortable arrest, you are getting charged with Resisting Arrest.           

Does argument or disagreement amount to Resisting? If so, at what point? What is the threshold? At what point does Resisting Arrest become Evading Arrest? These are questions that cannot easily be answered. The reality is that the decision to charge you with one crime or the other is up to the discretion or the police officer who arrested you, and later, to the District Attorney’s Office. In Fort Worth, the police officer who arrests you will file the case with the D.A. Your case will then be prosecuted by Tarrant County. All the cases field by the different cities of Tarrant County: places like Arlington, Keller, Mansfield, they all end up in the Tim Curry Justice Center in downtown Fort Worth.

What is a Deadly Weapon?  

A deadly weapon can turn Resisting Arrest into a felony. Deadly Weapon is very broadly defined.[i] Essentially anything capable of inflicting serious bodily injury on someone can be considered a deadly weapon. That includes most objects in nature if they are wielded in the right way. Here is the actual definition from the Texas Penal Code:

Deadly Weapon means:

  • A firearm or anything manifestly designed, made, or adapted for the purposes of inflicting death or serious bodily injury; or
  • Anything that in the manner of its use or intended use is capable of causing death or serious bodily injury

So, literally, anything can be a deadly weapon if it could kill someone if you threw it at their head hard enough or struck them with it. An allegation of a deadly weapon always increases the penalties of the criminal charge. If there is an allegation that you used a deadly weapon while Resisting Arrest, that will bump the offense to a third degree felony. A third degree felony carries a potential range of punishment of between two and ten years in the Texas Department of Corrections and up to a $10,000 fine.

What Does Unlawful Search Mean?

The Fourth Amendment to the United States Constitution requires, with a few exceptions, that police have a warrant to search a person’s home.[ii] It requires either a warrant or probable cause to search a person’s vehicle.[iii] The Fourth Amendment also requires a warrant or probable cause to arrest. The Founding Fathers gave us many crucial rights to be free of police interference in our lives and our privacy. The U.S. Supreme Court has interpreted those rights and established that although our rights in our homes are paramount, our rights in our vehicles are not as important. This is applicable to this discussion only in the sense that regardless of whether or not the search is lawful or unlawful, or the arrest is lawful or unlawful, it doesn’t matter for Resisting Arrest. These days many people are aware of their rights, and they will resist a search or an arrest if they feel like it is unlawful. Even if a person is right and the arrest or search is without probable cause, that is irrelevant to the statute, because lawfulness of arrest or search is not a defense.  

Do You Need to Talk to a Criminal Defense Lawyer?

If you have been arrested, charged, or are waiting to be charged, you need to consult with a criminal defense attorney and develop a plan to combat this allegation and get on with your life. Call me and I will walk you through the criminal justice process step by step. I will answer all of your questions and point out ways in which your criminal charge can be challenged, and how we might prevail. It is very important to find the lawyer who you like dealing with and who you trust. Call me and let’s talk about your case.              

[i] Tex. Pen. Code. Ann. Section 1.07(17).

[ii] U.S. Const., amend. IV   

[iii] Carroll v. United States, 267 U.S. 132 (1925). The Supreme Court first carved out an exception to the warrant requirement long ago. This case established that a search warrant is not required as long as there is probable cause to believe that evidence or contraband is located in the vehicle.

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