Charged with Evading Arrest in Texas? Here are Three Common Defenses

By August 18, 2020October 15th, 2021Evading Arrest

Updated October 11, 2021; Original Post: August 18, 2020 Evading Arrest

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Are you facing a misdemeanor or felony evading arrest in charge? Are you confused and worried about what will happen next? Being arrested and charged with Evading Arrest is a serious matter. It is critical that you become educated on Texas criminal law regarding Evading Arrest and what your options are to ensure you avoid jail time and clear your criminal record.

When you are being pursued by a police officer, your first instinct may be to run — or, if you are driving a car, to speed away. Think twice before you do this!

Whether you’re being pursued by a police officer on foot or in a police car, the threat of arrest can be frightening enough to activate your fight-or-flight response. So when given a choice between the two, “flight” may sometimes feel like the smarter option for you — especially when a fight response could land you an assault charge.

However, fleeing from a police officer (more commonly known as “evading arrest”) is a crime in and of itself in Texas, and it carries serious consequences for those convicted.

To help you better understand this serious crime and its consequences, we have created a guide to the penalties and possible defenses of evading arrest.

The Penalties for Evading Arrest in Texas

Under § 38.04 of the Texas Penal Code, you commit the crime of evading arrest when you intentionally flee from a person you know is a police officer attempting to lawfully arrest you.

The criminal penalties are actually separated by whether you are evading arrest on foot or using a motor vehicle.

Evading Arrest on Foot

If you intentionally flee from a police officer on foot when the police officer is attempting to lawfully detain or arrest you, it is a Class B misdemeanor. In Texas, a Class B misdemeanor is punishable by up to 180 days in jail and a fine up to $2,000, or both.

Evading Arrest by Motor Vehicle

Charges get more serious, however, if you intentionally flee from a police officer using a motor vehicle. Evading arrest in an automobile or water vessel is a state jail felony. In Texas, a state jail felony is punishable by up to two years in a state jail facility and a fine of up to $10,000, or both.

If you intentionally flee from a police officer using a vehicle or watercraft and someone suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight, you could face a 3rrd degree felony, punishable by up to ten years in prison and up to a $10,000 fine.

Enhancements for Prior Convictions

Similarly, charges are elevated if this is not your first offense. A second conviction for evading arrest in an automobile or water vessel is a third-degree felony. In Texas, a third-degree felony is punishable by up to 10 years in jail and a fine of up to $10,000, or both.

Additionally, charges are enhanced to a felony level evading arrest if you have previously been convicted for evading arrest on foot and are arrested for a subsequent evading arrest on foot.

However, in order for the State of Texas to use these enhanced punishments against you on your evading arrest case, they will need to have the judgment and sentences from the county you were convicted, in order to establish the convictions actually occurred. Failure to prove the conviction paperwork or evidence would result in the State of Texas being unable to allege an enhanced punishment range.

Other Charge Enhancements

Charges can also become more serious if you cause harm to another person while attempting to flee a police officer. If someone else suffers serious bodily injury as a direct result of your attempt to run or drive away from a police officer, it is considered a third-degree felony.

Possible Defenses to a Texas Evading Arrest Charge

To help you avoid the serious penalties that come with an evading arrest conviction, your lawyer has several possible options for legal defenses. We’ve outlined the most common legal defenses for evading arrest below.

Lack of Intent

To be convicted of evading arrest, the prosecutor must show that you intentionally ran or drove away from the officer. Your criminal lawyer should always use this defense in arguing your evading arrest charge. A good criminal defense attorney may be able to have your charges reduced or dropped if they can demonstrate you did not intend to flee the officer. Lack of intent is a common defense for many crimes.

For instance, we have seen situations where a citizen was at a bar and the music was playing loud and a police officer that was not wearing a uniform came up from behind and grabbed the citizen and aggressively pushed him to the door. In this situation, the citizen pulled away and quickly ran out the side door of the bar to get away. Did he know the plain clothes police officer was an officer? Of course not! He had no reason to know this was an officer and no evidence could be presented that he had intent to flee a police officer.

The State of Texas must prove that you had “intent” to evade the police officer and that proof must be beyond a reasonable doubt. If the prosecutor is unable to prove the element of intent beyond a reasonable doubt, your evading arrest case could be dismissed or you could receive a not guilty verdict at a jury trial.

