Opinion
PD-0963-19
01-17-2024
HARRY DONALD NICHOLSON, JR., Appellant v. THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS NAVARRO COUNTY
Richardson, J., delivered the opinion in which Keller, P.J., and Hervey, Newell, and Slaughter, JJ., joined. Yeary, J., filed a concurring opinion. Keel, J., concurred. Walker and McClure, JJ., dissented.
OPINION
Richardson, J.
Texas' current Evading Arrest or Detention statute reads: "A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him." The question is whether the government must prove a defendant knew that the attempted arrest was lawful. The answer is no. There is a dispute among the courts of appeals on whether the mens rea of knowledge applies to the lawfulness of the attempted arrest or detention. Nevertheless, the statute's history and purpose do not support the application of a suspect's knowledge to the lawfulness of a stop or arrest. Furthermore, requiring laypersons to comprehend the technical jurisprudence on when an arrest or detention is lawful is absurd. This leads us to conclude that the 1993 amendment that moved the lawfulness of the stop from an exception to prosecution to being part of the evasion offense was a non-substantive change.
Tex. Pen. Code § 38.04(a) (emphasis added).
Background
While sitting in his truck, parked at a gas station parking lot, Harry Donald Nicholson Jr. began throwing out tissues via his vehicle's window. An officer observed the litter on the ground and approached Appellant, asked for his information, and told him to pick up the tissues. Appellant provided the officer his driver's license number and exited the truck and began picking up the litter. The officer relayed Appellant's information to dispatch.
Dispatch responded that it was sending additional backup because Appellant had active felony warrants (including for evading arrest). It was disputed whether Appellant heard the dispatch over the radio mentioning the active warrants. When Appellant was done putting the litter into the trash can, the officer moved to handcuff Appellant and arrest him. However, Appellant maneuvered away from the officer and managed to get back to his truck, start the vehicle, and drive away. He did not get far.
Another officer's vehicle just entered the gas station parking lot. Appellant crashed into the police car. That officer was injured and Appellant was apprehended.
Procedural History
Appellant was charged with aggravated assault of a public servant and evading arrest or detention with a vehicle. A Navarro County jury convicted Nicholson on both charges and sentenced him to 60 years confinement to be served concurrently. In a single opinion adjudicating two appellate cause numbers, the Tenth Court of Appeals affirmed the aggravated assault charge but found that improper jury instructions regarding the evading arrest or detention charge egregiously harmed Nicholson. The Court of Appeals explained that the trial court did not include a required element of the offense in the jury charge-that Appellant knew that the officer was attempting to arrest or detain him. However, because the majority found the evidence sufficient to support his conviction for evading, the lower appellate court reversed and remanded the case for a new trial on the evading charge only.
Nicholson v. State, 594 S.W.3d 480, 481, 490 (Tex. App-Waco 2019) (adjudicating appellate cause numbers 10-18-00360-CR and 10-18-00359-CR).
In dissent, Chief Justice Gray argued that the knowledge mens rea should also apply to the lawfulness of the arrest or detention. Chief Justice Gray opined that Appellant should be acquitted under that interpretation of the statute because the State could not prove that Appellant knew the arrest or detention was lawful.
Appellant filed twin petitions for discretionary review challenging both rulings under consecutive cause numbers. Discretionary review for his aggravated assault conviction was refused so his 60-year sentence on that offense remains in place. Nevertheless, we granted Appellant's petition for discretionary review on the conviction for evading to clarify the elements of our evasion statute because our last authoritative interpretation on this statute occurred prior to the 1993 amendment.
See Jackson v. State, 718 S.W.2d 724 (Tex. Crim. App. 1986).
Statutory Interpretation
We review questions of law de novo. In performing the Court's constitutional role of interpreting the law, "we seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation. For this reason, this Court has long mandated a text-first approach to statutory interpretation. "We presume that every word has been used for a purpose and that each, word, phrase, clause, and sentence should be given effect if reasonably possible." This is because "[t]he statutory text is the best indicator of legislative intent." "If the plain language is clear and unambiguous, our analysis ends because the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute." "If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history." Statutory language is ambiguous if it's plain meaning is "doubtful" because it is reasonably "subject to two [or more] constructions." Absurd results are "consequences that the Legislature could not possibly have intended." "The rule is that a statute that is susceptible of more than one construction will be so interpreted as to secure the benefit intended; will best effect the legislative intent and so that it will be constitutional and valid."
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
See id.
O'Brien v. State, 544 S.W.3d 376, 384 (Tex. Crim. App. 2018).
Hughitt v. State, 583 S.W.3d 623, 631 (Tex. Crim. App. 2019) (internal quotes omitted).
Nguyen v. State, 359 S.W.3d 636, 642 (Tex. Crim. App. 2012) (internal quotes omitted).
Boykin, 818 S.W.2d at 785-86.
