Packingham Social Media Ban for Sex Offenders

SCOTUS Declares Social Media Ban for Sex Offenders Unconstitutional

By | Sex Crimes | No Comments

Packingham Social Media Ban for Sex OffendersIn today’s world Internet access has become virtually unlimited. And, with new technology come new problems. These problems have led the Supreme Court to address the challenge modern day Internet access has created for the First Amendment in the landmark case, Packingham v. North Carolina. In Packingham, the Court was asked to determine whether a North Carolina law, which makes it a felony for a registered sex offender to access a social media-networking site, violates the First Amendment’s free speech clause.

North Carolina Imposed a Social Media Ban for all Registered Sex Offenders

In 2002, Lester Packingham, a 21-year-old student, pled guilty for taking indecent liberties with a child after having sex with a 13-year-old girl. As such, Packingham was required to register as a sex offender. However, in 2010 Packingham posted to his personal Facebook account thanking God after he received a dismissal for a traffic ticket. This post was observed by a police officer and Packingham was ultimately convicted for violating the social media ban for sex offenders. After making it all the way to the United States Supreme Court, Packingham’s conviction has now been overturned.

Supreme Court holds that Banning Sex Offenders from Social Media Violates the First Amendment

In overturning Packingham’s case, the Court ruled the North Carolina law to be an impermissible restriction of lawful speech. The Court has consistently held that “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” As such, the Court ruled that one of the most fundamental places to exchange views is cyberspace—particularly social media platforms. Social media has evolved and formed a stage for many topics protected by the First Amendment, including human thought. It has evolved so much so that “seven in ten American adults” now use at least one form of social media. Thus, the Court reasoned that while it may have once been difficult to determine which “places” are important for the exchange of ideas, it is now clear.

The Internet allows people access to vast amounts of information, which people need to thrive in modern society. North Carolina prohibited access to this information in an effort to protect children, but they ended up preventing Packingham from gaining access to large amounts of information — information unlikely to further sex crimes. As a result, the Court agreed that sex crimes involving children are repugnant, but it explained that even a valid government interest cannot escape all constitutional protections. The Court further noted that “[e]ven convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.” Thus, the Court determined that North Carolina did not meet its burden to show why the overly broad law was necessary to serve its purpose of protecting children and subsequently declared the law unconstitutional.

For further analysis, see: Amy Howe, Opinion analysis: Court invalidates ban on social media for sex offenders, SCOTUSblog (Jun. 19, 2017, 1:52 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-invalidates-ban-social-media-sex-offenders/ 

Texas Cyberbullying Law | David's Law

Texas’ New Cyberbullying Law | Cyberbullying Offense 9/1/17

By | Legislative Update | No Comments

David’s Law | New Cyberbullying Law in Texas

Texas Cyberbullying Law | David's LawOn June 9, 2016, the Governor signed SB 179 into effect—otherwise known as David’s law. David’s law, named after David Molak, a 16 year-old boy who committed suicide after relentless cyberbullying, was created in an effort to punish such reprehensible actions. In 2011, lawmakers added the term “cyberbullying” to the Texas Education Code under the bullying section. However, this provision did not create any legal punishment for cyberbullying. It only required school districts to develop their own policies to prevent and intervene in such cases. David’s law changes this by amending the Education Code regarding bullying to include cyberbullying as a criminal offense.

Full Text of new Cyberbullying Law

What is Bullying?

Bullying is a significant act(s) by one or more students directed at exploiting another student and involves any verbal or written statement, electronic communication, or physical act that results in:

  • physical harm to a student;
  • damaging a student’s property; or,
  • causing a student reasonable fear of harm.

Bullying also occurs when there is ongoing, severe, and persistent statements or physical acts that create an intimidating, threatening or abusive educational environment for a student. Furthermore, cyberbullying includes such conduct that substantially interferes with a student’s education, substantially disrupts school, or infringes the rights of the victim at school.

What is Cyberbullying?

Cyberbullying occurs when a person uses any electronic communication device to engage in any type of bullying described above. Relevant communications include, for example, statements made through social media outlets or text messages.

Where does Bullying/Cyberbullying have to Occur?

David’s law applies to bullying that takes place on school property, during any school-sponsored or school-related activity, or in a vehicle operated by the school district (i.e. a bus). Additionally, David’s law includes cyberbullying that occurs off campus and outside of a school-sponsored or related activity if:

  • it interferes with a student’s educational opportunities; or,
  • substantially disrupts the orderly operation of a classroom, school, or school-sponsored or school-related activity.

