An encounter with police can escalate quickly. Confusion, fear, physical contact, or conflicting interpretations of someone’s movements can turn an initial investigation into an additional resisting arrest charge.
However, resisting arrest requires more than simply being uncooperative.
Texas law requires prosecutors to establish specific elements, including intentional conduct and the use of force. A Resisting Arrest Defense Attorney can examine body-camera footage, witness accounts, officer reports, physical injuries, and the complete sequence of events surrounding the arrest.
Milner Wynne represents clients facing resisting arrest and other criminal charges in Dallas and throughout North Texas.
What Is Resisting Arrest in Texas?
Texas Penal Code §38.03 addresses resisting arrest, search, or transportation.
A person commits the offense when the person intentionally prevents or obstructs someone they know is a peace officer, or someone acting in a peace officer’s presence and at the officer’s direction, from carrying out an arrest, search, or transportation by using force against the officer or another person.
Several parts of this definition can become important.
Prosecutors must establish intentional conduct. They must also prove the defendant used force against another person while preventing or obstructing the law enforcement action.
A disagreement with an officer does not automatically satisfy those requirements.
What Does “Using Force” Mean?
The force element can become one of the most disputed parts of a resisting arrest case.
Police encounters can involve rapid physical movements. Officers may grab someone’s arms, attempt to place them in handcuffs, force them to the ground, or use other restraint techniques.
The accused may react instinctively.
The defense can examine what physical movement actually occurred and whether it constitutes the intentional use of force required by the statute.
Body-camera footage can be particularly important because an officer’s written description of a struggle may not provide the complete context of the encounter.
Is Refusing to Cooperate Resisting Arrest?
Not necessarily.
Someone can be argumentative, verbally confrontational, or unwilling to cooperate without automatically committing resisting arrest under §38.03.
The statute specifically requires obstruction through the use of force against the officer or another person.
That distinction matters.
A Resisting Arrest Defense Attorney can evaluate whether prosecutors actually have evidence of force rather than relying on broad descriptions such as “resisted,” “pulled away,” or “failed to comply.”
The exact physical conduct should be examined.
Does Pulling Away From an Officer Count as Resisting?
This question frequently depends on the specific circumstances.
An officer may describe someone as pulling away, stiffening their arms, turning their body, or otherwise physically resisting efforts to place them in custody.
Whether that conduct satisfies the statutory requirements can become a disputed legal and factual issue.
Video can help establish what occurred.
The defense may compare footage with the officer’s report, statements from other officers, witness accounts, and any injuries sustained during the encounter.
The prosecution still carries the burden of proving intentional resistance through force beyond a reasonable doubt.
Can You Resist an Unlawful Arrest in Texas?
Texas law specifically states that it is not a defense to prosecution under §38.03 that the arrest or search was unlawful.
This can surprise defendants who believe they were arrested without justification.
The legality of the underlying police conduct can still matter in other ways. For example, an unlawful search may create issues concerning suppression of evidence in the underlying criminal case.
But Texas law generally does not allow someone to defend a resisting arrest charge solely by arguing that the arrest itself was unlawful.
Legal challenges to police conduct ordinarily belong in court rather than through physical resistance during the encounter.
Resisting Arrest vs. Evading Arrest
Resisting arrest and evading arrest are separate Texas offenses.
Resisting arrest under §38.03 focuses on intentionally preventing or obstructing an arrest, search, or transportation through force.
Evading arrest or detention generally involves intentionally fleeing from someone the defendant knows is a peace officer or federal special investigator who is lawfully attempting to arrest or detain them.
Running away and physically struggling with an officer therefore raise different statutory issues.
Depending on the circumstances, prosecutors may allege one offense or multiple offenses arising from the same encounter.
Resisting Arrest vs. Assault on a Peace Officer
A physical confrontation during an arrest can potentially result in more serious allegations.
If prosecutors claim that an officer suffered bodily injury, the investigation may expand beyond resisting arrest.
The defense should determine exactly what physical contact allegedly occurred, whether an injury resulted, and what evidence establishes how that injury happened.
Important evidence can include:
- Body-camera footage
- Dash-camera footage
- Medical records
- Photographs
- Officer statements
- Witness testimony
- Surveillance video
An officer sustaining an injury during a chaotic arrest does not automatically establish how the injury occurred or who was criminally responsible for it.
Body-Camera Footage in Resisting Arrest Cases
Body-camera footage can be one of the most valuable sources of evidence in a resisting arrest case.
