Being arrested can be stressful enough on its own. But in some cases, the arrest itself can lead to additional criminal charges. Even if you’re never actually charged with the offense that initially drew the attention of police, you could still face allegations such as resisting arrest, evading arrest or detention, or failure to identify.

These charges often depend heavily on exactly what happened during the encounter with law enforcement. Video footage, witness statements, police reports, dispatch records, and an officer's justification for the detention or arrest can all become important evidence.

If you've been arrested in Austin, you may be struggling to understand how a confusing or fast-moving encounter with police turned into multiple criminal allegations. You don't have to figure out what happened, or what comes next, on your own.

Defense Attorney for Austin Arrests

Michael & Associates Criminal Defense Attorneys represents people accused of resisting arrest, evading arrest or detention, failure to identify, and other criminal offenses throughout Austin and Travis County.

Our Austin criminal defense attorneys regularly represent clients in Travis County criminal courts and review evidence commonly involved in arrest-related charges, including body-camera footage, dash-camera footage, 911 and dispatch records, jail records, witness statements, and police reports. Because resisting and evading cases can develop within seconds, comparing an officer's written account with the available video evidence can be an important part of the defense investigation.

Our Austin team includes Dan Dworin, who is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Austin Managing Attorney James Fletcher has earned the ACS-CHAL Lawyer-Scientist designation. That combination of criminal-law and forensic training can be particularly useful when an arrest-related charge involves questions about police procedures, video evidence, intoxication allegations, or forensic evidence.

Probable Cause and Arrests in Texas

The Fourth Amendment protects people against unreasonable searches and seizures. Typically, the police need probable cause to make an arrest, although the precise legal requirements depend on whether the arrest is made with or without a warrant and the circumstances surrounding the encounter.

Texas Penal Code Chapter 38, “Obstructing Governmental Operation,” defines “custody” for purposes of the chapter and establishes offenses including failure to identify, resisting arrest, and evading arrest or detention.

Probable cause requires more than a hunch. Officers must have facts and circumstances that provide a reasonable basis for believing that a crime has been committed and that the person being arrested committed it.

This is a much lower standard than proof beyond a reasonable doubt, which is the standard prosecutors generally must meet to obtain a criminal conviction.

When an arrest is made under a warrant, an attorney can examine the warrant, supporting affidavit, and circumstances surrounding its execution. When police make a warrantless arrest, the defense can examine whether officers actually had lawful grounds to take the person into custody.

An unlawful arrest doesn’t automatically make every resulting criminal charge disappear. However, constitutional violations can affect whether evidence or statements obtained during the encounter may be used against you.

What is Resisting Arrest in Texas?

Under Texas Penal Code § 38.03, a person commits resisting arrest, search, or transportation if they intentionally prevent or obstruct someone they know is a peace officer, or a person acting in the officer's presence and at their direction, from carrying out an arrest, search, or transportation by using force against the officer or another person.

Simply arguing with an officer or refusing to cooperate does not necessarily amount to resisting arrest. The statute requires the use of force.

Resisting arrest is generally a Class A misdemeanor. A conviction can carry up to one year in county jail and a fine of up to $4,000. The offense can become a third-degree felony if a deadly weapon is used to resist the arrest or search.

Texas law also provides that it is generally not a defense to a resisting-arrest prosecution that the arrest or search itself was unlawful. However, the legality of the police encounter may still matter to other constitutional and evidentiary issues in the case.

Because resisting-arrest cases often turn on what physically occurred during a fast-moving encounter, body-camera footage, dash-camera footage, surveillance video, witness accounts, and medical evidence can be especially important.

What is Evading Arrest or Detention?

Under Texas Penal Code § 38.04, a person can be charged with evading arrest or detention if they intentionally flee from someone they know is a peace officer or federal special investigator who is lawfully attempting to arrest or detain them.

Intent is a key component. Prosecutors must prove more than the fact that someone continued walking or driving after an officer attempted to make contact. The state must establish that the person intentionally fled while knowing that law enforcement was attempting to lawfully arrest or detain them.

The seriousness of an evading charge depends on the circumstances and the person's criminal history. Evading on foot may be charged as a misdemeanor, while cases involving a vehicle or watercraft can result in felony charges. More serious felony penalties can apply in certain circumstances, including when someone suffers serious bodily injury or death as a direct result of an officer's attempt to apprehend the person while they are fleeing.

A defense attorney can review body-camera footage, dash-camera video, traffic-camera footage, witness accounts, and other evidence to determine whether the state can prove that the accused intentionally fled from a lawful arrest or detention.

What is Failure to Identify in Texas?

Texas Penal Code § 38.02 creates several different circumstances under which providing or withholding identifying information can become a criminal offense.

A person who has been lawfully arrested commits an offense if they intentionally refuse to provide their name, residence address, or date of birth after an officer requests that information.

The law is different for someone who has merely been detained. A person who has been lawfully detained, or who is a witness to a criminal offense, can commit an offense by intentionally providing a false or fictitious name, residence address, or date of birth to a peace officer who has lawfully requested the information.