Sparks v. State, 174 S.W. 351, 352 (Tex. Crim. App. 1915).
Boykin, 818 S.W.2d at 785.
Baldridge v. State, 321 S.W.2d 309, 310 (Tex. Crim. App. 1959).
Ambiguity
The Evading Arrest or Detention Statute provides: "A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him." The question is whether the person must know that the law enforcement officer is attempting to lawfully arrest or detain him. That answer is no-he must simply know that the detaining or arresting person is a peace officer.
Tex. Penal Code §38.04(a) (emphasis added).
One reading of the statute suggests that the word "knows" distributes evenly to the entire subordinate remainder of the sentence. Supportive of this reading is the fact that there is no punctuation-commas, parenthesis, or other grammatical tools. The knowledge culpable mental state travels to the words after "investigator" unimpeded. Thus, under this first construction, the state must prove that the defendant knows three things: (1) the person is a peace officer or federal special investigator; (2) the person is attempting to arrest or detain him; and (3) the arrest or detention is lawful.
In Jackson v. State, our Court analyzed a prior version of the evading arrest law: "A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him." Jackson v. State, 718 S.W.2d 724 (Tex. Crim. App. 1986). Our Court held that the plain reading of the law makes it essential that a defendant knows the peace officer is attempting to arrest him. Id. at 726. We endorsed the view that "[t]he language in section 38.04 is clear and unambiguous, and there is only one reading consistent with grammatical structure of the statute" by requiring the State to prove that the defendant had knowledge of the attempted arrest. Id. (quoting Justice Bass from the preceding court of appeals opinion.).
A second reading applies the mental state only to knowing (1) the person is a peace officer or federal special investigator; and (2) the person is attempting to arrest or detain him. A number of appellate courts have adopted this approach. Under this understanding, while the detention or arrest must be lawful to reach conviction under the statute, the suspect does not need to know it is at the time of arrest or detention. Given that it is susceptible to multiple interpretations as evidenced by multiple courts of appeals, the text of the statute is ambiguous.
See e.g., Loewe v. State, No. 03-10-00418-CR, 2011 WL 350462 (Tex. App.-Austin Feb. 2, 2011, pet ref'd).
See eg, Celis v State, 416 S.W.3d 419, 449 (Tex Crim App 2013) (Cochran, J, concurring) ("[T]he presumption that the legislature intended a culpable mental state applies only to the criminal conduct or 'bad act,' not to every element of the offense. The culpable mental state must relate to the conduct (or the result), but not to any other element unless the legislature says so.").
The concurring opinion emphatically denies any ambiguity. See Andrus v. Texas, 140 S.Ct. 1875, 1888 (2020) (Alito, J., dissenting) ("And we really mean it!!!"). Yet, the disagreement even among the judges on this Court and the justices in the court below further demonstrates the statute's quality of being open to more than one interpretation.
Accordingly, we look to legislative history for further indicators of legislative intent. In 1993, the Texas Legislature amended the evading arrest statute. The legislature deleted: "It is an exception to the application of this section that the attempted arrest is unlawful or the detention is without reasonable suspicion to investigate." It simultaneously replaced that exception to prosecution with the word "lawfully" in describing the offense. Thus, given that the added term, "lawfully," deals with the same subject matter of now-repealed Subsection (b), it is more probable that the Legislature intended for the term to provide the same exception to prosecution as now-repealed-Subsection (b). Consequently, it is far more consistent and prudent to interpret the amendment as only a stylistic or non-substantive change.
Boykin, 818 S.W.2d at 785-86.
Tex. Gov't Code § 311.021(5) ("In enacting a statute, it is presumed that public interest is favored over any private interest.").
Baldridge v. State, 321 S.W.2d 309, 310 (Tex. Crim. App. 1959) ("The rule is that a statute that is susceptible of more than one construction will be so interpreted as to secure the benefit intended; will best effect the legislative intent and so that it will be constitutional and valid.").
Absurdity
Requiring the State to prove that a suspect knows that the seizure of his person is unlawful at the time of his arrest or detention leads to absurd results. At first pass, requiring that the defendant knows that the attempted arrest is lawful would prove absurd. But circumstantial evidence could provide proof for applying mens rea to the lawfulness for the stop.
Appellant's interpretation leads to absurd results when the defendant becomes responsible to determine the lawfulness of the stop. The factual totality that motivates law enforcement in each circumstance to arrest or detain may be vastly different from what an arrestee or detainee may understand them to be. This interpretation would essentially ask an arrestee or detainee-who may have conflicting criminal motivations to avoid detention or arrest-to objectively evaluate his own detaining officer, often his accuser, without a complete understanding of the officer's training, observations, and knowledge of the facts. The question on the lawfulness of a stop or arrest is more appropriately handled by a trial court where the totality of facts may be developed from testimony and evidence, and arguments from both sides can be made. Thus, whether an arrest or detention is lawful or unlawful has resulted in casebooks of technical and fact-intensive jurisprudence. And the federal right to be free from search or seizure is only one layer of the analysis. The state constitution and statutory law on arrests and detentions, and their accompanying case law, create additional complexity.
