TEXAS Penal Code §38.04 Evading Arrest or Detention, a Discussion on Challenging Constitutionality of a Statute.
I have a Motion here on my legal blog that was used in ANOTHER individual’s felony evasion charge case that I helped him get dismissed with prejudice. The Motion and signed order dismissing the case is posted right in the blog article (with the knowledge and consent of the individual who was being prosecuted).
There are several paragraphs in that motion that deal with the evasion allegation being made in that case, which you would need to tailor to fit the specific facts of YOUR specific “evading” case in order to apply them, if they DO apply.
That said, a specific issue that I didn’t think to argue in that case (because it only just dawned on me last week when I was re-reading the statute) is that the offense of “Evading Arrest or Detention” as codified in PENAL CODE, §38.04(b)(1)(B) (no previous conviction) or §§38.04(b)(2/3) (prior conviction/death of another) COULD and SHOULD be directly challenged as being unconstitutional, because, as a whole, it is overly vague, ambiguous and overbroad. How so? Well, the statute:
- does NOT DEFINE or make reference to a specifically assigned meaning for “evading/evasion” in order to either prove or disprove the element with facts or evidence;
- does NOT provide in any way whatsoever ANY specific statutory criteria for the element of evading regarding what facts, evidence, and/or actions, constitute the act of “evading/evasion,”;
- does NOT, absent a specific definition, provide an individual with properly sufficient legal notice of what behavior or actions constitutes the criminal act of “evading/evasion,” and, therefore, it is an irreparable due process violation of the highest order; and;
- it allows both the officer AND the prosecutor to determine, decide and rely entirely upon his/her own personal presumptions, conclusions, opinions and discretion about what legally constitutes “evading/evasion” in order to charge and prosecute the alleged offense against any individual merely on the entirely subjective basis that the individual didn’t immediately come to a complete stop and surrender within some subjectively arbitrary amount of time or distance, or a particular place, that the OFFICER AND PROSECUTOR ALONE gets to decide is appropriate.
Now try reading the online version of the statute and see if you can reasonably come to any other possible conclusion yourself based upon the facts and evidence of how the statute is ACTUALLY written:
https://statutes.capitol.texas.gov/Docs/PE/htm/PE.38.htm#38.04
Also, you can easily verify that no such definition exists in Texas law if you go to the “Search” function at the top of this page;
https://statutes.capitol.texas.gov
You can type in (WITH the double quotes) either of these phrases, “evading means” or “evading includes”, and you will see that you get NOTHING in return for either search. That is demonstrable proof that the Texas Legislature does NOT define the term “evading” ANYWHERE in any code containing Texas law.
THAT is precisely what an absolutely unconstitutionally vague, ambiguous, and overbroad statute most obviously reads like. In this case, it leaves the entire primary element of the statutory offense completely and subjectively open to definitions and determinations created and maintained solely by the charging officer or the prosecutor as to what constitutes “evading” as an element of the offense, and THAT is a direct due process violation.
When it comes to the statute, if you find yourself being charged under §38.04 Penal Code, it is imperative that you LEARN IT, KNOW IT, and APPLY THIS ARGUMENT. If you do it correctly, you SHOULD get it thrown out. Most likely ON APPEAL because the lower level trial courts WILL NOT usually even attempt to rule in the favor of an accused individual that a penal statute is even remotely unconstitutional, no matter how blatantly obvious it might actually be so. THAT is why it will almost certainly have to be done on APPEAL, so make damn sure you make the argument correctly and thoroughly IN WRITING via MOTIONS and JUDICIAL NOTICES so that there is a proper record for appeal.
For that reason, you MUST also file a Motion DEMANDING that there be a court reporter present and recording at every single proceeding conducted in your case so you have a complete record for appeal.
I wish you the best in being successful, and PLEASE, if you ARE successful, provide me with some credit where credit is due by allowing me to get an email from you that says how I helped you and what the case was about, AND, a copy of the SIGNED court order showing how the case was settled in your favor, however that might be, so I can post it on my legal blog and share it for others to see and learn from so they are encouraged to stand up for themselves against such unconstitutional laws by learning how to fight back.
Also, PLEASE, state clearly in the email you provided the order in that you are giving me full consent to post the order AS IS (which I don’t really need since it IS a part of the 100% public court record, but I am polite enough to ask). Okay? Thanks in advance.
Tao of Law 
I am being charged with evading arrest motor vehicle in Texas, and after numerous attempts in obtaining discovery and failing as sui juris litigant, I elected to not show up for a court appearance because I cannot be heard for fear of perjuring myself without discovery. Another reason why, is because all proceedings, the indictment, the summons , everything was in the nom de guerre, or legal fiction, all caps name. I am not a legal fiction, and the legal fiction is not me, so how can they issue a warrant without admitting this? This is exactly what they did too. Also, within the penal code itself, it states
“(d) A person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other law.”
Now, this translates to mean that there must be a prior to offense for this offense to be prosecutable, or both. It does not allow for evading arrest to be prosecutable alone. There must an additional prosecutable offense to make evading stick. If there is not another offense, there is not an offense of evading. For instance, just because there is someone with red and blue lights on behind me, does not mean that I know he intends to arrest or detain me unless I just committed another offense and know that he saw me commit that offense. Anything else is up for debate and outside the beyond a reasonable doubt requirement for the prosecution to convict. Am I incorrect in this translation? Or did I just dismiss my case with prejudice? Further, the court should know this prior to issuing a warrant for my arrest, so wouldnt this qualify for a change of venue?
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…. And, crickets…. Thanks.
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