Fort Worth Criminal Defense

Resisting Arrest: How is it defined under Texas law?

In 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.

Time Requirements on the State’s Power to Certify a Juvenile as an Adult

Texas Family Code Section 54.02 gives the juvenile court the power to transfer its exclusive jurisdiction over a juvenile case to a district court. This transfer of jurisdiction allows the State to treat a juvenile as an adult for purposes of prosecution. Section 54.02 actually lays out two different processes for transferring juvenile cases to adult court. The first process is used in cases where the juvenile is under the age of 18 at the time of certification. The second, which is laid out in Section 54.02(j), is for those cases in which a person has turned 18 prior to the filing of the case in juvenile court. The Texas Court of Criminal Appeals recently upheld the time requirements placed on the power of the State to pursue post-18 certifications in Moore v. State (Case Opinion - 2017).

Section 54.02(j)’s Time Limits

Section 54.02(j) allows a juvenile court to transfer its jurisdiction to an appropriate district court for criminal proceedings if the person accused is 18 years of age or older at the time the petition is filed but was a juvenile at the time the offense was committed. During the transfer hearing, the State must prove by a preponderance of the evidence that “for a reason beyond the control of the State, it was not practicable to proceed in juvenile court before the 18th birthday of the person or after due diligence of the State, it was not practicable to proceed in juvenile court before the 18th birthday of the person because the State did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person or the person could not be found.”

This section of the Family Code imposes on the prosecutors a duty to pursue cases in juvenile court whenever possible. In order to retain the power to prosecute cases after a person has aged out of the juvenile system, the State must show that the delay in prosecution was beyond its control. If it is unable to prove this, then the only choice available for a juvenile court in these situations is to dismiss the case.

The Issue in Moore v. State

In Moore, the accused was charged with Aggravated Sexual Assault of a Child. He was alleged to have committed the offense when he was 16 years of age. Due to a heavy caseload and an error in one of the police reports, the detective did not send the case to the District Attorney’s Office until after Moore had turned 18. The prosecutor filed a certification petition in the case over a year later when Moore was 19 years old. The juvenile court transferred the case to district court.

Moore pled in adult court and received 5 years’ probation on a deferred adjudication. He then appealed the case claiming that the juvenile court lacked the jurisdiction to transfer the case because the State did not prove that the delay in filing the case was beyond its control. The State first claimed that law enforcement should not be considered “the State” under Section 54.02(j). The State then argued that the court should consider whether the reasons for the delay were unconstitutional. According to this argument, if the reasons for the delay were not in violation of Moore’s constitutional rights, then the State should be allowed to proceed with the certification regardless of who was to blame for the postponement in filing charges.

The Court’s Ruling

After considering the arguments of both sides, the ruling of the Court of Appeals, and the case law presented by the parties, the Court of Criminal Appeals ruled on the case. First, the Court held that the term “the State” includes law enforcement and prosecutors collectively. The Court pointed out that the law consistently includes law enforcement in its use of this term.

The Court then dismissed the State’s notion that the requirements of Section 54.02(j) be treated like a claim of speedy trial, due process, or statute of limitations. The Court explained that the reason for the requirements in Section 54.02(j) is to limit the power of the State to prosecute a person as an adult for something that happened when he was a juvenile. In order for an exception to be made to this general rule, the State must prove that it was not at fault for the delay in prosecution.

Conclusion

The Court of Criminal Appeals’ decision in Moore is consistent with the Texas Supreme Court’s rulings in other cases involving juvenile certifications. The courts are clear that juvenile cases should be handled in juvenile court when possible. This means that detectives and prosecutors working juvenile cases must be diligent in giving these cases the proper priority so that an accused juvenile does not age out of the system before his case can be heard by the juvenile court. In any case in which prosecution is delayed until after a person’s 18th birthday, the State will be required to prove that the reason for this lag time was beyond its control. And if the State is unable to meet this requirement, then the courts will prevent further prosecution in these cases.

Defendant's Arson Charge was Enhanced when Fire was Alleged as a "Deadly Weapon."

