Comment

Under Tex. Penal Code § 38.05, the offense of hindering apprehension can be committed in a number of ways. The instructions in this chapter cover several of the more common uses of the statute, which include situations in which the basic accusation is that the defendant hindered the apprehension of a person sought by police officers. The instruction at CPJC 38.8 includes the defense provided for in Tex. Penal Code § 38.05(b), covering certain situations in which a warning was given in connection with an effort to bring another into compliance with the law.

Culpable Mental State. No culpable mental state beyond those explicitly prescribed by Tex. Penal Code § 38.05 is required. Tex. Penal Code § 6.02(b), (c) is not applicable because Tex. Penal Code § 38.05(a) prescribes a culpable mental state—the intent to hinder the arrest, prosecution, conviction, or punishment of another. One decision by the Texas Court of Criminal Appeals may, however, be read as suggesting more is demanded.

In Garcia v. State, 640 S.W.2d 939 (Tex. Crim. App. [Panel Op.] 1982), the indictment alleged Garcia did “intentionally with intent to hinder the arrest of Lee Roy Licon by providing and aiding in providing said Lee Roy Licon with the means of avoiding arrest or affecting escape, to wit: by placing him in a car and attempting to escape before the officers arrived to arrest Lee Roy Licon.” Garcia, 640 S.W.2d at 940. The jury instructions required the jury to find in part that Garcia “unlawfully, knowingly or intentionally hinder[ed] the arrest of Leroy [sic] Licon.” Garcia, 640 S.W.2d at 941. The jury instructions were held fundamentally defective because knowledge was neither provided for in the statute nor pled in the information.

Garcia might be read as suggesting that the charging instrument must allege not only that the defendant had the intent to hinder the arrest, prosecution, conviction, or punishment of another but also that the defendant acted intentionally in some sense. Charging instruments, in fact, sometimes do this. See Teal v. State, 230 S.W.3d 172, 174 (Tex. Crim. App. 2007) (indictment alleged appellant “intentionally, with intent to hinder the arrest, prosecution, or punishment of Curtis Brown for the offense of Failure to Comply with Registration as a Sex Offender, did harbor or conceal Curtis Brown”).

In a footnote, however, Garcia seemed to make clear that only the culpable mental state explicitly required by Tex. Penal Code § 38.05 is demanded: “The word ‘intentionally’ is superfluous, since the statutory intent to hinder an arrest is alleged.” Garcia, 640 S.W.2d at 941 n.3.

Hindering apprehension is a felony only if the state proves the accused “knew that the person they harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony.” Tex. Penal Code § 38.05(d). This appears to require proof that the defendant knew the legal nature of the offense that the aided person was arrested for, charged with, or convicted of.

Texas Penal Code Section 38.05(d) Defense. Under Tex. Penal Code § 38.05(d), a warning does not constitute a crime if “the warning was given in connection with an effort to bring another into compliance with the law.” The Committee was concerned that the statutory language does not make clear what this requires. Is it enough if the accused was motivated by a desire to bring another into compliance? The language suggests not and perhaps that there must be some other action constituting the effort. Otherwise, there is no effort for the warning to be “in connection with.”

Definitions of “Harbor” and “Conceal.” Under Tex. Penal Code § 38.05(a)(1), the defendant must “harbor or conceal” the other individual. Case law suggests the terms harbor and conceal have widely-accepted plain meanings and need not be defined in the instructions:

Urbanski v. State, 993 S.W.2d 789, 793 (Tex. App.—Dallas 1999, no pet.) (citations omitted). “[T]he word ‘conceal’ as used in sections 32.22 and 38.05 reasonably includes both ‘the act of refraining from disclosure’ and ‘the act of removing from sight or notice or hiding . . . .’ ” Rotenberry v. State, 245 S.W.3d 583, 589 (Tex. App.—Fort Worth 2007, pet. ref’d).

The discussion in Rotenberry raises one possible caveat. It suggests that refraining from disclosure may be concealment for purposes of the offense of hindering. Rotenberry, 245 S.W.3d at 589. This interpretation is unlikely, in view of the limited provision in Tex. Penal Code § 6.01(c), for liability based on omissions. However, if the evidence in a particular case might be construed as relying on the accused’s failure to disclose information about the person sought, the instruction should make clear that “conceal” requires affirmative action.