Comment

Evading arrest or detention is graded in a quite complicated way. The basic offense is a class A misdemeanor, but it can be raised to felony level in several ways. The Committee’s instruction covers one of the ways in which the misdemeanor can be raised to a felony—under Tex. Penal Code § 38.04(b)(2)(A), the offense is a third-degree felony if the proof shows the defendant “use[d] a motor vehicle while in flight.”

Separating Elements of the Offense.  Jury instructions discussed by the appellate courts generally combine into one element two matters: (1) knowledge that the attempted arrestor or detainer was a peace officer, and (2) knowledge that the peace officer was attempting to detain or arrest the defendant. The element might be stated as: “The defendant knew that Sergeant James Jackson was a peace officer who was attempting to arrest or detain him.”

This fails to make absolutely clear the need of the state to prove several matters, including two distinct knowledge requirements. The knowingly mens rea term in this statute goes to both: (1) knowledge that the attempted arrestor or detainer is a peace officer, and (2) knowledge that the peace officer is attempting to detain or arrest the defendant.

The Committee concluded these two requirements were best presented as separate elements, thus clarifying the applicable law for the jury.

Culpable Mental States Required. Tex. Penal Code § 38.04(a) explicitly requires proof that the defendant knew the person from whom the defendant fled was a peace officer (or federal special investigator) and that the person was attempting to arrest or detain the defendant. Jackson v. State, 718 S.W.2d 724, 726 (Tex. Crim. App. 1986); Etheridge v. State, No. 08-12-00337-CR, 2014 WL 4952804, at *3 (Tex. App.—El Paso Oct. 1, 2014, no pet.) (not designated for publication) (“Section 38.04(a) requires proof that the defendant knows the peace officer is attempting to arrest or detain him.”).

Must the state prove the defendant knew the arrest or detention being attempted was lawful? A panel of the court of criminal appeals held that this was not required in Hazkell v. State, 616 S.W.2d 204, 205 (Tex. Crim. App. 1981) (panel). There is some reason to question whether Hazkell remains good law.

Hazkell was decided under the pre-1993 version of Tex. Penal Code § 38.04, which contained a provision making the unlawfulness of the officer’s actions an exception. Hazkell relied explicitly on this in reaching its conclusion: “The fact that an unlawful arrest is an exception which must be pled and proved (V.T.C.A. Penal Code, Section 2.02) does not carry with it the responsibility for the State to allege and prove that the accused ‘knew’ he did not come within the exception.” Hazkell, 616 S.W.2d at 205.

In 1993, the exception was removed and “lawfully” was inserted into section 38.04(a). An argument can be made that after this change, “knows” refers not only to the status of the person from whom the defendant fled and that person’s efforts to arrest or detain the defendant but also to the lawfulness of the attempted arrest or detention. Arguably, the legislature added the lawfulness of the officer’s actions to the list of those things that both must be proved and of which the defendant must be proved to have known.

Nevertheless, Texas courts have assumed Hazkell remains controlling, although without considering the effect of the 1993 change in the statutory language and structure. Etheridge, 2014 WL 4952804, at *3 (“Section 38.04(a) . . . does not require proof that the defendant knew his arrest or detention was lawful.”); Loewe v. State, No. 03-10-00418-CR, 2011 WL 350462, at *3 n.3 (Tex. App.—Austin Feb. 2, 2011, pet. ref’d, untimely filed) (not designated for publication) (“It was not necessary for the State to prove that appellant knew that the detention was lawful.”); Johnson v. State, No. 13-05-00648-CR, 2007 WL 1021413, at *2 (Tex. App.—Corpus Christi–Edinburg, Apr. 5, 2007, no pet.) (“It is not required that the State prove that the defendant had knowledge of the legal basis for the attempted detention or arrest.”).

The Committee’s instruction follows what appears to be present law as set out in Hazkell. It does not require proof that the defendant knew the attempted detention or arrest was lawful.

Intentionally Flees. The conduct element of the offense is fleeing. The flight must be intentional. There is some question whether the meaning of the statutory requirement—that the defendant be proved to have intentionally fled—is clear or adequately conveyed by the statutory terminology.

Much appellate attention has been paid to whether the evidence sufficiently shows defendants were aware that officers were attempting to arrest or detain them. Little attention, however, has been paid to what actions, if this awareness is shown, constitute flight.

Perhaps the leading decision is Horne v. State, 228 S.W.3d 442, 445–46 (Tex. App.—Texarkana 2007, no pet.), rejecting arguments “that flight requires an element of speed, an element of intent to ultimately be free of an officer’s control, or both.” Horne reasoned that “the cases indicate that ‘fleeing’ is anything less than prompt compliance with an officer’s direction to stop. Thus, such a delayed compliance legitimately can be found to be an attempt to evade arrest or detention.” Multiple cases have made similar findings. See, e.g., Green v. State, No. 10-12-00308-CR, 2014 WL 2946274, at *9 (Tex. App.—Waco June 26, 2014, pet. ref’d) (not designated for publication); Lopez v. State, 415 S.W.3d 495, 497 (Tex. App.—San Antonio 2013, no pet.); Tolbert v. State, No. 08-10-00096-CR, 2011 WL 3807740, at *3 (Tex. App.—El Paso Aug. 26, 2011, pet. ref’d) (not designated for publication).

If the evidence shows the defendant wished to delay or shift the location of the officer’s intended arrest or detention, almost any action taken pursuant to that intent will apparently constitute fleeing. Griego v. State, 345 S.W.3d 742, 751 (Tex. App.—Amarillo 2011, no pet.) (“[W]hile speed, distance, and duration of pursuit may be factors in considering whether a defendant intentionally fled, no particular speed, distance, or duration is required to show the requisite intent if other evidence establishes such intent.”).

Whether Named Person Is a Peace Officer. The instruction must require the jury to determine whether the state has proved the person specified as the one from whom the defendant fled was a peace officer or federal special investigator. Fabela v. State, 431 S.W.3d 190, 196 (Tex. App.—Amarillo 2014, pet. dismissed) (trial court erred in telling jury, “You are instructed that Chief Deputy Joe Orozco is a peace officer,” because Orozco’s status as a peace officer was an element of the offense and fact that belonged exclusively in province of jury to decide).

Lawfulness of Arrest or Detention. The state must prove the arrest or detention that was attempted was “lawful.” Clearly the jury instructions must contain the law defining “lawful” law enforcement activity in the context presented by the facts.

With regards to arrests, the word lawful invokes not only the constitutional requirement of probable cause but also the statutory requirement of an arrest warrant.

The Committee’s instruction does this in the definitions unit. It offers barebones instructions for two common situations—those in which the flight was from an effort to arrest for an offense committed in the officer’s presence or view and those in which the flight was from an effort to make an investigatory stop based on reasonable suspicion. In some situations, of course, more and different law may be required to permit the jury to make a determination on the lawfulness of the action from which the state contends the accused fled.

Use of Vehicle “While in Flight.” To aggravate the offense to a third-degree felony, the state’s evidence must prove the use of a motor vehicle during the flight. In Griego v. State, the court found that proof that the defendant learned after getting out of the vehicle that officers were, and had been, attempting to detain him did not necessarily support a finding that before stopping and getting out of the vehicle the defendant knew officers were attempting to arrest or detain him and that he knowingly fled from them. Griego, 345 S.W.3d at 754.

Again, the instruction provides no elaboration on the statutory terminology. No statutory definition of the phrase appears in the Penal Code and the statutory terminology consists of phrases commonly used.