What are the School’s Responsibilities?

Schools must install a way for students to report bullying/cyberbullying anonymously. Additionally, upon receiving a report, school officials must report the incident to the alleged victim’s parents within three business days and to the alleged bully’s parents within a reasonable time.

Furthermore, under David’s law a school may, but has no legal obligation to, report conduct constituting assault or harassment to the police. A report may include both the name and the address of each student believed to be involved.
Punishment

Cyberbullying will be classified as a Class B misdemeanor beginning September 1, 2017. However, the offense becomes a Class A misdemeanor, if the offender has been previously convicted of cyberbullying or if the bullying was done to a victim under 18 years-old with the intent that the minor commit suicide or self inflict serious injury to themselves. Additionally, a student charged with cyberbullying can face administrative sanctions such as expulsion or alternative schooling.

A Class B misdemeanor is punishable by a fine not to exceed $2,000 and confinement in jail for a term not to exceed 180 days. A Class A misdemeanor is punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year.

Texting While Driving Law Texas

Texting While Driving in Texas | Texas’ New Traffic Law

By | Traffic Offenses | No Comments

Texting While Driving Law TexasVirtually every state in America has a statewide law banning the use of cell phones or texting while driving. Until recently, Texas has had minimal restrictions on cell phone usage while driving. Such restrictions include:

  • drivers with learner’s permits are prohibited from using handheld cell phones in the first six months of driving;
  • Drivers under the age of 18 are prohibited from using wireless communications devices;
  • school bus operators are prohibited from using cell phones while driving if children are present; and
  • in school zones, all drivers are prohibited from texting and using handheld devices while driving.

However, after many failed efforts, Texas has finally passed a law banning the use of handheld devices in certain situations, namely texting. On June 6, 2017, Governor Greg Abbott signed HB 62, which makes using a portable wireless communication device (i.e. a cell phone) to read, write, or send an electronic message (i.e. a text) while operating a motor vehicle a misdemeanor offense.

Notice is Required to be Posted by DPS of the New Ban

The Texas Department of Transportation will be required to post signs on interstate and U.S. highways entering the state indicating that texting while driving is prohibited and carries a fine. Additionally, the new law requires that the driver’s license test cover knowledge about the effects of texting while driving or other actions that constitute distracted driving.

What is the Punishment for Texting While Driving in Texas?

Under the new law, the sole offense of “texting while driving” is not an arrestable offense. A driver’s first offense will be punishable by a fine between $25 and $99, and any subsequent offenses will carry a fine between $100 and $200. Additionally, the Department of Motor Vehicles is not authorized to assign points to a driver’s license for a “texting while driving offense.”

However, if at trial for the offense it is shown that the defendant caused the death or serious bodily injury of another person, the offense will become a Class A misdemeanor punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year. Additionally, if the conduct constituting the offense is also a violation of another law, the defendant may be prosecuted under either law, or both.

Possible Defenses to a Texting While Driving Charge:

A driver may have a defense to prosecution if the driver was:

  • not moving;
  • using a hands-free device, including voice-operated technology;
  • reporting illegal activity or summoning emergency help;
  • reading an electronic message that the person reasonably believed concerned an emergency;
  • relaying information to a dispatcher or digital network through a device affixed to the vehicle as part of the driver’s job;
  • activating functions to play music; or
  • using a GPS function.

Additionally, the law does not apply to drivers of authorized emergency or law enforcement vehicles acting in an official capacity or to drivers licensed by the Federal Communications Commission operating a radio frequency device other than a portable wireless communication device.
Furthermore, the law prohibits the search and seizure of a driver’s cell phone unless authorized by another law.

Concerns Regarding HB 62 (Texting While Driving Law)

Supporters of the law believe it will increase safety and reduce distracted driving incidents, while opponents see it as an overreach of the government into citizen’s lives. Some fear the law will allow law enforcement to gain more power to stop citizens by mistaking a person’s legal actions for texting. However, despite these reservations, this law takes effect on September 1, 2017, preempting local ordinances, and applies only to offenses committed on or after that date.