Video may show what happened before physical contact began, what commands officers gave, how quickly events developed, and how the accused responded.
It may also reveal differences between the video and later written descriptions.
However, video has limitations.
An officer’s body camera may be blocked during a struggle. The camera angle may not show a defendant’s hands or the actions of another officer.
Multiple recordings should therefore be reviewed when available.
Dash cameras, security cameras, cell phone recordings, and footage from other officers can provide additional perspectives.
Injuries During an Arrest
Injuries can occur when officers and a suspect become physically involved.
A defendant may suffer bruises, cuts, sprains, or other injuries during the encounter. Officers may also report injuries.
Photographs and medical records can help document what occurred.
The location and nature of injuries may provide evidence concerning body positions, the degree of force used, and the sequence of the confrontation.
Preserving this evidence early can be important because visible injuries may heal quickly.
What Are the Penalties for Resisting Arrest in Texas?
Resisting arrest is generally a Class A misdemeanor in Texas.
A Class A misdemeanor can carry:
- Up to one year in county jail
- A fine of up to $4,000
The offense can become a third-degree felony if a deadly weapon is used to resist the arrest or search.
A third-degree felony generally carries two to 10 years in prison and a possible fine of up to $10,000.
Additional charges arising from the same encounter can further increase the potential consequences.
Intent Matters in a Resisting Arrest Case
Texas law requires the defendant to act intentionally.
That mental-state requirement can be significant during a fast-moving police encounter.
A person might move because of pain, confusion, fear, balance problems, or an instinctive reaction to being grabbed.
The prosecution may characterize the same movement as deliberate resistance.
A defense should evaluate what occurred immediately before the alleged force and whether the evidence actually establishes an intentional effort to prevent or obstruct the arrest, search, or transportation.
Building a Defense to Resisting Arrest Charges
A Resisting Arrest Defense Attorney can investigate the entire encounter rather than relying solely on the arrest report.
Potential defense issues can include:
- Whether force was actually used
- Whether the conduct was intentional
- Whether the defendant knew the person was a peace officer
- Conflicting officer accounts
- Body-camera evidence
- Independent witness testimony
- Defendant injuries
- Officer injuries
- Deadly weapon allegations
- The sequence of physical contact
Small details can matter.
A few seconds of video may determine whether someone’s movement appears to be intentional resistance, an instinctive response, or something else entirely.
Frequently Asked Questions About Resisting Arrest Defense
Is resisting arrest a felony in Texas?
Resisting arrest is generally a Class A misdemeanor. It can become a third-degree felony when prosecutors prove that a deadly weapon was used to resist the arrest or search.
Can I be charged with resisting arrest for arguing with police?
Arguing alone does not necessarily satisfy §38.03. Texas resisting arrest law requires obstruction through the use of force against the officer or another person.
Is pulling my arm away resisting arrest?
It can depend on the specific conduct and circumstances. Prosecutors must prove the statutory elements, including intentional obstruction through force.
What if the police officer arrested me illegally?
Texas law states that the illegality of the arrest or search is not itself a defense to a resisting arrest prosecution. The underlying police conduct may still create separate constitutional or evidentiary issues.
Can body-camera footage help my defense?
Yes. Body-camera footage may show how the encounter began, what officers said, what physical movements occurred, and whether the written reports accurately describe the event.
Can resisting arrest lead to additional charges?
Yes. Depending on the circumstances, an encounter may also result in allegations such as evading arrest or assault on a peace officer.
What if I moved because the officer was hurting me?
The circumstances surrounding the movement can be important because the statute requires intentional conduct. Video, medical records, photographs, and witness accounts may help establish what happened.
Should I hire an attorney for a misdemeanor resisting arrest charge?
A Class A misdemeanor can carry jail time and a substantial fine. An attorney can examine the evidence, including police video, and determine what defenses or other resolution options may be available.
Speak With a Resisting Arrest Defense Attorney
Resisting arrest cases often develop within seconds, making video evidence and the precise sequence of events particularly important. Whether force occurred, whether the defendant acted intentionally, and whether the officer’s account matches the available recordings can all affect the prosecution.
Milner Wynne focuses exclusively on criminal defense and represents clients facing misdemeanor and felony allegations in Dallas and throughout North Texas. If you have been arrested or charged after a confrontation with law enforcement, a Resisting Arrest Defense Attorney can examine the evidence and develop a defense based on what actually occurred.