Resisting Arrest Defense in Texas: Protecting Your Rights When Facing an Illegal Detention

A University of Chicago study found that resisting arrest charges are often applied to situations where the original arrest itself was questionable, making expert legal defense critically important.

Being charged with resisting arrest in Texas can feel like being punished for defending your constitutional rights. At Barton & Associates, Attorneys at Law, we understand that these charges often stem from confusion, fear, or a legitimate response to an improper police encounter. Our experienced criminal defense attorneys specialize in scrutinizing the circumstances that led to your resisting arrest charge, protecting your rights, and fighting for the best possible outcome in your case.

Understanding Texas Resisting Arrest Law: What Does It Actually Mean?

Under Texas Penal Code Section 38.03, resisting arrest occurs when a person “intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest or search of the actor or another by using force against the peace officer or another.”

Breaking down this legal definition reveals several elements the prosecution must prove beyond a reasonable doubt:

Key Elements of the Charge

1. Knowledge: You must have known the individual was a peace officer. This isn’t as simple as it sounds—officers in plain clothes or unmarked vehicles must properly identify themselves.
2. Intentional Action: Your actions must have been deliberate, not merely reflexive or accidental. Pulling away instinctively when grabbed, for example, differs from an intentional struggle.
3. Use of Force: The statute specifically requires “using force against” the officer. Mere verbal arguments, rude language, or passive non-compliance generally do not constitute resisting arrest under Texas law (though they might lead to other charges like failure to identify or interference).
4. Lawful Arrest: Perhaps most crucially, the officer must have been attempting to make a lawful arrest. If the underlying arrest was unlawful—lacking probable cause or a valid warrant—then your right to resist that arrest may be a valid legal defense.

Penalties for Resisting Arrest in Texas

Resisting arrest is typically charged as a Class A misdemeanor, which carries serious consequences:

• Up to one year in county jail
• A fine of up to $4,000
• A permanent criminal record that appears on background checks

However, the charge can be enhanced to a third-degree felony if the prosecution can prove you used a deadly weapon while resisting. A felony conviction carries penalties of 2 to 10 years in state prison and fines up to $10,000, plus the lifelong consequences of a felony record.

Common Scenarios & Misunderstandings That Lead to Charges

Resisting arrest charges frequently arise from misunderstandings and highly charged situations. We commonly see cases involving:

• Physical Reactions to Surprise: An individual startled by an officer’s approach may instinctively tense up or pull away, which an officer might interpret as resistance.
• Verbal Arguments Misconstrued as Resistance: While yelling at an officer isn’t wise, it typically doesn’t meet the “use of force” requirement. However, it can escalate a situation, leading to a physical encounter and subsequent charges.
• Asserting Your Rights: Politely questioning the reason for a detention or asking if you are free to go is your constitutional right, not resistance. Officers sometimes misinterpret this lawful questioning as defiance.
• Medical or Psychological Conditions: Individuals experiencing panic attacks, episodes related to PTSD, or other medical conditions may not respond to commands in a typical manner, which can be wrongly perceived as intentional resistance.
• Unlawful Arrests: When an officer lacks legal justification for an arrest, citizens have a recognized right to resist. Proving the unlawfulness of the initial arrest is a cornerstone of many successful defenses.

The Critical Question: Was the Underlying Arrest Lawful?

This is the most powerful aspect of a resisting arrest defense. Texas courts have consistently ruled that you cannot be convicted of resisting an unlawful arrest. An arrest is lawful only if the officer has:

• Probable Cause: Specific facts and circumstances that would lead a reasonable person to believe a crime has been or is being committed.
• A Valid Warrant: An arrest warrant issued by a judge based on probable cause.

If the officer lacked probable cause or a valid warrant, the arrest was unlawful. In such a scenario, your resistance, while perhaps unwise, may not be a criminal act. Our defense strategy begins with a thorough investigation into the justification for the initial detention or arrest.

Related Charges Often Filed Together

Resisting arrest rarely occurs in isolation. Prosecutors often add related charges, creating a more complex legal battle:

• Assault on a Peace Officer (Texas Penal Code 22.01): A more serious charge alleging you caused bodily injury to an officer. This is a felony.
• Evading Arrest or Detention (Texas Penal Code 38.04): Fleeing on foot or in a vehicle to avoid being arrested.
• Interference with Public Duties (Texas Penal Code 38.15): Actions that disrupt, but don’t necessarily use force against, an officer performing their duty.
• Failure to Identify (Texas Penal Code 38.02): Refusing to provide your name, residence address, or date of birth when lawfully arrested.

