dissenting.
Because I do not believe there has been a sufficient showing that the appellant violated all of the elements of V.T.C.A. Penal Code, Sec. 38.04, I respectfully dissent.
My reading of the statute leads me to believe that for the prosecution to be successful in prosecuting someone, such as the appellant in this cause, for violating the statute, it is incumbent upon the prosecution to establish and prove the element that when a peace officer is attempting to arrest a defendant, the defendant must have known that the police officer was attempting to arrest him. In Hazkell v. State, 616 S.W.2d 204 (Tex.Cr.App.1981), Odom, J., in his dissenting opinion, pointed out: “From the plain language of the statute, it is essential that the defendant knows the peace officer is attempting to arrest him.”
The majority of this panel uses Hazkell as authority to dispose of appellant’s contention that the evidence is insufficient to sustain his conviction. However, my reading of Hazkell does not reflect that the Court’s panel in that cause was concerned with whether or not the evidence was sufficient to sustain the defendant’s conviction, but was only concerned with whether or not the charging instrument stated an offense.
In this cause, when the appellant was told by the police officer to stop, he did just that—he stopped, and surrendered to the arresting officer without struggle or difficulty.
The majority of the panel in this cause places great emphasis upon the use by the police officers of spotlights. However, apparently overlooked by the majority is the testimony of one of the officers, Chaney, who testified during the trial as follows:
Q: Within your observation is there any time when you have been looking at your police car at night when you can’t tell it’s a police car?
A: Yes, sir.
*698Q: When is that?
A: When the spotlight is directly in your eyes.
Q: Is that the only time when you have personally been able to observe—I mean every other time except when it is shining in your eyes you have been personally able to observe that it was a police vehicle?
A: Yes, sir.
Martin, the other officer involved in this cause, also testified as follows: “Chaney, I believe, adjusted his spotlight more so that the direct beam would hit the person [the appellant]. At that point the suspect [the appellant] jumped up and ran back to the west towards the back side of the house.”
My reading of the transcription of the statement of facts does not reflect a showing that when the spotlight “hit” the appellant that he was not then looking directly in the beam of the light that was then shining on him, prior to when he jumped up and fled. Thus, I find that the emphasis by the majority on the use by the police officers of spotlights is virtually meaningless. Furthermore, it appears to me that if a spotlight is sufficient to blind a person from seeing a marked police vehicle, then it stands to reason that it could also prevent a person from identifying uniformed persons as police officers.
I respectfully dissent.