TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    Your opinion? Hindering...?
Go
New
Find
Notify
Tools
Reply
  
Your opinion? Hindering...? Login/Join 
Member
posted
Under PC 38.05 it states that you must be hindering the arrest, etc. of another "for an offense." The caselaw talks about what constitutes "an offense" since it is not defined. It appears that the courts are a little divided down a very narrow line. I have a set of facts that fit right in the middle.

Caselaw says, a warrant for a probation violation is NOT an offense but that a warrant for a parole violation is (the distinction by the court, although they admit their desicion may conflict with the probation case, is that a warrant for a parole violation is a revocation of the parolee's administrative release--"when a parolee is arrested for a parole violation, he is apprehended for the same offense for which he had previously been convicted and imprioned.") Additionally, I found a case that considered a warrant for arrest an offense where the person failed to show up for the sentencing after the person already pled.

My situation is a arrest warrant for a probation violation where the person received a defrd adjudication. To me, this is more similar to the latter two senarios... what is your opinion. Can I consider this "an offense" under the statute?

Further, even if it were a straight probation violation warrant, doesn't it seem wrong that the hindering statute wouldn't apply to someone preventing the arrest of another for a warrant based on this? Why is hindering the arrest on a revocation warrant any different?

FYI, these are all just court of appeals cases, I can't find any cases from the court of criminal appeals.

FYI on cases:
Probation violation not offense: 800 sw2d 229
Parole Violation: 76 sw3d 659
Sentencing: NO. 07-06-0185-CR
 
Posts: 61 | Location: Austin, Texas, USA | Registered: January 18, 2006Reply With QuoteReport This Post
Member
posted Hide Post
I read 38.05 as making it an offense to hinder an arrest where there is any type of warrant, whether for a probation revocation or something else. That portion of 38.05 was added recently primarily because of the interpretation that a probation violation was not an "offense."
 
Posts: 171 | Location: Belton, Texas, USA | Registered: April 26, 2001Reply With QuoteReport This Post
Administrator
Member
posted Hide Post
Rick is too humble to say it, but he got the additional language added to that section back in 2005 by means of HB 2104 (79th Reg. Session). By adding the phrase "or with intent to hinder the arrest of another under the authority of a warrant or capias," that bill closed the loopholes that used to be present in PC 38.05.

KPM, I'm guessing the caselaw does not reflect this recent change. Maybe you can make some new caselaw to clear it up? Wink
 
Posts: 2409 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
Member
posted Hide Post
It would also seem to me that this new language covers capiases (sp.?) that are issued in civil cases, as well.
 
Posts: 234 | Location: Texas | Registered: October 12, 2006Reply With QuoteReport This Post
Member
posted Hide Post
That is how I read that new languange, but I wasn't sure when it was added into the statute (my offense is before Sept. 1 2007)--also I found it odd that the parole violation court didn't just use that language to justify the distinction...
 
Posts: 61 | Location: Austin, Texas, USA | Registered: January 18, 2006Reply With QuoteReport This Post
Member
posted Hide Post
A related question - Does 38.05 (a) require that an actual warrant be in existence at the time of the hindering? Hypothetical - A is told by the police that they are in the process of obtaining an arrest warrant for B and that its execution is imminent. A warns B and takes action to conceal B and to hinder B's imminent apprehension. The next day an arrest warrant is issued for B. Has an offense been committed?
 
Posts: 57 | Location: McKinney, Texas, USA | Registered: February 19, 2001Reply With QuoteReport This Post
Member
posted Hide Post
Was the hypothetical future warrant for an offense?

38.05. HINDERING APPREHENSION OR PROSECUTION.  
(a) A person commits an offense if, with intent to 
    hinder the arrest, prosecution, conviction, or 
    punishment of another for an offense or, with 
    intent to hinder the arrest, detention, adjudication, 
    or disposition of a child for engaging in delinquent 
    conduct that violates a penal law of the state, 
    or with intent to hinder the arrest of another under 
    the authority of a warrant or capias, he:
    (1) harbors or conceals the other;
    (2) provides or aids in providing the other with 
        any means of avoiding arrest or effecting escape; 
        or
    (3) warns the other of impending discovery or 
        apprehension. 
 
Posts: 689 | Registered: March 01, 2004Reply With QuoteReport This Post
Member
posted Hide Post
Yes
 
Posts: 57 | Location: McKinney, Texas, USA | Registered: February 19, 2001Reply With QuoteReport This Post
Member
posted Hide Post
Well then couldn't you just focus the first phrase without regard to the non-existant warrant:

(a) A person commits an offense if, with intent to
hinder the arrest, prosecution, conviction, or
punishment of another for an offense ...
 
Posts: 689 | Registered: March 01, 2004Reply With QuoteReport This Post
Administrator
Member
posted Hide Post
That was going to be my suggestion, too -- go with option #1 instead of option #3.
 
Posts: 2409 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
Member
posted Hide Post
Thanks.
 
Posts: 57 | Location: McKinney, Texas, USA | Registered: February 19, 2001Reply With QuoteReport This Post
Member
posted Hide Post
FOLLOW-UP QUESTION:

the warrant and capias expansion... that will only apply to misdemeanors, right? If you look at 38.05(d) which defines what constitutes charging someone with a felony it doesn't include the warrant or capias language... it only says "under arrest for, charged with, or convicted of a felony"-- so if there is a probation warrant as the basis--is there no way to make this a felony?
 
Posts: 61 | Location: Austin, Texas, USA | Registered: January 18, 2006Reply With QuoteReport This Post
  Powered by Social Strata  
 

TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    Your opinion? Hindering...?

© TDCAA, 2001. All Rights Reserved.