Concerns that drivers would be able to drive off without consequences when a police officer attempts to pull a driver over are unavailing. There is a separate criminal offense in our Transportation Code that does not require a mens rea on the lawfulness of the stop. Tex. Transp. Code § 545.421 FLEEING OR ATTEMPTING TO ELUDE POLICE OFFICER; OFFENSE. (a) A person commits an offense if the person operates a motor vehicle and willfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop.
The circumstances contemplated here include scenarios where a suspect is intoxicated and/or otherwise mentally impaired. Given that many crimes happen when a suspect is under the influence of intoxicants, it would be ludicrous to require suspects to adjudge the lawfulness of a stop or arrest when they're not in full possession of their mental faculties.
As the State aptly notes, this would run counter with the Fourth Amendment doctrine that stops and arrests are to be reviewed from an objective reasonable person standard-and not from the subjective perspective of the suspect and sometimes even the detaining officer. State's Br. at 21.
The State also contemplates that officers in some cases may be operating on information that is confidential in order to protect a source as part of a larger investigation or situation that is quickly evolving. State's Br. at 19.
See e.g., Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (West 1987) (expounding in four volumes on the current understanding of Fourth Amendment law and its case law developments from across the United States).
Construing "lawfully" to be the equivalent of now-repealed Subsection (b) is also more consistent with the statute's purpose-which we doubt has changed as a result of the 1993 amendment. We have previously said that the purpose of the evasion statute is "to deter flight from arrest by the threat of an additional penalty, thus discouraging forceful conflicts between the police and suspects." Adding a mens rea to the lawfulness of the stop does nothing to deter flight. Rather, it would actually incentivize flight with suspects being able to claim ignorance on arrest and detention law. The exception to prosecution would swallow the enforceability against evading arrest or detention-rendering the statute unworkable and meaningless. This leads us back to the conclusion that the amendment could only have been a stylistic or non-substantive change.
O'Brien v. State, 544 S.W.3d 376, 384 (Tex. Crim. App. 2018) ("We presume that every word has been used for a purpose and that each, word, phrase, clause, and sentence should be given effect if reasonably possible.").
Alejos v State, 555 S.W.2d 444 (Tex. Crim. App. 1979) (op. on reh'g) (citing Searcy & Patterson, "Practice Commentary.").
See Baldridge v. State, 321 S.W.2d 309, 310 (Tex. Crim. App. 1959) ("The rule is that a statute that is susceptible of more than one construction will be so interpreted as to secure the benefit intended; will best effect the legislative intent and so that it will be constitutional and valid.").
Conclusion
In summary, the evasion statute is ambiguous because it has two reasonable constructions where one construction leads to an absurd result. Considering its legislative history and the apparent purpose of the statute, we consequently construe Texas Penal Code § 38.04(a) to not require the mens rea to be applied to the lawfulness of the detention or arrest. The elements of the evasion statute are: (1) a person (2) intentionally flees (3) from a peace officer or federal special investigator (4) with knowledge he is a peace officer or federal special investigator (5) with knowledge the peace officer or special investigator is attempting to arrest or detain the defendant, and (6) the attempted arrest or detention is lawful.
Because Appellant was egregiously harmed when the jury charge failed to include the element that Appellant knew the officer was attempting to arrest him, we affirm the Court of Appeals in reversing Appellant's conviction of evasion of arrest. We also agree with the Court of Appeals that there was sufficient evidence to conclude that Appellant knew the officer was attempting to arrest or detain him (Appellant broke away from the officer attempting to handcuff him). Therefore, we remand for a new trial.
Yeary, J., filed a concurring opinion.
A person commits an offense if he intentionally flees from a person he knows is a peace officer . . . attempting lawfully to arrest . . . him.Tex. Penal Code § 38.04(a) (emphasis added). The Court says that this statute does not require the accused to know that the officer's attempt to arrest him is lawful. I strongly disagree.
The Court readily acknowledges the primacy of plain language in the process of construing statutes. See Majority Opinion at 4 ("If the plain language is clear and unambiguous, our analysis ends because the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.") (quoting Nguyen v. State, 359 S.W.3d 636, 642 (Tex. Crim. App. 2012)). But then, even though the language of the statute at issue in this case is both clear and unambiguous, the Court declares it to be both ambiguous and even absurd so that it may then, under this Court's precedents, declare itself to be at liberty to announce a construction of the statute that it prefers.
