Jones v. State

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the offense of resisting arrest. After a jury finding of guilty, appellant was assessed a punishment of 180 days in the county jail. Appellant asserts that the information under which he was charged was fundamentally defective. We agree and reverse.

The offense of resisting arrest is proscribed by V.T.C.A., Penal Code, Section 38.03, which provides that:

“A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest or a search of the actor or another by using force against the peace officer or another.”

Divested of its formal parts, the information in the instant case alleged that appellant

“did unlawfully then and there intentionally obstruct and prevent the arrest of Johnny Jones by use of force against J. M. Smith, who (sic) the said defendant knew to be a peace officer, by striking the said J. M. Smith.”

Appellant’s contention that this information is defective in that it does not allege that Officer Smith “was effecting the arrest of the appellant at the time the appellant allegedly struck the officer” has merit.

This information is markedly similar to that in Guevara v. State, 585 S.W.2d 744 (Tex.Cr.App.1979) and is similarly defective because it does not allege that appellant obstructed or prevented a person whom he knew to be a police officer from making an arrest.

The judgment is reversed and the cause is remanded with directions to dismiss the information.