Jackson v. State

*728 MeCORMICK, Judge,

dissenting.

The majority today puts on its legislative caps and overrules precedent and in contravention of specific legislative intent requires the State to plead an additional element under Y.T.C.A., Penal Code, Section 38.04. Specifically, the State will be required to plead that a defendant knows that the officer pursuing him is attempting to arrest him.

In a line of cases beginning with Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977) (rehearing en banc), this Court listed the elements of evading arrest as:

(1) a person

(2) intentionally flees

(3) from a peace officer

(4) with knowledge he is a peace officer

(5) peace officer is attempting to arrest defendant

(6) the attempted arrest is lawful.

See also, Johnson v. State, 634 S.W.2d 695 (Tex.Cr.App.1982); Hazkell v. State, 616 S.W.2d 204 (Tex.Cr.App.1981); Rodriguez v. State, 578 S.W.2d 419 (Tex.Cr.App.1979).

The appellant in Hazkell asserted error for failure to allege in the charging instrument that the defendant knew that the pursuing officer was attempting to make a lawful arrest. Hazkell v. State, supra. By not overruling Hazkell , I read the majority here to be in agreement with the decision there not requiring the State to affirmatively plead that a defendant knows a police officer is attempting to make a lawful arrest. Given the required level of proof such a decision would lay upon the State, satisfaction of such a burden would be highly speculative at best.

With the advent of the majority opinion today, however, the State will be required to plead that the defendant knows his pursuer is a police officer and that the officer is attempting to arrest him. The majority has in effect destroyed the logical inference surrounding the officer’s conduct and implicitly demonstrated by the accused’s decision to flee in the first place. Up to this time, it has been necessary for the State to prove that the pursuing officer was in fact attempting a lawful arrest based upon probable cause. Today, the majority adopts the position of the Court of Appeals that “[t]he gravamen of the offense is the evasion of an arrest, not the evasion of a police officer.” Jackson v. State, 690 S.W.2d 686 (Tex.App.—Houston [1st] 1985). While well intended, such phrasing ignores the legislative intent of the “flight” statutes. V.T.C.A., Penal Code, Section 38.03, (resisting arrest) applies to flight where force is used against a peace officer. V.T.C.A., Penal Code, Section 38.07, (escape) applies only to flight after arrest, after the defendant becomes cognizant that he has been placed in custody by a police officer. Section 38.04, supra, a relative newcomer in relation to the other “flight” statutes, provides a misdemeanor sanction for non-forceful evasion of arrest by flight. See, The Practice Commentary to Section 38.04; The Explanatory Comment of Branch’s Texas Annotated Penal Code, 3rd Ed., Volume 3, Section 38.04.

In affirming the lower court decision here, the majority finds that the writer was correct in stating:

“The language in Section 38.04 is clear and unambiguous, and there is only one reading consistent with grammatical structure of the statute: a defendant can be convicted of evading arrest only if he is ‘aware that the person from whom he is fleeing is a peace officer’ who is ‘attempting to arrest him.’ We conclude that the defendant’s knowledge that a police officer is trying to arrest him is an essential element of the offense of evading arrest.” (Emphasis added). Jackson, supra.

A brief analysis of the history behind the adoption of Section 38.04 illustrates the fallacy of the Appeals’ Court’s position.

After five years of effort, the State Bar Committee on Revision of the Penal Code in 1970 published its final draft of the new penal code. See, A Proposed Revision (West Publ.Co., October 1970). As drafted, the proposed Section 38.04(a) read as follows:

“Section 38.04. Evading Arrest

*729 (a) An individual commits an offense if he intentionally flees from a person he knows is a peace officer who he knows is attempting to arrest him.” (Emphasis added).

However, as finally passed by the Legislature in 1973, the second mens reas requirement was deleted:

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

The 1973 enactment therefore clearly deleted the language “who he knows is ...” which prescribed an additional awareness requirement to be pled by the State. Yet it is that very requirement — that a person must know that there is an attempt to arrest him — that this Court now adopts as an element under Section 38.04, supra.

I submit that in deciding “ there is only one reading consistent with the grammatical structure of the statute ...” the Court of Appeals judicially construed the language of Section 38.04 contrary to the clear and unambiguous intent of the Legislature.

The cardinal rule of statutory interpretation is to ascertain the legislative intent in enacting a statute. Faulk v. State, 608 S.W.2d 625 (Tex.Cr.App.1980); Minton v. Frank, 545 S.W.2d 442 (Tex.1976). The Court of Criminal Appeals cannot substitute its own judgment for the judgment and discretion of the Legislature in statutory matters. Ex parte Davis, 412 S.W.2d 46 (Tex.Cr.App.1967). Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed; it is not for the reviewing courts to add or subtract from such a statute. Id.; Ex parte Levinson, 160 Tex.Cr.R. 606 , 274 S.W.2d 76 (1955). The legislative intent and meaning of a statute is to be based upon the language found in the statute itself. Faulk, supra.

Here, there is no indication that the Court of Appeals looked to or relied upon the intent behind the passage of Section 38.04. The provision was enacted in an effort to deter the incidence of forceful confrontation between citizen and peace officer in the streets, by shifting the question of probable cause for arrest to the courtroom. See, The Practice Commentary to Section 38.04, supra. The deletion of the second knowledge requirement from the original final draft demonstrates the unmistakable intent of the Legislature to require knowledge only that the person from whom the party is intentionally fleeing is a peace officer. By placing the language of modification back into the statute so as to get a “consistent and grammatical structure,” the Court of Appeals has reintroduced into Section 38.04 what the Legislature in fact removed. It is not a proper function of the judiciary to legislate by ascribing to words and phrases a distorted meaning at substantial variance with the meaning ascribed by the Legislature. Williams v. State, 698 S.W.2d 266 (Tex.Cr.App.1985).

The Court of Appeals’ declaration as to the gravamen of the instant offense also ignores the realistic, common sense intertwining of the underlying rationale for the pursuit and the person who is in pursuit. It is in the natural order of things, after all, that it is a peace officer who will be evaded, since that officer is attempting to make the arrest.

Given the clear and precise wording of the statute in proper context, the fact that appellant here “did intentionally flee from ... a peace officer lawfully attempting to arrest the defendant, knowing that the complainant was a peace officer,” is sufficient to give appellant proper notice of the charges against him and to show knowledge that appellant was aware of her impending arrest. Indeed, if appellant was not aware that the pursuing officer was attempting to arrest her, one wonders why she fled in the first place.

Because I do not believe that it is the proper function of the courts to invade the province of the legislative field, and disagree that the information here is fundamentally defective, I respectfully dissent. See Brazos River Authority v. City of *730 Graham, 163 Tex. 167 , 354 S.W.2d 99 (1962).

WHITE, J., joins in this dissent.