This is the very opposite of a textualist approach to statutory interpretation. The Court says: "Thus, given that the added term, 'lawfully,' deals with the same subject matter of now-repealed Subsection (b), it is more probable that the Legislature intended for the term to provide the same exception to prosecution as now-repealed-Subsection (b)." Majority Opinion at 7 (emphasis added). It also says: "Construing 'lawfully' to be the equivalent of now-repealed Subsection (b) is also more consistent with the statute's purpose-which we doubt has changed as a result of the 1993 amendment." Id. at 9 (emphasis added). These statements make clear that the Court's approach is not to apply the clear and unambiguous meaning of the statutory text. Instead, it seeks to give effect to what it believes "is more probable that the Legislature intended" to say. It does so because it "doubts" that the "purpose" of the law was what the Legislature actually said. It thus reveals itself to be more concerned with what it thinks the Legislature was hoping to achieve than what the Legislature actually did achieve.
In the process, the Court makes several other major mistakes. First, it overlooks the plain import of a 1993 amendment to the applicable statute, declaring that the amendment actually preserves an "exception" to the offense. But the Legislature could not have more clearly eliminated the former exception in favor of adding to the culpable mental state in the definition of the offense itself. The Court then declares the plain meaning of the current iteration of the statute to lead to a result that is absurd merely because that result seems unreflective of what it perceives to be the legislative objective-which objective the Court gleans from sources wholly apart from the language of the statute itself. I cannot follow this approach.
For the reasons I explain in the ensuing pages, however, I nevertheless agree with the Court's ultimate disposition of the case. I therefore concur in the result.
I. First, Why Are We Reaching This Question?
As a preliminary matter, it is necessary to examine why the Court even reaches the issue it does today-namely, whether Section 38.04(a) also requires proof of knowledge that the arrest was lawful-when that issue seems to have no impact on the court of appeals' ultimate disposition of the case. The Court itself seems never to explain.
The court of appeals reversed Appellant's conviction and remanded the case for new trial. The Court today, in addressing Appellant's petition for discretionary review, affirms that disposition. Majority Opinion at 10-11. But the basis for the court of appeals' reversal had nothing to do with the issue that the Court actually addresses: whether Section 38.04(a) of the Texas Penal Code requires the State to prove that the accused knew (i.e., was aware) that the peace officer's attempt to arrest him was lawful. Tex. Penal Code §§ 38.04(a), 6.03(b). Instead, the court of appeals reversed Appellant's conviction based upon the fact that the jury charge failed to instruct the jury that it must find that Appellant knew (i.e., was aware) that the peace officer was attempting to arrest him at the time he fled. Nicholson v. State, 594 S.W.3d 480, 482 (Tex. App.-Waco 2019). In fact, the State conceded this error on appeal. Id. But if the jury charge was fatally deficient in the respect addressed by the court of appeals, then the conviction must be reversed regardless of whether Appellant must also have been aware that the arrest was unlawful. So why does the Court find it necessary to address the latter issue in an Appellant's petition for discretionary review when the Appellant prevailed in the court of appeals?
The reason that the question-whether Section 38.04(a) also requires proof of knowledge that the arrest was lawful-is relevant is that Appellant also sought a greater form of relief than just a retrial due to jury charge error. He also contended that the evidence was legally insufficient to prove that he was aware that the peace officer's attempt to arrest him was lawful. And, even when a court of appeals finds trial error in a case-such as jury charge error-it is still obligated to address a legal sufficiency argument, since a successful claim of legal insufficiency of the evidence would result in a greater form of relief-an acquittal. Benavidez v. State, 323 S.W.3d 179, 182 (Tex. Crim. App. 2010).
The court of appeals resolved the legal sufficiency issue, however, without ever even authoritatively construing the knowledge-of-lawfulness aspect of the statute.Instead, it simply decided that the evidence was legally sufficient to prove Appellant's knowledge of the lawfulness, based only on an assumption that such knowledge was a necessary element of the State's case. Id. at 488. It is this sufficiency-of-the-evidence holding (based only on an assumption of the statute's requirements) that Appellant challenges now, in this Court-in his second ground for discretionary review, which we granted. I, too, would resolve the case on that same basis, finding the evidence to be legally sufficient to sustain Appellant's conviction.
See Nicholson, 594 S.W.3d at 482 ("[W]e need not address [Appellant's] third issue pertaining to his knowledge of the lawfulness of his arrest[.]").
This Court granted discretionary review in this case on the following two grounds:
1. Whether the plain language of the evading-arrest statute requires proof of knowledge that the attempted arrest or detention is lawful.; and
2. Whether it matters in this case; whether the evidence is legally insufficient to show that Nicholson knew he was being lawfully detained.
But Appellant's first ground for review, which we also granted, is the only ground that the Court actually addresses today. There, Appellant asks us to resolve whether the statute indeed requires proof of knowledge that the arrest was lawful. But remember: The court of appeals found it unnecessary to resolve that issue-and it did not do so. Id. at 485-88. Nor should this Court address it today in the first instance!
