Johnson v. State · 634 S.W.2d 695

W.C. Davis, J., concurring, at 697, n. 1

How later courts described this case

W.C. Davis, J., concurring, at 697, n. 1

Written by the judges who cited it.

Later courts went against this

Overruled in part, on other grounds by Jackson v. State, 718 S.W.2d 724 (1986)
634 S.W.2d 695, 695 (Tex.Crim.App. [Panel Op.] 1982), overruled in part on other grounds, Jackson v. State, 718 S.W.2d 724, 727 (Tex.Crim.App.1986);
Court of Criminal Appeals of TexasSep 24, 19863 citing opinionsother groundsin partRead it

The opinion

W. C. DAVIS, Judge,

concurring.

Because I believe that there is sufficient evidence that appellant knew the officers were attempting to arrest him, I concur in the affirmance of the judgment.

*697 I cannot join, however, in holding that such knowledge is not an element of the offense. 1

The culpability required to make conduct criminal may be with regard to the act itself, to its results, or to the surrounding circumstances. Sec. 6.03, V.T.C.A. Penal Code. 2

Sec. 38.04, V.T.C.A. Penal Code provides:

“(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him.

(b) It is an exception to the application of this section that the attempted arrest is unlawful.

The plain meaning of the language of the statute is that the actor intend his action and be aware of surrounding circumstances including that the person from whom the actor flees is a peace officer attempting to arrest the actor. 3

.Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977); Rodriguez v. State, 578 S.W.2d 419 (Tex.Cr.App.1979); and Hazkell v. State, 616 S.W.2d 204 (Tex.Cr.App.1981) do purport to set out the elements of Sec. 38.04, V.T.C.A. Penal Code, and all omit reference to an actor’s knowledge of a peace officer’s intent to arrest. In none of these case, however, was the omission of such element the subject of litigation.

Alejos distinguished the elements of Sec. 38.-04 with those of Art. 6701d, Sec. 186, Tex. Civ.St. to show them not to be in pari materia. The addition of an element of knowledge that arrest was intended would enhance the distinction drawn therein. Rodriguez was decided upon the lack of proof that the arrest was lawful. No other element was at bar. Hazkell dealt with the sufficiency of a charging instrument that failed to allege the lawfulness of the arrest.

. For a discussion of a similar question of required knowledge of the surrounding circumstances in the context of alleged unauthorized use of an automobile, see Musgrave v. State, 608 S.W.2d 184, 191 (Tex.Cr.App.1980) (concurring opinion on State’s Motion for Rehearing).

. Even the very name of the offense is “Evading Arrest" [emphasis added], not evading a peace officer. A separate offense of “fleeing or attempting to elude a police officer” exists as Art. 6701d, Sec. 186, Tex.Civ.St. See Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977).