Updated October 25, 2021; Original Post: February 18, 2018
If you are facing charges of resisting arrest, you may be tempted to plead guilty because you think it’s a minor charge. However, there are several serious penalties associated with resisting arrest, ranging from jail time in your local county jail, fines, and fees up to $4,000 and the most damaging of all – the prospect of a resisting arrest conviction on your permanent criminal record. In this post, we’ll explain those penalties and show you how a knowledgeable criminal defense attorney can help you fight your resisting arrest charges.
How Texas Treats Resisting Arrest Charges
Under Texas law, an individual commits the offense of resisting arrest if he or she intentionally obstructs or prevents a peace officer from carrying out a search, arrest, or transportation of an individual, and uses force against the peace officer or another person.
Something important to note is that if you face resisting arrest charges in the Fort Worth, Tarrant County, or any other county in Texas, you are prohibited from using the defense of unlawful search or arrest. That’s right! It seems counter-intuitive, but Texas resisting arrest law is very clear: If you resist arrest because you believe the police are acting in a wrongful manner, you forfeit your right to use that as an argument for your legal defense.
So, what should you do if you believe you are being wrongfully arrested? If a police officer approaches you and begins to detain or arrest you and you know that you have done nothing wrong to warrant the arrest, you need to make sure you keep a low, compliant tone of voice and allow the officer to detain you or arrest you. This may seem very difficult to do under the circumstances, but you will only make your situation much worse if you begin to raise your voice and pull away or walk away. Many unlawful arrests have led to not only resisting arrest charges but Assault of a public servant charges because the accused becomes emotionally upset and as they pull away from the officer, it may cause the police officer to become more aggressive, which leads to more pulling. Pretty soon, the police officer is characterizing the encounter as an assault and now you are facing a 3rd degree felony with the prospect of prison time.
Key Takeaway = Don’t Resist The Officer Even If You Are Being Illegally Arrested!
Under Texas criminal law, a resisting arrest case is normally charged as a Class A misdemeanor.
A resisting arrest – deadly weapon can be charged as a third-degree felony charge if a deadly weapon was used to resist the search or arrest. Now, the mere presence of a deadly weapon at the time of a resisting arrest does not meet the definition of a resisting arrest – deadly weapon. The State of Texas will be required to prove beyond a reasonable doubt that the deadly weapon was used in the commission of the crime, not just present at the scene.
There are also several separate charges that often come along with resisting arrest. For example, you may be charged for evading arrest, which is intentionally or knowingly flee from a person you know is a police officer while that officer is attempting to lawfully arrest or detain you. This offense will result in a Class A misdemeanor charge punishable by possible jail time and fines and can be enhanced to a state jail felony for previous and similar convictions.
Evading arrest will be a third-degree felony if a watercraft or vehicle was used to flee the arrest, if a tire deflation device is used against the arresting officer, or if another person experiences serious bodily injury as a direct result of the flight.
A second-degree felony charge will apply if anyone dies as a direct result of the flight or if serious bodily injury is sustained due to a tire deflation device used against the officer.
Another related charge is failure to identify. State law requires that you provide your name, address, and date of birth to your arresting officer. Providing false information is either a Class C, B, or A misdemeanor, depending on the unique circumstances of the case. If you have an active warrant at the time you fail to identify, you can be charged with a class A misdemeanor. If you simply give a false name, you can be charged with a Class B misdemeanor Failure to Identify and if you just refuse to give your name at all, can be charged with a Class C Misdemeanor offense.
If you or someone else hinders the arrest of another by warning someone of impending arrest, harboring, or concealing another, or aiding another in escape, a Class A misdemeanor charge may result. The charge can be converted to a third-degree felony in certain cases.
Penalties That Come with Texas Resisting Arrest Charges
In our state, a second degree felony conviction can result in 2-20 years in prison and a maximum fine of $10,000.
A third-degree felony may result in 2-10 years in prison and a maximum fine of $10,000.
A state jail felony will result in incarceration for 180 days-2 years.
A Class A misdemeanor can result in up to one year in jail, a maximum fine of $4,000, or both.
A Class B misdemeanor carries the penalties of up to 180 days in jail, a maximum fine of $2,000, or both.
A Class C misdemeanor may result in a fine of up to $500.
What Happens When You Get Charged With Resisting Arrest?
