Resisting

Controversial law enforcement encounters happen every day across East Texas. The police are trying their best to enforce public order, but lately the public eye has been focused on those instances where the police take things too far. If you’ve been accused of Resisting Arrest in Texas, it is vital that you enlist the help of a dedicated defense attorney to review every aspect of the law enforcement encounter. There are plenty of instances when it is the police, and not a citizen, who escalate the physical portion of an altercation. When dealing with the police, the best practice is always civility, while respectfully using your right to remain silent.

If a citizen does physically impede the police, they will likely face stiff legal charges. Resisting Arrest, Search, or Transport is most often a Class “A” misdemeanor offense under §38.03 of the Texas Penal Code. The offense can be a felony of the third degree if the person charged used a deadly weapon while committing the offense. A Class “A” misdemeanor is punishable by up to a year in jail and a fine not to exceed $4,000. Third degree felonies are punishable by up to ten years in prison and no fewer than two years in prison, and a fine of up to $10,000 may be assessed. Worse than a resisting charge, a citizen may also be charged with assault of a public servant. 

A person commits an offense under the resisting statute if they intentionally prevent or obstruct a person they know is a peace officer or a person acting in a peace officer’s presence and at the officer’s direction from effecting an arrest, search, or transportation of the person or another by using force against the peace officer or another. 

It is no defense to prosecution under the law that the arrest or search was unlawful. Moreover, you can be convicted of resisting arrest regardless of whether you or another person were the targets for arrest by the police. Even though you can be charged for resisting arrest even when the arrest is unlawful, certain evidence may be suppressed at trial if law enforcement collected it from you as part of an illegal search or seizure. 

There are two noteworthy defenses employed in Resisting Arrest cases where resisting an officer is justified. These instances are found under §9.31(c) of the Texas Penal Code. 

Specifically, 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. 

The law reads that The use of force to resist an arrest or search is justified if, before the accused 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. 

The use of force is also justified when and to the degree the actor reasonably believes the force is immediately necessary to protect himself or herself against the peace officer’s use or attempted use of greater force than necessary. 

There is a small loophole under Texas law that many law enforcement officers do not appreciate. There is no such thing as Resisting Detention under Texas law. This leads to scenarios where someone resists, but they were not under arrest, being searched, or being transported. A resisting charge may not hold up in court if the suspect was only detained at the time of the incident. The government may look to remedy this loophole by charging a suspect with assault of a public servant, or interference with public duty. The same conduct can be criminalized, just under a different statute. 

Ultimately, an intricate review of the law enforcement encounter is required to prosecute or defend one of these resisting cases. The video evidence provided by bodycams and dash cams is a great equalizer that will help to either vindicate the police or protect the rights of the accused.