Links to the full text of the bill:

http://www.legis.state.tx.us/tlodocs/85R/billtext/pdf/HB00062F.pdf#navpanes=0
http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=85R&Bill=HB62

Co Defendant Suppression New Trial Arizmendi

When a Co-Defendant’s Wins a Suppression but You Already Pled Guilty

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“Buyer’s Remorse”—Rolling the Dice on Plea Deals

Co Defendant Suppression New Trial ArizmendiThe Court of Criminal Appeals recently handed down an opinion concerning a motion for a new trial based on evidence obtained from a co-defendant’s motion to suppress hearing. The issues facing the Court were whether the defendant, who had recently entered into a plea deal, satisfied the requirements for granting a new trial on the basis of such evidence; and, whether the defendant’s ineffective assistance of counsel claim was properly brought before the court.

State of Texas v. Arizmendi (Court of Criminal Appeals, 2017)

The Facts — Trial Court Granted Defendant’s Motion for New Trial in the “Interest of Justice.”

Rosa Arizmendi, Defendant, was convicted (after pleading guilty) for being in possession of more than 400 grams of methamphetamine with intent to deliver after officers stopped her co-defendant’s vehicle, of which she was a passenger. Both Defendant and Co-defendant were arrested as a result of the stop. On April 28, 2015, Defendant entered into a plea deal, receiving twenty-five years confinement and a $5,000 fine. Additionally, Defendant voluntarily waived her right to appeal.

Six days later, a hearing for a motion to suppress was held regarding Co-defendant’s case. The video of the stop was introduced into evidence, and the arresting officer testified, noting that he initially noticed the vehicle because it looked clean and subsequently stopped the vehicle for crossing over the while line delineating the roadway from the improved shoulder. However, the trial court concluded that Co-defendant’s vehicle was not in any violation of Texas law. The Court explained that the vehicle only came in close proximity of and possibly touched the inside portion of the white line, which is not a violation of Texas law. Thus, granting Co-defendant’s motion. See, State v. Cortez, 501 S.W.3d 606 (Tex. Crim. App. 2016).

Based on this information, Defendant filed a motion for new trial, “in the interest of justice,” alleging the verdict in her case was contrary to the law and evidence. Defendant’s motion referred to Co-defendant’s hearing alleging a lack of probable cause or other lawful reasons for the stop. Furthermore, Defendant asserted the officer’s testimony was new evidence not available at the time of Defendant’s guilty plea. Defendant’s counsel further asserted that because she failed to tell Defendant that a motion to suppress was an option, Defendant received ineffective assistance.

The State argued that Defendant waived her right to appeal as a result of the plea deal and had not presented any new evidence likely to result in a different ruling. Noting, all evidence could have been discovered had Defendant been diligent. The State further asserted that Defendant was merely suffering from “buyers remorse.” Moreover, the State contended Defendant’s ineffective assistance claim was not apart of the original motion for new trial and, therefore, was untimely. However, the trial court rejected these arguments and granted Defendant’s motion for new trial “in the interest of justice,” and the State appealed.

The Court of Appeals Affirmed the Trial Court’s Decision — Holding Defendant Satisfied the Requirements for Granting a New Trial Based on Newly Discovered Evidence.

On appeal the State contended that the trial court abused its discretion in granting Defendant’s motion and further reiterated its previous assertions.

The Court of Appeals, however, rejected the State’s arguments. The Court held Defendant’s motion was not barred because the trial court implicitly granted Defendant permission to appeal when it set Defendant’s motion for hearing. The Court also determined Defendant did, in fact, present new evidence. The video of the stop did not contain audio and, therefore, the testimony was new because it was not available at the time of Defendant’s plea. Accordingly, since the Court found there was new evidence they declined to rule on the ineffective assistance claim and affirmed the trial court’s ruling.

The Court of Criminal Appeals Reversed and Remanded — Holding Defendant did not Satisfy the Requirements for Relief.

The State appealed again and the Court of Criminal Appeals reversed the lower courts’ decisions. Here, Defendant pled guilty pursuant to a plea deal and after learning of her co-defendant’s favorable outcome Defendant filed a motion for new trial. The Court concluded that Defendant’s assertions were without merit because her failure to discover “new evidence” was a result of her own lack of due diligence. Furthermore, the “new evidence” Defendant asserts was either cumulative, collateral, or would not have brought about a different result.

To obtain relief the Court noted Defendant must satisfy the following four-prong test:
• The newly discovered evidence was unknown or unavailable to Defendant at the time of trial;
• Defendant’s failure to discover or obtain the new evidence was not due to the defendant’s lack of due diligence;
• The new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and,
• The new evidence is probably true and will probably bring about a different result in a new trial.