See Ex parte Sanders, 663 S.W.3d 197, 202 (Tex. Crim. App. 2022) ("It is . . . well-established that '[i]n our discretionary review capacity we review "decisions" of the courts of appeals.'") (quoting Stringer v. State, 241 S.W.3d 52, 59 (Tex. Crim. App. 2007), which in turn quoted Lee v. State, 791 S.W.2d 141, 142 (Tex. Crim. App. 1990)); see also Tex. R. App. P. 66.1 ("The Court of Criminal Appeals may review a court of appeals' decision in a criminal case on its own initiative under Rule 67 or on the petition of a party under Rule 68.") (emphasis added).
Instead, if anything, we should only address whether the court of appeals was correct that the evidence was sufficient to prove such an element even if such proof was required. Only if we were to conclude that that the court of appeals erred in this respect would it become necessary for us to then address whether proof of knowledge of lawfulness is required-and even then, we should only resolve that question after first remanding the cause to the court of appeals to address and resolve the merits of that issue in the first instance, since we ordinarily review only decisions that have already been made by the courts of appeals. E.g., Osorio-Lopez v. State, 663 S.W.3d 750, 757 (Tex. Crim. App. 2022) ("We decline to address these issues in the first instance, however, because this Court reviews only decisions of the courts of appeal unless 'the proper resolution of the remaining issue is clear . . .,' Davison v. State, 405 S.W.3d 682, 691-92 (Tex. Crim. App. 2013), which is not the case here.") (emphasis added).
However, because the Court today unfortunately addresses that issue-and only that issue-I will address it too, if only because I believe the Court resolves it so very incorrectly. And I believe that, in resolving the question the way it does, the Court has misapplied fundamental statutory-construction tenets. Still, and only because I agree with the court of appeals that the evidence was sufficient to prove Appellant's knowledge of the lawfulness of this arrest, I concur in the Court's disposition.
II. The Statute Speaks Plainly
Turning to the merits of the question of whether the statute requires proof of knowledge that the arrest was lawful, I must say that I could not find the statute any plainer. As it currently reads, Section 38.04(a) requires proof that (in relevant part): "A person . . . intentionally flees from a person he knows is a peace officer . . . attempting lawfully to arrest . . . him." Tex. Penal Code § 38.04(a). This provision contains one obvious nature-of-conduct element: flight. That nature-of-conduct element carries its own culpable mental state: "intentionally." But flight alone hardly constitutes criminal conduct all on its own, even when perpetrated intentionally. Thus, the true crux of the statute is only fully revealed in the context of all of its accompanying circumstances, which take up the remainder of the statute: that the flight is "from a person [who] is a peace officer . . . attempting lawfully to arrest . . . him."
When a criminal offense essentially turns, as this one does, on the circumstances under which conduct occurs, it becomes imperative to assign a culpable mental state to at least some of those circumstances- either knowledge, recklessness, or negligence (since "intent" does not typically apply to circumstances that surround conduct). Tex. Penal Code § 6.02(b). Here, the statute itself assigns the mental state of "knowing": it says "he knows"-that is to say, he must be "aware"-"that the circumstances exist." Tex. Penal Code §§ 38.04(a), 6.03(b). The question thus devolves into this: How far down the statutory description of the circumstances surrounding the flight does the assigned culpable mental state of knowledge run?In my view, Section 38.04(a) plainly answers that question: The culpable mental state runs all the way to the end of the sentence.
See McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989) ("[S]ome form of culpability must apply to those 'conduct elements' which make the overall conduct criminal."); State v. Ross, 573 S.W.3d 817, 824 (Tex. Crim. App. 2019) (endorsing and applying McQueen's observation that, "where otherwise innocent conduct becomes criminal because of the circumstances under which it is done, a culpable mental state is required as to those surrounding circumstances" (quoting McQueen, 781 S.W.2d at 603)).
See Robinson v. State, 466 S.W.3d 166 (Tex. Crim. App. 2015) (observing that "the statutory definition of 'intent' [in Section 6.03(a) of the Penal Code] contains no provision for circumstances surrounding conduct, unlike the definitions [in Sections 6.03(b) and (c)] of knowledge and recklessness").
See Robinson, 466 S.W.3d at 171 (referring to "the common issue of deciphering a statute's language to answer the question of how far down the sentence the stated culpable mental state runs"); Ross, 573 S.W.3d at 824 (same).
This is true, not only, as the Court acknowledges, because there is no punctuation to suggest otherwise. Majority Opinion at 6. Apart from, and in addition to, the lack of qualifying punctuation, this is simply the way that modifiers work. It is beyond cavil that the actor must "know" that the person from whom he is fleeing "is a peace officer[.]" Otherwise, "knowing" would have no application at all. The phrase "attempting to arrest[,]" in turn, modifies "peace officer": It is conduct that the peace officer must be undertaking at the time of the flight for an offense to occur. And indeed, the Court has already decided that the accused must also know that the peace officer is "attempting . . . to arrest him" to be culpable under the statute. See Jackson v. State, 718 S.W.2d 724, 726 (Tex. Crim. App. 1986) (finding this to be the only reading of the pre-1993 amendment that is "consistent with the grammatical structure of the statute").