Pruett v. State (2nd Court of Appeals - Fort Worth, 2016)

***UPDATE - This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion here.

Jeffery Pruett inherited a one-third shared interest in the family home with his two siblings after the death of their elderly parents. The adult siblings had a long history of quarreling over Pruett’s living arrangements, as he moved in and out of the residence prior to the deaths of their parents. Fed up, Pruett moved into a motor home, and was often seen by the neighbors driving around the neighborhood. Meanwhile, Pruett’s siblings listed the home for sale with the intention of dividing the proceeds equally between the three siblings.

On December 19, 2012, a neighbor spotted Pruett parking his motor home in front of the residence. Pruett exited the vehicle, went into the backyard of the residence, and then got back into the vehicle and drove away. Moments later, the neighbor saw smoke coming from the back of the house. The neighbor ran to the backyard, saw flames shooting out of the residence, and called the Fort Worth fire department. Neighbors were successful in using a garden hose to extinguish a large portion of the fire. When the fire department arrived, they confirmed that there was no one inside the home and put out the remaining flames. After an investigation, the arson investigator concluded that the fire had been intentionally started with a flammable ignition source.

Pruett’s Case Goes to Trial

At trial, the fire department’s battalion chief testified that had the flames not been put out, the fire would have consumed the home. Further, the arson investigator testified that the fire was “very dangerous,” putting neighbors, fire fighters, and anyone inside the home in immediate danger of death or serious injury. Considering his use of fire to be a deadly weapon, the trial court convicted Pruett of arson, sentencing him to twenty years imprisonment. Pruett appealed to the Second Court of Appeals, arguing that the court lacked sufficient evidence to support the finding of fire as a deadly weapon. Fire as a deadly weapon carries a heavier penalty in Texas.

What does Texas Law say about fire as deadly weapon?

Fire is not considered a deadly weapon in the Texas Penal Code, however, a Court can find that fire was used as a deadly weapon if the surrounding circumstances meet a three-pronged test. Mims v. State, 335 S.W. 3d 247, 249-50. In order for fire to be deemed a deadly weapon, the evidence must prove

1. the object meets the definition of a deadly weapon;
2. the deadly weapon was used…during the transaction on which the felony conviction was based; and
3. other people were put in actual danger.”

Brister v. State, 449 S.W.3d 490,494 (Tex. Crim. App. 2014).

The Second Court of Appeals Weighs In - The Court must determine whether the fire set by Pruett was capable of causing death or serious bodily injury.

Did the fire meet the statutory definition of a deadly weapon?

Under Texas law, a deadly weapon can be “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(West Supp. 2015). To determine whether the object was “capable” of causing death or serious bodily injury, such “capability” must be evaluated based on what actually happened, not conjecture about what might have happened if the facts had been different than they were.” Williams v. State, 946 S.W.2d 432, 435-36 (Tex. App.—Fort Worth 1997).

Here, the Court says the neighbor had put out most of the fire with the garden hose by the time the fire department arrived on the scene. Further, the neighbor who called the fire department was not placed in danger. Even though the arson investigator testified that the firefighters were placed in danger, such danger is part of the job. Since there was no one else in the home at the time of the fire, there is no evidence that the firefighters were put in actual danger of death or seriously bodily injury. The Court concludes, “the facts—viewed…in light of what did happen [not what could have happened]—do not support [fire as a deadly weapon] in this case.” The Second Court of Appeals orders the deadly weapons finding to be deleted from Pruett’s judgment.

CASE UPDATE (1/25/17) - CCA Reverses the COA Decision

In reversing the Court of Appeals, the CCA held:

"An arsonist is not the same as an intoxicated driver, and the degree of danger and harm that each offender is capable of causing is materially different. In the case at bar, the deadly nature of the fire is not difficult to appreciate. Fire is inherently dangerous in a way that cars are not and it is capable of inflicting serious bodily harm, especially when it is intentionally started in a residential neighborhood. This fire was dangerous because it was left unattended and because appellant used an accelerant. As a result, the fire endangered not only the lives of the firefighters who responded to the call but also the lives of neighbors who could have been killed or seriously injured if the fire continued to spread. The fire also posed a danger from both the heat effects and the emissions of toxic chemicals. In this case, the State adequately demonstrated that the fire that appellant started was capable of causing death or serious bodily injury...When evidence at trial demonstrates that someone ignites combustible material to intentionally burn down a house in a residential neighborhood, a deadly-weapon finding may appropriately attach to the arson conviction when the fire is capable of causing death or serious bodily injury. That is what happened in this case. "