Possible Defenses to a Texas Evading Arrest Charge

Lack of knowledge

What if you were driving and did not see the police officer behind you but pulled over after you realized they were trying to pull you over? We have seen this instance happen many times.

Each police officer has a different threshold of what they consider Evading Arrest With a Vehicle. Some officers will use discretion and only arrest someone for driving for a prolonged period without pulling over or if the person was speeding and not responding. Other police officers will claim Evading Arrest With a Vehicle if the driver does not immediately pull over and comply.

An experienced criminal defense lawyer can argue that you did not see the police officer, or that you did not know that they were pursuing you. These doubts regarding your lack of knowledge could provide your criminal defense attorney leverage in your negotiations with the prosecutor.

For example, a driver is in a large truck with cab and packages were stacked in the cab area. A police officer turns on his lights to pull over the driver. Initially, the driver does not see the police officer so he does not pull over for several blocks. The officer then initiates sirens and the driver is unaware the officer has done so because his stereo system is too loud. During this time, the driver is driving the speed limit and obeying all traffic laws. Was he intentionally evading arrest with a vehicle? Arguably, no! Once he realized the officer was trying to get his attention, he pulled over and complied with the officer’s requests. This is a good example of when this case could be presented to a grand jury to show there was not knowledge or intent to evade arrest with a vehicle. A grand jury could dismiss the case through a no-bill and your criminal attorney could follow up to ensure your criminal record is cleared.

What is a grand jury? A grand jury is a panel of citizens that listens to evidence for every felony case in Texas. In fact, it is required that every felony evading arrest case in Texas be presented to a grand jury to determine if probable cause exists. The best criminal defense attorneys in Texas take advantage of the grand jury process for their clients. Your criminal defense lawyer must take the time to gain access to your police reports and all digital media evidence that exists and sit down with you to review the evidence. It is common to find that evading arrest police reports do not always match what is seen on the videos. Why? Because police officers write police reports AFTER you have been arrested and they want to justify their reports. A thorough examination of the digital media evidence may show that the police reports were exaggerating or misstating what happened and the video showed a different story that could result in the dismissal of your evading arrest charges.

Typically, if your criminal defense lawyer finds problems with your felony evading arrest case, your lawyer can prepare an evidence packet that can be presented to the grand jury for consideration. The grand jury has three options: (1) keep the case as a felony evading arrest charge and assign it to a felony district court for a consultation docket court setting; (2) lower the charged to a lesser misdemeanor charge and assign it to a misdemeanor court in county court; or (3) reject the charge through a no bill. A no bill is complete exoneration of the charges and the equivalent of the grand jury determining that your felony evading arrest charge lacked probable cause.

If your felony evading arrest charge makes it past the grand jury, your criminal attorney can still fight the case by negotiating with the prosecutor through a series of court dates designed to give both the prosecutor and the criminal defense lawyer an opportunity to work out a resolution to the criminal case. What if the negotiations reach a stalemate?

You always have the right to a criminal jury trial under both the U.S. and Texas Constitutions. If a prosecutor fails to be reasonable in resolving your case, you can put the facts in the hand of 12 jurors that must reach a unanimous verdict regarding whether each and every element of the felony or misdemeanor evading arrest charge was proven beyond a reasonable doubt. If your experienced and aggressive criminal defense attorney argues your case to a jury and you are exonerated through a not guilty verdict, you will be immediately eligible for an expunction of all arrest and criminal records related to the evading arrest charge.

If you are facing a felony or misdemeanor evading arrest charge, the number one priority you should have is finding the right criminal attorney that will work tirelessly to advocate on your behalf to get your evading arrest charge dismissed. Being convicted of evading arrest can lead to employment challenges in the future and make it harder to keep your current job. Don’t take a plea deal!

The Fulgham Law Firm is a team of 5 former prosecutors that have over 80 years of combined prosecutor and criminal defense experience and over 500 criminal jury trials, including misdemeanor and felony evading arrest charges. We stand ready to advocate on your behalf and ensure no stone is left unturned when it comes to thoroughly analyzing your specific case facts and determining your customized defense plan. Don’t hesitate to contact our office for a free case analysis and consultation

About the Author:

Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth. He has been recognized for his work by Expertise (Best Criminal Defense Lawyers in Forth Worth and Best DUI Lawyers in Fort Worth, both 2020), The National Trial Lawyers, Fort Worth Magazine, and others.