Evading Arrest Lawyer In Orange, TX
Evading arrest under Texas Penal Code § 38.04 turns on one question more than any other: was the person fleeing in a vehicle. On foot it is a Class A misdemeanor, and behind the wheel it is a third degree felony even with no prior record. This page covers the elements, the levels, defenses and the process in the county.
What Is Evading Arrest In Texas?
Evading arrest or detention under Texas Penal Code § 38.04 means intentionally fleeing from a person the actor knows is a peace officer who is attempting lawfully to arrest or detain them. On foot it is a Class A misdemeanor. Using a vehicle or watercraft makes it a third degree felony, and the lawfulness of the stop is an element the state must prove.
Source: Texas Penal Code Chapter 38, Obstruction and Evading
Understanding Texas Law
How Does Texas Law Define Evading Arrest?
Evading arrest or detention is defined in Texas Penal Code § 38.04. A person commits the offense if they intentionally flee from someone they know is a peace officer or federal special investigator who is attempting lawfully to arrest or detain them.
The definition has three parts that matter in practice. The flight has to be intentional. The person has to know the pursuer is a peace officer, which is where lights, sirens, uniforms and marked units come in. And the officer has to be acting lawfully.
"Flee" does not require a high speed chase. Texas courts have held that slowly driving on after an officer signals to pull over can be enough, if the state proves the person was intentionally refusing to stop.
What the state must prove beyond a reasonable doubt:
- The person intentionally fled
- The person knew the pursuer was a peace officer or federal special investigator
- The officer was attempting lawfully to arrest or detain the person
- For the felony level, that a vehicle or watercraft was used, or that an injury or death resulted
How the level of the charge is set under § 38.04:
- On foot, no prior evading conviction: Class A misdemeanor
- On foot, with a prior evading conviction: state jail felony
- In a vehicle or watercraft: third degree felony
- Another person suffers serious bodily injury because of the officer's attempt to catch the person fleeing: third degree felony
- Another person dies as a direct result of that attempt: second degree felony
The statute also sets separate levels when a tire deflation device is used against a pursuing officer.
An officer who had no reasonable suspicion to stop someone was not lawfully detaining them, and the statute requires a lawful attempt.
Penalties And Consequences
What Are The Penalties For Evading Arrest In Texas?
The same statute can produce a misdemeanor or a second degree felony. These are statutory limits, not predictions of what will happen in any one case.
Up to one year in county jail and $4,000.
2 to 10 years and up to $10,000.
2 to 20 years and up to $10,000.
- On foot, first offense
- Class A misdemeanor. Up to one year in county jail and a fine of up to $4,000.
- Prior evading conviction
- State jail felony. 180 days to 2 years in a state jail and a fine of up to $10,000.
- In a vehicle
- Third degree felony. 2 to 10 years in prison and a fine of up to $10,000.
- Death results from the pursuit
- Second degree felony. 2 to 20 years in prison and a fine of up to $10,000.
- Deadly weapon finding
- Possible when a vehicle was used in a manner capable of causing death or serious bodily injury. It limits judge-ordered probation and delays parole eligibility.
- Record
- A felony conviction is a permanent public record and can affect firearm rights, jobs and licenses.
Evading rarely arrives alone. A pursuit can add charges for the reason of the stop, such as a DWI, drug possession or a crash.
Real Questions
What Do People Ask About Evading Arrest In Texas?
Is fleeing in a car always a felony?
Does the stop have to be lawful?
What if I pulled over slowly or went to a well lit place?
Can I be charged if a passenger or I ran after the car stopped?
Can the charge be reduced?
Possible Defenses
How Can Evading Arrest Be Defended?
Because § 38.04 requires an officer "attempting lawfully to arrest or detain," the reason for the stop becomes an element the state has to prove. That puts the first seconds of the encounter under review.
An attorney looks at the video, the officer's report and the scene to see what the state can prove. No result can be promised.
Video often tells the story of a pursuit.
