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My AccountChapter 38
- 38.1 Resisting Arrest Generally
- 38.2 Instruction—Resisting Arrest
- 38.3 Evading Detention or Arrest Generally
- 38.4 Instruction—Evading Detention or Arrest
- 38.5 Hindering Apprehension or Prosecution Generally
- 38.6 Instruction—Hindering Apprehension by Harboring or Concealing (Misdemeanor)
- 38.7 Instruction—Hindering Apprehension by Harboring or Concealing (Felony)
- 38.8 Instruction—Hindering Apprehension by Warning with “Compliance” Defense (Misdemeanor)
- 38.9 Escape Generally
- 38.10 Instruction—Escape
Comment
Obstruction. Under Texas Penal Code section 38.03, a crime can be committed either by preventing an arrest, search, or transportation or by “obstruct[ing]” it. Obviously, action prevents an arrest, search, or transportation only if the action is successful and the arrest, search, or transportation is not completed.
Obstructing an arrest, search, or transportation apparently means something different and less than preventing it. The term obstructing is not defined by statute, and what it requires is not clear. Case law discussions generally do not distinguish between preventing and obstructing or address the meaning of the second term.
One case discussion finds that the court cannot conclude the terms describe different conduct:
In section 38.03, the conduct proscribed is . . . “intentionally prevent[ing] or obstruct[ing] . . . by using force.” Tex. Penal Code Ann. § 38.03(a). We must therefore determine if “preventing” and “obstructing” are different types of conduct. The definition of the word “obstruction” includes “something that impedes or hinders; . . . an obstacle; . . . the act of impeding or hindering; . . . interference.” Black’s Law Dictionary 1107 (8th ed. 2004); see Hartis [v. State], 183 S.W.3d [793,] 799. “Prevent” is similarly defined as “[t]o hinder or impede.” Black’s Law Dictionary 1226 (8th ed. 2004); see Hartis, 183 S.W.3d at 799. Both words can be used to mean “hinder” or “impede.” Hartis, 183 S.W.3d at 799. Based on the definitions and common usage of these words, we cannot conclude that they describe different types of conduct.
Clement v. State, 248 S.W.3d 791, 801–02 (Tex. App.—Fort Worth 2008, no pet.) (some citations omitted) (preventing and obstructing are not separate offenses for purposes of unanimity analysis).
Culpable Mental State. Texas Penal Code section 38.03(a) requires the accused to be proved to have acted “intentionally.” Clearly this applies to preventing or obstructing the arrest, search, or transportation.
Does it also apply to the use of force? This may be of little practical importance—could a defendant intend to prevent an arrest but not intend the force used in an effort to accomplish this? Nevertheless, the Committee concluded the use of force is important enough to the definition of the offense that the culpable mental state “intentionally” will be applied to the use of force. The instruction provides for this.
Definition of “Using Force.” The conduct element of Texas Penal Code section 38.03 requires proof of the accused “using force.” The term force is “not defined by the Penal Code, and so we interpret [it] in accordance with [its] ordinary meaning.” Dobbs v. State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014).
The case law indicates that the proof need not show the defendant made contact with the officer. Haliburton v. State, 80 S.W.3d 309, 312–13 (Tex. App.—Fort Worth 2002, no pet.) (“kicking at” officer was use of force). In Dobbs, the court of criminal appeals seemed to affirm this. Dobbs exhibited a gun and threatened to shoot himself. As to the meaning of “force,” the court explained:
[T]he meaning of the word “force” is “violence, compulsion, or constraint exerted upon or against a person or thing.” Merriam-Webster’s Collegiate Dictionary 455 (10th ed. 1996); see also Webster’s New International Dictionary 887 (3d ed. 2002) (further defining force as “violence or such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm or death”).
The court of criminal appeals further supported this interpretation of the definition in Finley v. State, 484 S.W.3d 926, 928 (Tex. Crim. App. 2016). In Finley, the court clarified that Dobbs had not used force against the officers because he had “never pointed or threatened the officers with the gun” he was holding. Finley, 484 S.W.3d at 928. Finley reinforces that force could be used against an officer without physical contact occurring.
Definition of “Arrest.” Should or must “arrest” be defined? There is authority that the statute does not cover use of force to prevent or obstruct the making of a Terry stop. United States v. Berry, 25 F. Supp. 3d 931 (N.D. Tex. 2014). A definition of “arrest” therefore would seem to require excluding such detentions. The instruction contains no definition.
See CPJC 38.9 for further discussion of issues concerning defining “arrest.”
Some cases under the early version of the statute enforced a requirement that the force be used before the arrest (or search) is completed. In 1991, the statute was amended so that the offense can be committed by preventing or obstructing “transportation.” This permits prosecution to be based on the use of force after an arrest has been accomplished and the arrested person is being transported. A definition of arrest that makes clear when the arrest is completed is no longer as necessary as it previously was.
The provision for felony liability under Texas Penal Code section 38.03(d) refers to the use of a deadly weapon “to resist the arrest or search.” Perhaps the use of a deadly weapon to prevent or obstruct transportation cannot give rise to felony liability. On the other hand, it is arguable that force used after an arrest is completed can be said to be used to resist that completed arrest.