In the state of Texas, evading arrest and resisting arrest are considered two completely different offenses. While everyone, as a general rule, tries to avoid being arrested, both of these offenses occur in a situation where law enforcement is actively attempting to make an arrest when the individual either resist the arrest or tries to evade the officer. In this article, we’ll discuss how resisting arrest differs from evading arrest, and we’ll also discuss situations where you are legally allowed to walk away from an encounter with law enforcement.
It is important to note here that resisting or evading arrest using a motor vehicle is a completely different crime, as specified in Section 545.421 of the Texas Transportation Code.
How is Resisting Arrest Proven?
First of all, the government must prove that there was intent for both the crime of resisting arrest and the crime of evading arrest. Ultimately this means that if you did not intend to flee or resist, you cannot be guilty of either crime. If you were unaware that law enforcement was trying to arrest you, for example, if you assumed they were trying to get another person and not you, you can’t be found guilty of resisting arrest.
Texas Resisting Arrest Law
The definition of resisting arrest, per Section 38.03 of the Texas Penal Code, is as follows:
“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.”
Texas Evading Arrest Law
The definition of resisting arrest, per Section 38.04 of the Texas Penal Code, is as follows:
“A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.”
Resisting vs. Evading Arrest
If you have been charged with resisting arrest, you must have used force against the law enforcement officers trying to arrest you. It is important to note that even if the arrest was an unlawful arrest, you can still be charged and convicted of resisting.
In the case of evading arrest, you do not need to use force against the arresting officers, but the arrest must be a lawful arrest. If the arrest was deemed an unlawful arrest, you can’t be convicted of evading arrest.
Is Resisting Arrest Ever Justified?
Yes. There are two situations that the Texas Penal Code Section 9.31(c) outlines that would justify 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.”
When Can You Walk Away?
There are situations where you are within your rights to walk away from a police officer and their questions. If a police officer tells you that you are free to go, or free to leave, you should not be arrested when you exercise your right to walk away. Unfortunately, this isn’t always the case.
If the officer clearly states that you are being detained or arrested, the law states that you are not free to walk away. If you do, you will likely be arrested for evading arrest. If the arrest was not legal, you can’t be convicted of evading arrest, but you’ll still go through the process of being arrested, as the legality of the arrest will come into question later.
Punishments for Resisting Arrest
Currently in Texas, a conviction of resisting arrest will result in a Class A misdemeanor. The exception would be if the state’s attorney can prove that you used a deadly weapon in the resisting attempt. In that case, the conviction would result in a 3rd-degree felony.
Punishments for Evading Arrest
Currently in Texas, a conviction of evading arrest will result in a Class B misdemeanor at the minimum. The punishments will get more severe if a vehicle was used in the evasion, if the arrested party has been previously convicted of evading arrest, or if someone suffers severe bodily injury or death as a result of the crime.
If you or someone you know has been convicted of resisting arrest or evading arrest in the Dallas, Texas area, contact the Law Offices of RJ Harber for a free, confidential consultation. You may contact us by phone at (214) 389-1189 or through our online contact form.