Defendant asserted the following as newly discovered evidence:
• The trial court’s ruling on Co-defendant’s motion to suppress;
• The testimony of the arresting officer at Co-defendant’s suppression hearing; and,
• The arresting officer’s statement about Defendant’s vehicle being a clean vehicle.

First, the Court explained that the trial court’s ruling on the motion to suppress was not evidence; it was only a legal determination. And, furthermore, even if it was considered evidence Defendant’s failure to discover was due to her own lack of due diligence. Second, the officer’s testimony was evidence, but aside from the testimony regarding the clean vehicle, it was merely cumulative and Defendant had access to the video, which conveyed the very same facts as the testimony. Furthermore, the Court determined the officer’s testimony regarding the clean vehicle was collateral, at best. The Court explained that the officer’s subjective intent was irrelevant to the ruling. Moreover, Defendant could have sought a police report or even filed her own motion to suppress to obtain such evidence—just as her co-defendant did. Finally, the Court concluded that Defendant’s ineffective assistance claim was not properly before the court because it was not made within thirty days of the judgment and, therefore, was untimely.

Thus, all evidence Defendant asserts as “new” was either cumulative, collateral, or would not have brought about a different result. As such, the Court reversed the lower courts’ decisions and remanded with instructions to reinstate Defendant’s judgment and sentence.

This case prompted two concurring opinions and a dissent. See below.

Arizmendi Hervey Concurrence
Arizmendi Newell Concurrence
Arizmendi Alcala Dissent

Takeaways

It is paramount that defense attorneys review all evidence and timely seek any additional evidence that may be relevant to a client’s case. Moreover, it is crucial for attorneys to provide clients with all possible options and outcomes before entering into a plea deal. Here, Defendant had all the same options as her co-defendant; however, Defendant was not properly counseled and, consequently, Defendant will spend twenty-five years in prison while her co-defendant remains free.

Michael Morton Act In Re Powell

Court Rules on Discovery to Clients under the Michael Morton Act (39.14)

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May a Court Order that an Attorney Can Provide Copies of Discovery to a Client Pursuant to the Michael Morton Act?

Michael Morton Act In Re PowellThe Court of Criminal Appeals recently handed down an opinion on a petition for writ of mandamus in regard to a discovery dispute arising out of Article 39.14 of the Texas Code of Criminal Procedure —otherwise known as the Michael Morton Act. The central issue facing the Court was whether the relator (a party who has standing and on whose behalf a writ of mandamus is petitioned for by the state as plaintiff) satisfied the criteria to justify mandamus relief.

See the full opinion in In re Powell v. Hocker (NO. WR-85,177-01)

The Facts—Trial Judge Granted Defendant’s Motion to Release Discovery.

Ellen Wilson, the real party of interest, was charged with misdemeanor DWI in the County Court at Law in Lubbock, Texas. Wilson’s attorney obtained discovery pursuant to Article 39.14 and filed a motion to “release” Wilson from the prohibition contained in subsection (f) of the statute. Subsection (f) of Article 39.14 permits a defense attorney to “allow a defendant . . . to view the [discovery] information provided under this article,” but the defense attorney “may not allow” the defendant “to have copies of the information provided[.]

In the brief filed in support of the motion, Wilson’s attorney prayed that the County Court at Law would “permit defense counsel to give her a properly redacted copy of the requested items of the State’s evidence.” The brief did not maintain that Wilson had been unable to “view” the discovery in the attorney’s possession, as the statute expressly permits. Rather, it asserted that it was important for Wilson to be able to obtain her own copies in order to effectively help counsel prepare her defense. The trial judge granted Wilson’s motion, but stayed the effect of his ruling pending the State’s application for writ of mandamus.

The Court of Criminal Appeals Conditionally Granted Mandamus Relief—Directing the County Court at law to Rescind its Order Permitting Defense Counsel to Provide Defendant a Copy of the Discovery Materials that were Provided by the State Pursuant to Article 39.14.

In order for a court to determine whether mandamus relief is appropriate, the relator must establish two criteria. State ex rel. Young v. Court of Appeals for the Sixth Dist., 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). The relator must demonstrate that he has no adequate remedy at law to rectify the alleged harm. Id. Additionally, the relator must have a clear right to the relief sought. Id. In other words, the relator must show that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. Id.

The Court determined that the State had no right to appeal Respondent’s order, which permitted trial counsel to provide the real party of interest with a copy of the discovery materials. More notably, Respondent did not seriously contest this issue. As such, the Court held the first criteria to be satisfied for mandamus relief.

