Resisting arrest is unfortunately one of the most common misdemeanor charges brought in Tarrant County. Many overzealous prosecutors and police officers pursue resisting arrest charges as a retaliatory means of punishing an individual for questioning a police officer’s authority.
A conviction for resisting arrest has the ability to completely alter your future, creating immense difficulties with obtaining a job, applying for financial aid, attending school, seeking child custody or requesting government benefits. In addition, resisting arrest carries potential jail time and exorbitant fines. In order to effectively combat allegations of resisting arrest, it is crucial that you seek the representation of an attorney experienced in handling resisting arrest cases and has actual courtroom experience handling resisting arrest charges.
The Fulgham Law Firm is committed to criminal justice and has handled hundreds of resisting arrest cases with our team of Former Tarrant County Prosecutors. Our mission is to fight for the rights of the accused. In fact, Brandon Fulgham began with the District Attorney’s Office in Collin and Tarrant County, bringing misdemeanor and felony cases before judges and juries.
After trying countless criminal cases as a prosecutor, I opened my boutique criminal defense firm, the Fulgham Law Firm, so that I can help protect my clients’ constitutional rights and interests. Mr. Fulgham’s time as a prosecutor has afforded him a rare insight into how the District Attorney’s Office gathers evidence, formulates case theories, and makes decisions regarding plea bargains, diversion, and sentencing recommendations. Mr. Fulgham’s knowledge of the criminal justice system, his experience as a prosecutor, and his passion for doggedly advocating on his clients’ behalf sets him and his team of criminal defense attorneys apart from other lawyers handling resisting arrest cases.
What Is Resisting Arrest?
The Texas Penal Code §38.03 defines resisting arrest as the act of intentionally or knowingly preventing or obstructing a police officer from conducting an arrest, search or transport by using force. In addition, the individual resisting arrest does not need to be directly under arrest. Impeding someone else’s arrest, search or transport can result in resisting arrest charges.
The resisting arrest statute is vague, and as such, the Tarrant County Sheriff’s Department often interprets it quite liberally to involve a host of activities that require very little force.
For instance, individuals are often arrested for resisting an officer when they:
- Pull their arms away from the officer during arrest – let’s think about this situation for a moment. Not every time that someone pulls their arms away from a police officer should be considered resisting arrest or search. There have been many instances where a patron at a Fort Worth bar is walking out of the bar and heading to their car with their friends and a police officer on 7th Street, near downtown Fort Worth, walks up and grabs them by the arm and asks them how much they have had to drink. What is the natural reaction when someone comes up and pulls you by the arm? Pull away! Does that mean you were intentionally or knowingly resisting arrest or search by a police officer? NO! Each factual situation must be examined by the police reports and the video to determine if the State of Texas can prove the case beyond a reasonable doubt. If you did not know you were being confronted by a police officer or were confused about why a stranger was grabbing you by the arm, you did not have the necessary criminal intent to be convicted of resisting arrest.
- Swing their arms to avoid handcuffing – this is a common occurrence in Fort Worth, Texas. We have seen many instances where a Fort Worth police officer will grab someone, unannounced, and attempt to handcuff them. Being handcuffed is a violent act that can be painful and can cause anyone to move or swing their arms if they are being aggressively handled with metal handcuffs. Does this mean you were attempting to avoid being arrest or detained? No! Similar to the example above, the prosecutor must prove beyond a reasonable doubt that you intentionally or knowingly prevented or obstructed a police officer from conducting an arrest, search or transport by using force. Simply moving your arms may not constitute force and failure to prove force plus criminal intent could provide your aggressive and experienced Fort Worth criminal defense attorney the opportunity to get your resisting arrest case dismissed.
- Elbow the officer – many people arrested for public intoxication or active traffic warrants will be roughed up by the police department during the arrest process and this will cause the person being arrested to experience pain. Pain always results in involuntary responses and actions in order to avoid pain. If a police officer was elbowed, we must ask the question – was it intentional? Does the video and surrounding facts clearly establish that the intent of the arrestee was to injure or resist the officer. If the intent to injure is present, a felony assault of a public servant could be filed. However, merely involuntarily responding to aggressive arrest tactics by the police does not, by itself, prove the crime of resisting arrest.
- Struggle with the officer – if a police officer puts you down on the ground hard and presses you into the ground, this will likely result in what the police officer will call a struggle. If you pull away from the officer and push away to get free, this could be a clear case of resisting arrest. However, not all movement that the police characterize as a struggle is legitimate. If you are having a hard time breathing or your arm has been placed in a position that you cannot bear the pain, moving your arms or your body to stop the pain does not constitute a “struggle.” This illustrates why it is critical to hire the best resisting arrest attorney in Fort Worth, Texas. The best resisting arrest attorneys will not allow the police or the prosecutor to twist the facts into criminal intent.