A comprehensive defense must address all related charges simultaneously.

Our Strategic Defense Approach at Barton & Associates

Facing a resisting arrest charge requires immediate and strategic action. Our proven defense process includes:

1. Immediate Case Review & Investigation

We start by obtaining and scrutinizing all evidence, including:

• Police reports and arrest affidavits
• Body-worn camera and dashcam footage
• Witness statements and civilian cell phone videos
• Medical records (if injury is claimed)

We look for inconsistencies between the officer’s report and the video evidence, a lack of clear commands, or an absence of the required “use of force.”

2. Challenging the Lawfulness of the Arrest

We file pretrial motions to examine the basis for the initial stop or arrest. If the officer lacked probable cause, we move to suppress all evidence obtained from the unlawful detention, which can cripple the prosecution’s case.

3. Building a Strong Legal Defense

Depending on the facts, we may assert several defenses:

• Defense of Illegality of Arrest: The officer had no legal right to arrest you.
• Lack of Intent: Your actions were reflexive, accidental, or caused by a medical condition.
• Mistake of Fact: You had a reasonable belief the person was not a police officer (e.g., plain clothes, unmarked car, failure to identify).
• Self-Defense: You used reasonable force to protect yourself from excessive or unlawful force by the officer.

4. Pursuing the Best Possible Resolution

Our goal is always to minimize the impact on your life. This may involve:

• Motion to Dismiss: If the arrest was unlawful or evidence is insufficient.
• Reduction of Charges: Negotiating to have the charge reduced to a lesser offense like disorderly conduct.
• Pretrial Diversion: For first-time offenders, we often seek programs that result in dismissal upon completion of community service or a class.
• Aggressive Trial Defense: If the state will not offer a fair resolution, our experienced trial attorneys are prepared to defend your rights before a jury.

The Lasting Consequences of a Conviction

Beyond jail time and fines, a conviction for resisting arrest can haunt your future:

• Employment: Many employers automatically reject applicants with any criminal record, especially one suggesting conflict with authority.
• Housing: Landlords routinely conduct background checks and may deny rental applications.
• Professional Licenses: Nurses, realtors, security guards, and many other professionals can have their licenses denied or revoked.
• Immigration Status: For non-citizens, a misdemeanor conviction can trigger deportation proceedings or make you inadmissible for future visas or citizenship.

What to Do If You Are Being Arrested

To protect yourself in the moment:

• Remain Calm and Compliant: Verbally state that you are not resisting. Avoid sudden movements.
• Clearly Assert Your Rights: You may say, “Officer, I am not resisting. I do not consent to any search. I wish to remain silent and would like to speak to an attorney.”
• Do Not Physically Resist: Even if you believe the arrest is wrong, physically resisting only creates more legal problems. The place to fight an unlawful arrest is in the courtroom, not on the street.
• Document Everything Afterwards: Write down every detail you remember, including officer badge numbers, car numbers, and witness contact information.

Why Choose Barton & Associates?

Our criminal defense team brings specific advantages to your resisting arrest case:

• Former Prosecutorial Experience: We understand how the state builds these cases from the inside, allowing us to anticipate their strategy.
• Focus on Constitutional Rights: We are passionate about protecting citizens from overreach and unlawful police actions.
• Trial-Ready Attorneys: We prepare every case as if it is going to trial, giving us maximum leverage in negotiations.
• Local Knowledge: We know the judges, prosecutors, and court procedures in San Antonio, Austin, and Corpus Christi courts.

Act Now to Protect Your Rights and Future

A resisting arrest charge is a serious matter that requires an immediate and powerful defense. The prosecution begins building its case from the moment you are booked.

Contact Barton & Associates, Attorneys at Law, today for a confidential case evaluation. Call our office at 210-500-0000. Let our experienced criminal defense attorneys analyze the circumstances of your arrest, protect your constitutional rights, and fight for a resolution that preserves your freedom and future.

Main Category: Criminal Defense
Practice Area Category: Misdemeanors
Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000