The Court concedes that "[o]ne reading of the statute suggests that the word 'knows' distributes evenly to the entire subordinate remainder of the sentence. Supportive of this reading is the fact that there is no punctuation- commas, parenthesis, or other grammatical tools." Majority Opinion at 6.
The word "lawfully," in turn, appears within, and directly modifies, the phrase "attempting . . . to arrest[.]" In fact, it is found embedded exactly between the words "attempting" and "arrest." There is nothing in the structure of the sentence to suggest that this imbedded sub-modifier of the modifier of "peace officer" should not also be included as an essential part of what the actor must "know" about the circumstances surrounding his conduct before he may be liable for an offense under the statute.
It could not be any plainer that the adverb "lawfully" directly modifies the entire phrase within which it falls: "attempting . . . to arrest." And since "attempting . . . to arrest" plainly describes what the "peace officer" must be doing-so plainly that we said in Jackson that the only permissible construction of the statute was to require knowledge of that circumstance- then the only way to read "lawfully," which categorically modifies "attempting to arrest," is as an inextricable aspect of the circumstances surrounding conduct of which the actor must be "aware" before he may be found guilty under the statute. It is an integral part of the entire adjectival phrase that modifies the noun "peace officer": "attempting lawfully to arrest" the actor.
Are we to believe that the knowledge requirement imposes itself both upon the words "attempting" and "arrest" but not on the word that appears exactly in between them? No, that is what I believe would be absurd! There is no textual ambiguity! Indeed, the Court today does not really suggest otherwise.
The Court nevertheless declares the statute to be ambiguous in this regard, but only because "a number of" courts of appeals have balked at the consequences of this plain reading of the statute. Majority Opinion at 6, 6 n.16 (although identifying only one such court of appeals opinion). Perhaps the Court also has determined-all on its own-that the statute is ambiguous. But the Court fails to demonstrate any ambiguity at all that arises from the text.
For its part, the court of appeals identified a number of other court of appeals opinions that have declined to hold that the State must prove that an accused knew the peace officer's attempt to arrest him was lawful. Nicholson, 594 S.W.3d at 484-85. But, as the court of appeals also observed, each of those opinions relied upon precedents from this Court that preceded the 1993 amendment to Section 38.04, which added the requirement that the peace officer's attempt to arrest be "lawful" as an element of the offense. Id.; Acts 1993, 73rd Leg., ch. 900, § 1.01, p. 3667, eff. Sept. 1, 1994. None of the opinions addressed the fact that the 1993 amendment added the word "lawfully" to Section 38.04(a) as an element of the offense, much less entertained an argument whether the plain language of the provision, as so amended, now requires proof that the accused knew the peace officer's attempted arrest was lawful. Id. at 484.
III. Resolving the (Non-Existent) Ambiguity
The Court begins its extratextual analysis, in light of the alleged ambiguity it perceives in the text, with a look at the history of the statute "for further indicators of legislative intent." Majority Opinion at 7. The only aspect of the statute's history that the Court finds significant is the 1993 amendment to Section 38.04. This amendment deleted the former Subsection (b) of the statute, which had made the fact that the attempted arrest was "unlawful" an explicit exception to the offense. As an exception, the fact that the arrest was not unlawful was required, under former Subsection (b), to be pled and proven by the State beyond a reasonable doubt. Tex. Penal Code § 2.02(b). In place of this explicit exception, the Legislature amended Section 38.04(a) to add the word "lawfully" among the elements of the offense itself. Acts 1993, 73rd Leg., ch. 900, § 1.01, p. 3667, eff. Sept. 1, 1994.
Of course, to the extent that a statute's history provides context for construing its text, we can consult it regardless of whether the statutory text is ambiguous. See Ex parte Moon, 667 S.W.3d 796, 803 (Tex. Crim. App. 2023):
The starting point for determining statutory meaning is to examine both the literal text of the statute and its context; and part of the statutory context includes the history of the statute in question. Timmins v. State, 601 S.W.3d 345, 348, 354 & n.50 (Tex. Crim. App. 2020) (citing Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 256 (2012) ("defining 'statutory history' as 'the statutes repealed or amended by the statute under consideration' and explaining that statutory history 'form[s] part of the context of [a] statute'")).In any event, as I have said before, we should never be consulting extratextual content for evidence of untethered legislative intent; we should simply be striving to find the most accurate construction of the text itself. See Ex parte Kibler, 664 S. W3d 220, 233-34 (Tex Crim App 2022) (Yeary, J, concurring) ("We should not be seeking to effectuate anyone's intent or purpose unless that simply means construing and giving meaning to the words that are the literal text of the statute in question. * * * We should stop saying that our purpose is to effectuate legislative intent.") (internal quotation marks omitted).
