Texas Penal Code 38.04 – Evading Arrest or Detention
WHAT IS THE OFFENSE OF EVADING ARREST OR DETENTION IN TEXAS?
The Texas law against evading arrest or detention prohibits ignoring a lawful police command to stop.
WHAT IS THE EVADING ARREST OR DETENTION LAW IN TEXAS?
Tex. Penal Code § 38.04. EVADING ARREST OR DETENTION.
(a) 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.
(b) An offense under this section is a Class A misdemeanor, except that the offense is:
(1) a state jail felony if the actor has been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle or watercraft while the actor is in flight;
(B) another suffers serious bodily injury as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight; or
(C) the actor uses a tire deflation device against the officer while the actor is in flight; or
(3) a felony of the second degree if:
(A) another suffers death as a direct result of an attempt by the officer or investigator from whom the actor is fleeing to apprehend the actor while the actor is in flight; or
(B) another suffers serious bodily injury as a direct result of the actor’s use of a tire deflation device while the actor is in flight.
. . .
(d) A person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other law.
WHAT IS THE PENALTY CLASS FOR EVADING ARREST OR DETENTION IN TEXAS?
The first conviction for evading arrest or detention on foot is a Class A misdemeanor, punishable by up to one year in county jail. A subsequent charge for evading arrest or detention on foot is enhanced to a state jail felony, punishable by 180 days to two years in a state jail facility.
If a person evades in a vehicle or watercraft, it is a third degree felony, punishable by two to ten years in prison. It becomes a second degree felony, punishable by two to 20 years in prison, if the person causes serious bodily injury or death while evading.
WHAT IS THE PUNISHMENT RANGE FOR EVADING ARREST OR DETENTION IN TEXAS?
The punishment range for Class A misdemeanor evading arrest or detention is up to one year in jail, and up to a $4,000 fine. A person charged with a state jail felony evading faces between 180 and two years in a state jail facility, and up to a $10,000 fine.
A third degree felony evading carries a possible two to ten years in prison, and up to a $10,000 fine. A second degree felony evading arrest or detention is punishable two to 20 years in prison, and up to a $10,000 fine.
WHAT ARE THE PENALTIES FOR EVADING ARREST OR DETENTION IN TEXAS?
A person charged with evading arrest or detention may be eligible for probation after a conviction, or deferred adjudication without a conviction. The period of community supervision for a Class A misdemeanor is two years.
The community supervision term for a state jail felony evading arrest or detention ranges between two and five years, with the possibility of extending supervision for up to ten years. For a second degree or third degree felony evading charge, the period of community supervision may not exceed ten years.
WHAT ARE THE DEFENSES TO EVADING ARREST OR DETENTION IN TEXAS?
The statute does not authorize specific defenses to evading arrest or detention. A person accused thereof may attempt to negate at least one of the elements the State must prove at trial.
- What is fleeing from an officer in Texas? Fleeing is anything less than prompt compliance with an officer’s direction to stop.In Lopez v. State, officers saw a defendant speeding, and activated their lights and sirens as the defendant exited the highway. He drove through a neighborhood for 0.6 miles, then parked in his driveway. At trial, he argued he was not accelerating, and did not notice the lights or sirens during the minute while officers were behind him. He was convicted of evading, and the appellate court upheld the conviction. Fleeing slowly is still fleeing.
- Can a person be convicted of evading in Texas if the initial arrest or detention was illegal? No. The State must prove the attempted arrest or detention was lawful at the time the person fled. A lawful arrest must be supported by probable cause, or the officer’s reasonable belief that a crime is occurring or has occurred.Because the legality of the arrest or detention is an element of the offense, it is improper to raise the issue in a pre-trial motion to suppress.
- Can a person be charged with evading arrest if the person does not know the officer is attempting to detain or arrest? An evading arrest or detention conviction requires proof the defendant knew a police officer was trying to arrest or detain him or her. Thus, a police officer must make some show of authority, usually accomplished by overhead lights or sirens.In Duvall v. State, an officer driving on a two-way street saw the defendant speeding in the opposite direction. He turned around, intending to stop the defendant, but did not turn on his overhead lights, and did not catch up to the defendant. The defendant crashed his car, and left the scene before any officers arrived. He was convicted of evading, but the appellate court reversed. There was no way he could have known the officer was attempting to stop him.
WHAT IS THE STATUTE OF LIMITATIONS FOR EVADING ARREST OR DETENTION IN TEXAS?
The limitation period for evading arrest or detention categorized as a Class A misdemeanor is two years. The limitation period for evading arrest or detention classified as any grade of felony is three years.
EVADING ARREST OR DETENTION IN TEXAS
The purpose of punishing evading arrest or detention is to encourage suspects to yield to a show of authority by law enforcement, and prevent further potential threats to the public caused by fleeing suspects and police chases. While a high-speed chase constitutes evading, one is not required. Evading is any attempt to flee from a known police officer.
TEXAS EVADING ARREST OR DETENTION COURT CASES
The case law regarding evading arrest or detention in Texas shows the minimal conduct required to support a conviction.
- In Leos v. State, the defendant was charged with resisting arrest. As officers were shackling him, he began to struggle, then started crawling away on his shoulders and knees with his hands clasped to his stomach. The court of appeals held the evidence did not support the conviction for resisting, but might support a case for evading arrest.
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WE FIGHT FOR DISMISSAL
WE FIGHT FOR DISMISSAL
CHARGES DISMISSED
DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
CHARGES DISMISSED
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
CHARGES DISMISSED
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
CHARGES DISMISSED
DWI 2nd
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
CHARGES DISMISSED
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
CHARGES DISMISSED
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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