Next, the Court determined the act was ministerial in nature. An act may be deemed “ministerial” when “the facts are undisputed and, given those undisputed facts, the law clearly spells out the duty to be performed … with such certainty that nothing is left to the exercise of discretion or judgment[,]”—even if a judicial decision is involved. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App.1994) (citations omitted). Furthermore, the Court determined this rule extends to cases of first impression.

The Court found Article 39.14 to be clear, unambiguous, and indisputable. Subsection (f) of the statute expressly and unequivocally prohibits the attorney, or her agent, to “allow” the defendant “to have copies of the information provided[.]” Respondent argued that Subsection (f) only speaks to whether the defendant’s attorney may supply him with copies of the discovery materials; it does not prohibit a trial court itself from providing copies. The Court rejected this argument because not doing so would circumvent the unqualified prohibition in subsection (f).

Next, Respondent argued that subsection (e) contemplates scenarios when a trial court may order disclosure of such materials. Subsection (e) expressly prohibits “the defendant” from personally disclosing discovery material to a third party. Respondent argued that this prohibition seems to assume that the defendant would have copies of those materials in the first place to disclose. The Court rejected this argument explaining that a defendant could “disclose” the substance of discovery materials to a third party by memory, having been allowed to “view” them pursuant to Subsection (f).

Rejecting all of Respondent’s arguments, the Court determined that the trial court lacked authority to enter an order that effectively abrogated Article 39.14. As such, the Court conditionally granted mandamus relief directing the County Court at Law to rescind its order.

This opinion solidifies what we already knew about Article 39.14 and have been telling clients all along – defense attorneys MAY NOT provide discovery materials to our clients.  And now, not even if the trial court orders it.

Terry Stop Officer Pat Down Search

“Acting Suspicious” is Not Enough to Justify a Pat Down Search

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Does an Officer’s Testimony That a Person was “Acting Suspicious” Establish Reasonable Suspicion to Support a Terry Stop?

Terry Stop Officer Pat Down SearchThe Fifth Circuit Court of Appeals recently handed down an opinion concerning the reasonable suspicion standard required for law enforcement officers to conduct a Terry stop—an exception to the warrant requirement. The issue facing the Court was whether merely “acting suspicious” is enough to establish reasonable suspicion to justify a law enforcement officer to initiate a Terry stop.

United States v. Monsivais, 848 F.3d 353 (5th Cir. 2017)

The Facts — District Court Found the Terry Stop to be Lawful Based On the Defendant’s Demeanor, Remarks, and for Officer-safety Reasons

While on patrol in a marked police car, two officers observed Monsivais walking down the side of the I-20 interstate away from an apparently disabled truck. The officers stopped in front of Monsivais and activated the car’s emergency lights in order to ask Monsivais if he needed roadside assistance. As Monsivais approached, he ignored the officers and walked past their patrol car. At this point, the officers exited their vehicle, and asked Monsivais where he was going and if he needed any help. Monsivais told the officers he was heading to Fort Worth (even though his vehicle was pointed towards Abilene). During questioning, Monsivais appeared nervous and repeatedly placed his hands in his pockets; however upon the officer’s request, Monsivais removed his hands. Additionally, Monsivais responded politely to all of the officers’ questions. After approximately four minutes, one of the officers advised Monsivais that he was going to pat Monsivais down for weapons because of his behavior, inconsistent statements and for officer safety reasons. Shortly thereafter, Monsivais told the officer that he had a firearm in his waistband. The officer seized the firearm and Monsivais was later charged with possession of a firearm while being unlawfully present in the United States.

Monsivais filed a motion to suppress the firearm and other evidence, arguing that the officer violated the Fourth Amendment because he did not have reasonable suspicion to believe Monsivais was involved in criminal activity when he detained him. The district court denied Monsivais’ motion to suppress, holding only that the “consensual encounter was transformed into a lawful Terry frisk due to the Defendant’s demeanor, remarks, and for officer-safety reasons.”

The Court of Appeals Reversed the District Court’s Decision—Holding the Officers Lacked a Basis to Reasonably Suspect Monsivais of a Criminal Act

The Court first determined that the officer seized Monsivais for Fourth Amendment purposes when he told Monsivais that he was going to pat him down. At this point, the officer converted the roadside assistance “welfare check” into an investigative detention—otherwise known as a Terry stop.