Now the Court says that this amendment was nothing more than a bit of legislative housekeeping; that it was not meant to change the statutory status quo. The Court goes so far as to declare it "probable that the Legislature intended for the term ["lawfully"] to provide the same exception to prosecution as now-repealed-subsection (b)." Majority Opinion at 7 (emphasis added). In fact, it is not remotely possible, not to mention "probable," that by deleting the express exception in former Section 38.04(b), the Legislature effectuated "only a stylistic or nonsubstantive change." Id. No, quite the contrary.
Section 2.02(a) of the Penal Code provides: "An exception to an offense in this code is so labeled by the phrase: 'It is an exception to the application of . . . .'" Tex. Penal Code § 2.02(a). Given this plain language, it cannot reasonably be said that by removing the explicit language meant to delineate an exception under Section 38.04, the manifest legislative purpose was somehow to preserve that same exception. This anomaly is all the more glaring considering what this Court has observed regarding the dictates of Section 2.02(a).
In Baumgart v. State, 512 S.W.3d 335 (Tex. Crim. App. 2017), the Court said the following in discussing the requirement of the use of the phrase, "It is an exception to the application of . . .":
[T]here are times when the legislature has mandated strict compliance with a statutory provision. This is one of those times. In saying that an exception is "labeled" with a particular phrase, and in placing that particular phrase in quotation marks, the legislature has decreed that an exception exists only when that exact phrase is used. Even the ellipsis within the quoted phrase contributes to the idea that, though the content of exceptions may vary, they are always introduced with the same phrase.Id. at 344 (emphasis added). In view of this observation, it cannot reasonably be thought that by deleting "that exact phrase" from Section 38.04 altogether, the Legislature can be said to have nevertheless maintained the exception within the statute.
Instead, the Legislature, explicitly, made it an element of the offense that the peace officer's attempt to arrest the actor must be a "lawful" one. That is no mere "stylistic" or "non-substantive" change. The only remaining question is whether the statute, as substantively amended, also requires the State to prove that the actor is aware that the attempted arrest is lawful. For the reasons already developed ante, I believe that Section 38.04(a) of the statute-as it currently reads- plainly does. And to the extent that the 1993 amendment eliminated the unlawfulness exception from the statute, it does not affect that conclusion-at all. The Court errs to think otherwise.
IV. The Statute's Plain Meaning is Not Absurd
The Court also declares that to adopt what I take to be the plain meaning "leads to absurd results." Majority Opinion at 8. The Court says the question of the lawfulness of the arrest is "more appropriately handled by a trial court[.]" Id. at 9. Better to continue to treat the issue of lawfulness as an exception, notwithstanding the 1993 amendment, the Court apparently believes. Id. But there are several problems with this approach.
First and foremost, it is a distortion of the "absurdity" exception to the primacy of plain meaning in statutory construction. That the Court can think of an interpretation of the statute that would be more "appropriate" does not grant the Court leave to ignore plain meaning. "The oddity or anomaly of certain consequences may be a perfectly valid reason for choosing one textually permissible interpretation over another," the late Justice Scalia and Professor Garner have observed, but in the face of statutory text the consequences of which are plain, "it is no basis for disregarding or changing the text." Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 237 (2012). Applying the absurdity exception to distort plain meaning, as the Court does today, runs counter to the principle that "[t]he doctrine does not include substantive errors arising from a drafter's failure to appreciate the effect of certain provisions." Id. at 238. Otherwise, the absurdity exception lends itself to "the charge that it is an application not of textualism but of purposivism-seeking to give the text not the meaning that it objectively conveys but the meaning that was in the mind of the drafter." Id.
I have elsewhere registered my profound disapproval of this "effectuate-the-legislative-intent" brand of statutory construction. Ex parte Kibler, 664 S. W3d 220, 233-34 (Tex Crim App 2022) (Yeary, J, concurring). Instead, I agree with the assertion that the absurdity exception to the rule that plain meaning should prevail should never be relied upon "to revise purposeful dispositions that, in light of other provisions of the applicable code, make little if any sense." Scalia & Garner, at 239. But that is what the Court does today.
In any event, the Court today also greatly exaggerates the anomaly of forcing the State to prove that the accused was aware of the lawfulness of the peace officer's attempt to arrest him. Under the former exception embodied in Section 38.04(b) prior to the 1993 amendment, the State was already required to negate, both in pleading and in proof, "that the attempted arrest is unlawful[.]" See former Tex. Penal Code § 38.04(b) prior to amendment by Acts 1993, 73rd Leg., ch. 900, § 1.01, p. 3667, eff. Sept. 1, 1994; Tex. Penal Code § 2.02(b). Proof in accordance with this former requirement would no doubt often involve the development of the circumstances of the arrest itself. Those circumstances will at least more often than not, I believe, serve just as well to establish the answer to whether the accused was aware that the peace officer's attempt to arrest him was patently lawful. Indeed, the facts of this case provide a ready example.