Penalties for Resisting Arrest
Resisting arrest is usually a Class A misdemeanor in Fort Worth. Under Texas criminal law, a Class A misdemeanor is a misdemeanor offense that is punishable by a maximum of one year in Tarrant County Jail and a maximum of $4,000 in fines.
However, aggravating factors can increase the potential punishment. For example, resisting arrest becomes a third degree felony when an individual utilizes a deadly weapon to resist an officer.
What is a deadly weapon? A deadly weapon is defined as any item that its intended use is to cause serious bodily injury or death. For example, if you take a tooth pick and attempt to stab it into someone’s eye, you could be charged with the tooth pick being a deadly weapon. Why? Because its intended use was to cause serious bodily injury or death by stabbing into someone’s eye.
Resisting arrest may also be filed as a 3rd degree felony if the resisting arrest results in a serious bodily injury to the police officer.
Legal Defenses to Resisting Arrest
Common defenses against resisting an arrest include:
- You were unaware the police officer was in fact an officer because he was not easily identifiable, g., did not identify himself as an officer or was not in uniform. For example, we have seen this happen at clubs or bars where loud music is playing and the bar decides that a patron needs to be kicked out of the bar. Usually, they will call a bouncer or off-duty police officer over to tell the person they need to leave. We have seen many instances where a Fort Worth police officer that is not in uniform approaches someone drinking at the bar and grabs them and starts talking. The client can not hear what the police officer is saying and pulls away and disregards the police officer, which usually leads to a struggle and further resisting by the client because he has no idea who this person is grabbing at him. It is critical that the State of Texas prove beyond a reasonable doubt that the client both knew that the person detaining him was a police officer and that he intentionally or knowingly prevented or obstructed a police officer from conducting an arrest, search or transport by using force. As you can see in this example, none of these elements can be proven.
- You were acting in self-defense because the police officer assaulted you – if a police officer exceeds the scope of his responsibilities and assaults you, you have a right under Texas resisting arrest law to not only defend yourself but also resist the officer’s unlawful actions against you. Did the police officer’s contact with you leave you with bruising and pain? You need to provide proof of the illegal actions by the police officer to your criminal defense lawyer so that this information can be used to prepare your criminal defense.
- The police officer did not have probable cause to arrest you for anything – did a police officer pull you over without reasonable suspicion? Did he arrest you or detain you for no reason? These are critical issues that your criminal defense lawyer needs to examine to help dismiss your resisting arrest charge.
- You did not use “force” – under Texas resisting arrest law, the State of Texas must prove beyond a reasonable doubt that you intentionally or knowingly preventing or obstructing a police officer from conducting an arrest, search or transport by using FORCE. Some officers will claim you offered “passive resistance” and use this as an excuse to arrest you from resisting arrest. What is “passive resistance?” According to some police officers, it is when you do not immediately respond to a demand to put your hands behind your back or you keep your hands down by your side or you keep your arms crossed and choose not to comply with the police officer’s orders. Does this constitute the crime of resisting arrest? Not necessarily. Your Fort Worth criminal attorney needs to thoroughly examine the police reports and video to determine if you used “force” in the process of the encounter with the police. Passively resisting is a fictional term created by the police to justify an arrest decision. Failure to comply with a police officer’s request does not, by itself, constitute sufficient evidence to be convicted of resisting arrest. If your Fort Worth criminal determines your actions were based upon unintentional actions or actions that were “passive,” your resisting arrest case may be able to be dismissed.
- Grand Jury Presentation – if you are facing a felony resisting arrest charge because there was an alleged deadly weapon involved, you need an experienced and aggressive Fort Worth criminal defense attorney to review the evidence of your case and prepare an evidence packet to be presented to the grand jury. The grand jury is a panel of citizens that determine if a felony case should remain as a felony, be dropped to a lesser misdemeanor charge or dismissed altogether by a no bill. A no bill is the equivalent of dismissing your felony resisting arrest charge. Either way, your Fort Worth resisting arrest lawyer needs to take quick action to preserve your opportunity to present evidence to the grand jury.
Fort Worth Resisting Arrest Defense Attorney Prepared to Aggressively Fight for Your Rights
At the Fulgham Law Firm, our main priority is to help you fight for your legal rights and to minimize, if not completely dismiss, the criminal charges being brought against you. This involves tailoring my representation to your needs, goals, and best interests. Let our team of five former prosecutors review your evidence and give you a free case analysis and consultation. To begin crafting a strategy for attacking the prosecution’s evidence, call the Fulgham Law Firm today at (817) 886-3078.
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We’ve helped hundreds of people in Texas and we can help you too. We’ll set you up with a free conversation with Mr. Fulgham which will help you know what to do next. The Fulgham Law Firm serves Fort Worth and Tarrant county areas.