“The Fourth Amendment generally requires officers to obtain a warrant before searching or seizing an individual.” However, pursuant to a narrow exception announced in Terry v. Ohio, 392 U.S. 1, 88 (1968), police officers may briefly detain a person for investigative purposes if under the totality of relevant circumstance they can point to “specific and articulable facts” that give rise to reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime. United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014).

Here, the Court found that while Monsivais’ behavior might not have been typical of all stranded motorists, the officers could not point to any specific and articulable facts that Monsivais had committed, was committing, or was about to commit a crime before seizing him.

The court explained that Monsivais’ nervous demeanor alone was insufficient to create reasonable suspicion of criminal activity in order to justify a Terry stop. In fact, the Court gives little or no weight to an officer’s statement that a suspect appeared nervous. United States v. Portillo–Aguirre, 311 F.3d 647, 656 (5th Cir. 2002). Moreover, the Court held that evidence of Monsivais placing his hands in his pocket is of little significance. The Court noted that any number of people walking down the street might have their hands in their pockets. Additionally, the Court determined there were no inconsistencies in Monsivais’ story; and, even if there were, the inconsistencies would not connect Monsivais with any reasonably suspected unlawful conduct. Moreover, Monsivais’ choice to ignore the officers’ presence by merely walking past them, not fleeing, did not give rise to criminal activity.

In conclusion, the officer testified that he never suspected Monsivais was involved in any criminal activity, but rather that Monsivais was just acting “suspicious.” As such, the court found that the officer seized Monsivais without reasonable suspicion and that the evidence obtained from the unlawful seizure should have been suppressed.

Resisting Arrest Unlawful Arrest Texas

May a Person Resist an Unlawful Arrest in Texas?

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Resisting Arrest: How is it defined under Texas law?

Resisting Arrest Unlawful Arrest TexasIn general, resisting arrest occurs when a person attempts to interfere with a peace officer’s duties. Section 38.03 of the Texas Penal Code defines resisting arrest as: a person who 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:

  • Effectuating an arrest;
  • Carrying out a search; or
  • Transporting a person accused of a crime.

Resisting arrest requires the person to have used force against the arrest, but it does not require the officer to be acting lawfully in making the arrest. To be guilty of resisting arrest, the force need not only be directed at or toward the officer but is also met with any force exerted in opposition to, but away from the officer, such as a simple pulling away. Thus, even small uses of force can give rise to a charge of resisting arrest. However, non-threatening statements of disagreement with the officer’s actions usually are not enough to qualify as resisting arrest.

Some examples of resisting arrest include:

  • Preventing a cop from handcuffing you;
  • Struggling against an officer who is trying to arrest you; and
  • Engaging in violent action against the officer, like punching, kicking or inflicting harm with a weapon

Can You Resist an Unlawful Arrest in Texas?

One of the most important cases on this point is Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

What Ford provides, in short, is that you may not resist an arrest—whether lawful or unlawful. Historically, American citizens were legally entitled to use reasonable force to resist an unlawful arrest. Several states have now eliminated – either by statute or by judicial decision – the common law right to resist an unlawful arrest. Section 38.03 of the Texas Penal Code eliminated this right. Furthermore, subsection (b) of Section 38.03 specifically states it is no defense to prosecution that the arrest or search was unlawful.

In Ford, the Court held “the elimination of the common law right to resist arrest reflects a growing realization that the use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned.” The Court reasoned that the line between an illegal and legal arrest is too fine to be determined in a street confrontation; it is a question to be decided by the courts. Furthermore, the Court has concluded that by limiting the common law right to resist an unlawful arrest, the Legislature has not limited the remedies available to the person arrested, and thus, there is not a violation of the person’s constitutional rights.

Potential Consequences

Regardless of whether a person is guilty of the underlying charge that prompted the attempted apprehension, resisting arrest is a serious charge in Texas (many time more serious than the underlying offense). A person can face a significant fine and jail time.

Typically, resisting arrest, search, or transportation is prosecuted as a Class A Misdemeanor. An individual convicted of a Class A Misdemeanor may be sentenced to up to a year in county jail and a fine of up to $4,000.

However, the charge may be enhanced to a felony of the 3rd degree if you use a deadly weapon, such as a gun or a knife, to resist the arrest or search. An individual convicted of a felony of the 3rd degree may be sentenced to 2-10 years in the Texas Department of Corrections and a fine up to $10,000.

Our advice is to comply with the officer’s demands calmly and politely and let us work out the legality of the arrest later.