The Court at one point says that "whether an arrest or detention is lawful or unlawful has resulted in casebooks of technical and fact-intensive jurisprudence." Majority Opinion at 9. In at least one other context of which I am aware, however, this Court has not thought it absurd to require the State even to show that a defendant knew that his own conduct facilitated criminality. See Delay v. State, 465 S.W.3d 232, 246-47 (Tex. Crim. App. 2014) ("We think the Legislature must surely have intended that, to commit or conspire to commit money laundering, the actor must be aware of the fact that the transaction involves the proceeds of criminal activity. Otherwise, the statute would attach a mens rea to nothing more than conduct-conducting, supervising, or facilitating a transaction-that is not intrinsically blameworthy."). Surely it is the case that whether conduct necessarily includes criminality has also "resulted in casebooks of technical and fact intensive jurisprudence." So, I do not understand why the Court finds it absurd today, in this circumstance, that the statute should plainly require the State to show that a defendant knew that an officer's attempt to arrest him was lawful.
Section 2.02(b) provides: "The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception."
V. The Evidence is Legally Sufficient to Prove Knowledge
By the time the police officer in this case attempted to arrest Appellant, he (Appellant) had committed several offenses within the officer's presence, including littering and failure to present a valid driver's license upon request. Nicholson, 594 S.W.3d at 487. Moreover, Appellant had "active felony warrants" out for his arrest. Id. Even before he attempted to flee the scene, Appellant's conduct showed a will to resist the officer's efforts to question him and detain him at the scene until backup units could arrive. Id. at 487-88. From these facts a jury might rationally-indeed, even readily-have inferred not just that the attempted arrest was lawful, but that Appellant was aware that he was subject to lawful arrest. I agree with the court of appeals' conclusion that the evidence was legally sufficient to establish this fact to a level of confidence beyond a reasonable doubt.
Chief Justice Gray filed a dissenting opinion in which he argued that Section 38.04(a) does indeed require proof that Appellant was aware that the officer's attempt to arrest him was lawful. Nicholson, 594 S.W.3d at 492. But he believed the evidence was insufficient to prove this element of the offense, and he would have acquitted Appellant on that basis. Id. Interestingly, he neither explained in what way he thought the evidence was lacking in that regard, nor did he even attempt to explicitly refute the majority's contrary conclusion.
That being the case, then, of course it does not matter whether Section 38.04(a) requires proof of that fact; Appellant was not entitled to an acquittal even if it does. And the court of appeals did not err to decline to ultimately resolve that question, since it could finally dispose of the legal sufficiency issue without doing so. On this basis, I would reject Appellant's second ground for review, and I would accordingly dismiss Appellant's first ground for review as moot.
VI. Conclusion
The Court ultimately disposes of the case today by affirming the court of appeals' uncontested reversal based on jury charge error- namely, the failure of the charge to require the jury to find Appellant was aware that the officer was attempting to arrest him at the time of the offense. Majority Opinion at 11. With this much, I agree. But the Court then remands the case to the trial court for a new trial based upon this manifest trial error that the Court never even addresses on the merits in its opinion.
Of course, this Court, at least in its capacity as a discretionary review court, should not purport to remand the case for a new trial. By affirming the judgment of the court of appeals, we leave standing that court's disposition, which is where the order to remand occurred. We need not and should not order the remand ourselves.
It is also a mystery to me exactly why the Court even takes up the question of whether the trial court's charge to the jury should also have instructed the jury that it must find Appellant was aware that the attempted arrest was also lawful as a predicate to conviction, unless the Court simply desires to inform the lower court of its views on that issue. The court of appeals did not find it necessary to resolve that issue. And its failure to do so cannot have been an error so long as it was correct to hold that the evidence was legally sufficient, in any event, to prove that fact-an issue the Court today never even acknowledges, much less addresses.
But this is anomalous since Texas courts are not empowered to give advisory opinions. Petetan v. State, 622 S.W.3d 321, 334 (Tex. Crim. App. 2021) ("Texas courts are not empowered to give advisory opinions").
In my view, it is appropriate for this Court to affirm the judgment of the court of appeals remanding for trial error. I believe that is the case because I agree with the court of appeals that the evidence would prove knowledge of the lawfulness of the attempted arrest, even assuming (without deciding) that proof of that fact is necessary under a plain reading of Section 38.04(a). Acquittal is not called for, but reversal for trial error, which the court of appeals has already done, is. I therefore concur in the result the Court announces today. But I cannot join its opinion.