Many people have the perception that the juvenile system is simply a slap on the wrist for kids, regardless of the offense. The reason for this belief is the fact that most kids in the juvenile system get probation. But, probation is not always that simple or easy. This is an introduction to juvenile probation in Tarrant County. This article will cover the reasons behind the tendency towards probation, the length and parameters of probation and what it can include.

The Reasons Behind a Probation Heavy System

According to Section 51.01 of the Texas Family Code, the purposes of the juvenile justice system are to protect the public, promote the concept of punishment for criminal acts, to remove the taint of criminality from children, and to provide treatment, training, and rehabilitation that emphasizes accountability for the parent and child for the child’s conduct. This section goes on to state that a child should be removed from his parents only when it is necessary for the welfare of the child or the interest of the public safety. Section 51.01 forms the foundation for which the entire juvenile justice system is based on.
Because of this mandate in Section 51.01 that children should only be removed when necessary, probation with the child remaining in the home is the primary mode of punishment and rehabilitation used by the Tarrant County Juvenile Services Department. The system is not geared towards ripping a kid away from his family, but is built to address and correct the behavior by working with the child and the family together.

The Length and Parameters of Juvenile Probation

In the adult system, a person is only eligible for probation on their first felony offense. In the juvenile system, however, probation is the preferred outcome on cases due to the Family Code’s preference for keeping children in the care of their parents. Under the provisions of the Family Code, a juvenile is eligible for probation on any offense, up to and including murder. For misdemeanor offenses, probation is the only option available.

The maximum length of probation, regardless of offense, is generally up to a child’s 18th birthday. In circumstances involving the most serious offenses or habitual offenders, the prosecutor may seek a determinate sentence which extends the possible punishment. On determinate sentence cases, probation can last for a maximum of ten years. In Tarrant County, prosecutors generally only seek determinate sentences in the most serious of cases.

What Juvenile Probation Can Include

Juvenile probation in Tarrant County can include a wide variety of conditions and requirements, depending on the case and the unique needs of the child and family. Some of the more common conditions of probation are discussed here.

Barnett Howard & Williams PLLC recently completed a full renovation of the historic Atelier Building (1905) in downtown Fort Worth. The Atelier Building is one of the oldest buildings in downtown Fort Worth, Texas that stills stands today. Built in 1905, the Atelier Building housed several different businesses over its 112-year history, including architects, banks, and a restaurant at one time. Located on 8th street between Houston and Throckmorton, the Atelier Building is marked by its dual terra-cotta fireplaces and marble facade.

The Atelier Building was last renovated in 1980 when architect Cameron Alread purchased the building. The building housed Mr. Alread's architect firm for 36 years, until he sold the building to the law firm of Barnett Howard & Williams PLLC. Over the last six months, the law firm completely renovated the building from floor to ceiling. "One of our goals in this renovation was to bring out the history of the building," said owner Luke Williams. If you take a look inside the building you will see exactly what he means. Plaster walls were removed to expose the original brick on the walls - bricks that have been around longer than most building in downtown. The foyer is graced by an enlarged photograph that was taken outside the building sometime during the 1930's, back when 8th street was a brick road.

Office manager, Sue Holdridge has noticed a warm reception from the people of downtown. "Folks on the sidewalk continue to stop by and tell us how much they have enjoyed watching the transformation of the building and how much character it brings to this block of downtown."

Barnett Howard & Williams PLLC moved its practice to Fort Worth in 2013, and maintained an office in Sundance Square until December 2016, when the Atelier Building renovation was complete. The firm gives all the credit for the renovation to Eric Hill at Hill Design & Build in Keller. He was the primary designer and architect for the project.