If you have been arrested for Resisting arrest in Texas, police officers will take you into custody, process you through the Tarrant County jail or other local county jail and you will be brought before a magistrate judge to be arraigned. Upon being arraigned, you will be informed of the nature of your charges and a bond will be set. After you have bonded out of jail, you will have a series of court dates that you will likely be required to attend where your criminal attorney will be working to negotiate you a dismissal of your charges.
Prior to your court dates, your criminal defense lawyer should be able to provide you with police reports and other digital media evidence showing what the prosecutor is claiming to substantiate the charges. The best resisting arrest lawyers know that the prosecutor will claim to have a stronger case than they have.
Your criminal lawyer should look to point out all the weaknesses of your resisting arrest case and force the State of Texas to recognize they have the burden to prove the case beyond a reasonable doubt. Failure to prove every element of resisting arrest beyond a reasonable doubt will result in a not guilty verdict at trial. It may sometimes require your criminal attorney to push your resisting arrest case all the way to a trial setting before the prosecutor will truly review your case and do the right thing by treating you fairly. You need to make sure that your criminal defense law firm is committed to taking your resisting arrest charge as far as it need to go in the criminal justice system to ensure you are treated fairly.
Defenses To Resisting Arrest In Texas
If you have been charged with misdemeanor or felony resisting arrest, you owe to yourself to make certain you are being represented by an experience and aggressive criminal defense law firm that knows the law and has handled many resisting arrest cases with great results for their clients. Part of getting great results on a resisting arrest charge requires you and your criminal defense attorney examining legal defenses to the crime of resisting arrest. Let’s examine a few legal defenses that we have found are helpful in getting a resisting arrest charge dismissed:
Lacked Criminal Intent To Resist Arrest
For the State of Texas to convict you of the crime of resisting arrest, the prosecutor will have to prove beyond a reasonable doubt that you had the criminal intent to resist arrest or detention. In other words, what if you did not know that the person attempting to detain or arrest you was a police officer?
We have seen this happen on multiple occasions at local bars in Fort Worth, Texas. The music is playing loudly, and our client is enjoying drinks but maybe is a little loud. The bar sends an off duty or on duty police officer over to bring the customer out of the bar because they believe they are intoxicated. In the process of the police officer approaching the client, our client pulls away from the “officer” because they do not know who they are and why they are grabbing them. This is particularly relevant when the officer is in plain clothes. It is reasonable for someone to be suspicious of a man who claims to be a cop and starts to grab at you. In fact, it may be reasonable for someone to pull away in that set of circumstances. This situation illustrates that if the accused does not know they are dealing with a police officer, there is no crime of resisting arrest.
What if the police claim you resisted arrest but the actions you took were because the police officer was causing you pain by how he was handling you? We have seen these cases many times at TCU football games in Fort Worth, Texas. Fort Worth police officers patrol the area near Texas Christian University looking for anyone that might appear intoxicated. Many officers are notorious for slapping cuffs on someone and hurting them or yanking their arms behind them in a manner that causes severe pain. What if you had an involuntary response to the police officer’s action because of the pain? Once again, there would be a serious criminal intent issue that would prevent the State of Texas from being able to prove the case beyond a reasonable doubt.
“Force” Was Not Used Against The Police Officer
Finally, what if the police officer is claiming you used “force” in resisting him, but that force was passive or undefined. What do we mean by this? Many times, police officers will get upset with someone who is not moving or responding as quickly as they want so they will get angry with the arrestee and claim that their unwillingness to comply with their orders constitutes “passive” resistance. Force, as defined in the Texas Penal Code, infers actual aggressive or assertive actions by the accused against the officer to prevent his detention or arrest. Claiming the individual actively “passively” as a claim to resisting arrest is a weak argument by the police officer and very often will not constitute “force,” as required by Texas criminal law.
Can Resisting Arrest Charges Be Dropped?
Any type of criminal conviction, even for a misdemeanor charge, can result in serious consequences. In addition to the criminal penalties you face, you may have trouble securing a job, a loan, and certain licenses with a criminal record.
If you have been charged with resisting arrest in Texas, you need the help of a skilled Fort Worth criminal defense attorney. Your attorney will know which defenses are most likely to help in your case.
It may be possible for your resisting arrest charge to be dismissed. However, you should consult with a criminal defense attorney that has a proven track record with resisting arrest cases to determine your next move. The Hampton Law Firm is a team of Former Prosecutors with over 80 years of criminal law experience and over 500 criminal jury trials in Texas.
About the Author:
After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.