Note: There is an important exception for drivers. If a motor vehicle operator is lawfully detained for an alleged violation of law, Texas law can make it an offense to fail to provide or display a driver's license when requested and then intentionally refuse to provide certain identifying information the officer requests.

In other words, simply refusing to identify yourself during a detention is not generally treated the same as refusing to identify yourself after an arrest, although different rules apply to motorists who are lawfully detained and fail to provide a driver's license and requested identifying information.

Failure to identify is usually a Class C misdemeanor when it involves refusing to provide identifying information after an arrest. The motorist offense described above is also generally a Class C misdemeanor. Providing false identifying information under the circumstances covered by the statute is generally a Class B misdemeanor. Penalties can be enhanced when the person was a fugitive from justice at the time of the offense.

Because the statute depends heavily on whether the person was arrested, detained, or acting as a witness, determining exactly what was happening when the officer requested identification can be critical to the defense.

Can You Be Charged Even If the Original Arrest Was Unlawful?

It’s possible. Texas law treats resisting arrest differently from some other arrest-related offenses.

For example, § 38.03 states that resisting arrest is not a defense to prosecution if the arrest or search was unlawful. By contrast, the evading-arrest statute requires police to be "lawfully attempting to arrest or detain" the person.

That distinction can make the circumstances leading up to the police encounter extremely important.

An attorney can examine why police initiated the encounter, whether they had reasonable suspicion or probable cause, what commands were given, what the accused allegedly did in response, and whether video or other evidence supports the officer's version of events.

What Our Attorneys Look for in an Arrest-Related Case

When we review a resisting arrest, evading arrest, or failure-to-identify case, we don't look only at what happened at the end of the encounter. We examine how the interaction with police began and what happened at each stage.

That can include determining why the officer initially approached or stopped you, whether the officer had reasonable suspicion for a detention or probable cause for an arrest, what instructions the officer gave, and whether body-camera or other video evidence matches the account in the police report.

Depending on the charge, our attorneys may also examine whether:

The officer was lawfully attempting to arrest or detain you
An investigative detention became an arrest
You knew the person attempting to detain or arrest you was a law enforcement officer
Alleged flight was intentional
The conduct alleged as resisting actually involved force against an officer or another person
Identifying information was requested during a detention or after an arrest
Body-camera, dash-camera, surveillance, traffic-camera, or bystander video captured the encounter
911 calls, dispatch records, witness statements, or medical records contradict or add context to the police account
Statements or other evidence were obtained in violation of your constitutional rights

The first steps taken after an arrest matter, too. In Travis County, an arrested person is brought before a magistrate, where issues such as probable cause, bail, and conditions of release may be addressed. Depending on the case, Travis County Pretrial Services may also become involved in the pretrial release process.

After release on bond, the bond paperwork generally provides instructions for the first court setting. Class A and Class B misdemeanor cases are generally handled in the Travis County Criminal County Courts at Law, while felony cases proceed through the Travis County district courts. Many criminal court proceedings take place at the Blackwell-Thurman Criminal Justice Center in downtown Austin.

These procedural stages can provide additional information for the defense. Our attorneys can review the probable cause affidavit, bond conditions, charging documents, police reports, available video, and other evidence as the case develops. The goal is to reconstruct the encounter from the beginning and determine whether prosecutors can actually prove every element of the charge.

How Michael & Associates Can Help After an Austin Arrest

Charges such as resisting arrest, evading arrest, and failure to identify can arise in chaotic situations where an officer's description of what happened may not tell the entire story.

Our Austin criminal defense attorneys can investigate the encounter from the beginning rather than looking only at the allegations contained in the arrest report. Depending on the case, that can include reviewing body-camera and dash-camera footage, interviewing witnesses, examining dispatch records, challenging the legality of a detention or arrest, and evaluating whether prosecutors can prove every element of the alleged offense.

Our Austin lawyers are also backed by a larger defense team that includes two ACS-CHAL Lawyer-Scientists, former prosecutors, former judges, former law enforcement officers, attorneys with advanced forensic training, and three Board Certified Criminal Law specialists.

Board Certification in Criminal Law by the Texas Board of Legal Specialization recognizes attorneys who have demonstrated substantial experience in criminal law, completed additional continuing legal education requirements, received evaluations from judges and attorneys, and passed a specialized examination.

Real Arrest-Related Michael & Associates Case Examples in Travis County

Resisting/evading arrest: The client faced multiple charges arising from the same encounter with police, including misdemeanor resisting/evading arrest and felony assault on a public servant. Both charges were dismissed.
Failure to identify: The client faced three separate cases: Failure to Identify, Failure to Appear, and Driving While License Invalid. Failure to Identify was never formally filed. The other two cases were handled in Travis County JP Precinct 4. Both were dismissed within about a month of being opened.

Contact Us Today for a Free Case Review

If you've been arrested in Austin or elsewhere in Travis County, contact Michael & Associates Criminal Defense Attorneys for a free case review. We'll explain what you're facing, examine the evidence against you, and begin identifying the strongest available defense.