Closing arguments are tomorrow (Wednesday morning) and I'm working on the jury charge right now.
I printed the Resisting Arrest charge off of this website, which includes the paragraph that
"It is no defense to the offense of resisting arrest that the arrest was unlawful".
I know this is the correct law, but does anyone have the authority for this statement? (I'm at home without my Westlaw password.....
This issue has come up during the trial and I'm afraid my judge won't allow me to include it in the jury charge if I don't have some authority to back me up.
Thanks for any help, I really appreciate it!
Straight out of 38.03 (b). What better source than the Legislature itself! See also Mayorga, 901 S.W.2d 943, 945; Barnett, 615 S.W.2d at 223.
Thanks! Did I also mention I was at home without my code book?
I knew one of my intelligent fellow prosecutors would throw me a lifeline (like always).
Cail v. State, 2003 WL 21357288, at *2 (Tex.App.-Houston [1st Dist.] June 12, 2003, no pet.) (not designated for publication) might help. The instruction in that case was:
"During your deliberations in this case, you must not consider whether the detention or arrest of the Defendant, or the entry of the police officers into the residence was lawful."
The appellant complained that "this particular instruction was a misstatement of the law and that it was an improper comment on the weight of the evidence.. . ."
The holding was: " The record in the present case reflects that Officer Desmormeaux was 'acting in his capacity as a peace officer' at the time of the offense. He was on duty, in uniform, and investigating a burglary. Hence, the trial court's instruction was a correct statement of the law, and did not constitute an improper comment on the weight of the evidence."
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