Patrol and body camera video can show when emergency lights and siren came on, how the driver reacted, and how far and fast the vehicle moved. Dispatch audio, 911 calls and dash video can be compared with the report.
Constitutional issues include the legality of the stop and any search that followed.
The Reason For The Stop
What traffic violation or suspicion did the officer rely on to initiate the stop?
Knowledge Of An Officer
Could the driver see or hear that a peace officer was signalling?
Intent To Flee
Does the evidence show intentional flight, or a delay in finding a safe place to stop?
Identity Of The Driver
Can the state prove who was driving, not just whose vehicle it was?
The Deadly Weapon Allegation
Is the finding supported by how the vehicle was actually driven?
Injury Or Death
Did any injury result directly from the officer's attempt to apprehend the person?
Local Process
What Happens After An Evading Arrest In Orange County?
The level decides which court hears the case and whether a grand jury gets involved at all.
Arrest And Bond
After booking, a magistrate sets bond. On a vehicle case the charge is a felony from the start, so the bond reflects a felony.
Grand Jury
A felony evading case has to be presented to a Orange County grand jury, which decides whether to return an indictment. A misdemeanor proceeds on a complaint and information instead.
Discovery
The defense can ask for the state's evidence, including pursuit video, under Code of Criminal Procedure art. 39.14.
Court Settings
The case is set for a plea, a dismissal or a trial.
- Where it is filed
- A misdemeanor evading case is filed in one of the Orange County Courts at Law. A felony case goes to one of the county's district courts: 128th District Court, 163rd District Court, and 260th District Court.
- Who prosecutes
- The Orange County District and County Attorney's Office, which handles both the misdemeanor and felony levels.
- Who makes the arrest
- Orange Police Department, Orange County Sheriff's Office, Texas DPS Highway Patrol, Vidor Police Department, Bridge City Police Department, Pinehurst Police Department, or West Orange Police Department.
- Where you are booked
- The Orange County Correctional Facility at 205 S Border Street.
- If the case is appealed
- The Ninth Court of Appeals in Beaumont.
If someone is hurt in a crash during the flight, prosecutors may add a separate offense such as aggravated assault. When a deadly weapon finding is entered on a felony evading conviction, the case is treated like the offenses on the 3g statute list for probation and parole purposes.
Next Steps
What Should You Do After An Evading Arrest Charge?
These steps are general information, not advice for any one person.
Do Not Discuss The Pursuit
Statements about whether you saw the lights can become key evidence.
Note The Date And Place
Write down where and when the stop began and what you saw and heard.
Ask For Video Preservation
Patrol and body camera video can be overwritten, so speak to a lawyer promptly.
Keep Court Papers
Save the bond, warrant and every notice.
Check For Other Charges
Ask what else was filed from the same event.
Avoid Social Media
Do not post about the stop or the pursuit.
Talk to a lawyer before deciding what to do. Mitchell Law Firm offers a confidential conversation about an evading arrest charge in Orange County. The earlier the video is requested, the more of it is available.
Official Texas Sources
Read The Law Behind This Page
- Texas Penal Code Chapter 38: Evading arrest or detention and resisting arrest
- Texas Penal Code Chapter 12: Punishment for misdemeanors and felonies
- Texas Penal Code Chapter 1: Definitions, including serious bodily injury and deadly weapon
- Texas Transportation Code Chapter 545: Rules of the road
- Texas Code of Criminal Procedure Chapter 14: Arrest without warrant
- Texas Code of Criminal Procedure Chapter 38: Evidence in criminal actions
- Texas Code of Criminal Procedure Chapter 39: Discovery of the state's evidence
Who Handles Your Case
The Texas Lawyer Who Speaks Science
Attorney Brennon Mitchell isn't just a seasoned Orange trial lawyer. He's one of the few in Texas, and the entire country, to earn the prestigious title of an ACS-CHAL Forensic Lawyer-Scientist. That means he's gone beyond the courtroom and into the laboratory, receiving in-depth, hands-on training in forensic chromatography, the same kind of testing used by crime labs to try and convict Texans every day.
What does that mean for you?
It means when the state uses blood alcohol or drug testing to try to prove its case, Mr. Mitchell knows how to challenge it. He's trained to:
- Analyze lab results and spot faulty science
- Cross-examine forensic experts with precision
- Break down complex chemical evidence in plain language for juries
This is not the kind of background you find in most criminal defense attorneys, and it could make the difference between a conviction and a clean slate.
Brennon graduated from Texas A&M University School of Law and practices from offices in Orange and Conroe.
Client Reviews
What Clients Say About Brennon Mitchell
Prior results do not guarantee a similar outcome. Every case is different and is decided on its own facts.
Related Traffic Charges
Other Criminal Traffic Charges In Orange, TX
A pursuit that ends in a crash or an injury can bring more than one charge out of the same few minutes. See the full Traffic Violations defense overview for Orange.
Failure To Stop And Give Information
Leaving a collision that damaged a vehicle without exchanging information. A Class B misdemeanor once the damage reaches $200.
Failure To Stop And Render Aid
Leaving a collision where someone was hurt or killed. A felony when serious injury or death results, up to second degree for a death.
Reckless Driving
Driving with wilful or wanton disregard for safety. A jailable misdemeanor, not a ticket you can pay by mail.
Street Racing
Racing on a highway under Transportation Code § 545.420. A Class B misdemeanor at first, with a mandatory impound and a one year license suspension on conviction.
Street Racing With Bodily Injury
When a race on a public road injures or kills someone, § 545.420 makes it a third or second degree felony.
Common Questions
Evading Arrest Questions People In Orange Ask
Is evading arrest in a car a felony in Orange, TX?
Under Texas Penal Code § 38.04, using a vehicle or watercraft while fleeing from a peace officer is a third degree felony. That carries 2 to 10 years in prison and a fine of up to $10,000. It applies to a first offense. A prior evading conviction is not required for the felony level when a vehicle is involved.
What is the difference between evading arrest and resisting arrest in Orange County?
Evading arrest under § 38.04 is intentionally fleeing from an officer who is lawfully trying to arrest or detain you. Resisting arrest under § 38.03 is using force against an officer who is making an arrest or search. One is about running away. The other is about physical force against the officer. They are separate offenses with separate elements.
Can a car be called a deadly weapon in an Orange evading arrest case?
Texas law allows a motor vehicle to be treated as a deadly weapon when the way it was used or intended to be used was capable of causing death or serious bodily injury. A deadly weapon finding in the judgment changes the rules for judge-ordered community supervision and for parole eligibility, which is why the wording of the charging document matters.
What does the state have to prove in an evading arrest case in Orange, TX?
The state has to prove that the person intentionally fled, that they knew the person pursuing them was a peace officer, and that the officer was lawfully attempting to arrest or detain them. If the attempted detention was not lawful, the statute is not met. Each element has to be proven beyond a reasonable doubt.
What happens if someone is hurt during a police chase in Orange County?
Section 38.04 raises the offense to a third degree felony if another person suffers serious bodily injury as a direct result of the officer's attempt to apprehend the person fleeing. If another person dies as a direct result, it becomes a second degree felony with a range of 2 to 20 years. Separate charges can also be filed for the crash itself.
What if I did not see the police lights in Orange, TX?
Knowledge is an element. The state has to show the person knew the pursuer was a peace officer and was intentionally fleeing. Video can show when the lights and siren came on, the distance travelled, and whether the driver could see or hear them. A person who did not realize an officer was signalling is in a very different position from one who saw it and kept going.
Mitchell Law Firm, PLLC
A Pursuit Lasts Minutes. The Charge Lasts Longer.
Patrol car and body camera video record the pursuit from the first light to the last. The earlier it is reviewed, the more options remain open.
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