NICHOLSON, HARRY DONALD JR. v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0963-19
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HARRY DONALD NICHOLSON, JR.,
Appellant

v.

THE STATE OF TEXAS

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On Appellant’s Petition for Discretionary Review
From the Tenth Court of Appeals
Navarro County
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YEARY, J., filed a concurring opinion.

A person commits an offense if he intentionally flees from
a person he knows is a peace officer . . . attempting
lawfully to arrest . . . him.

TEX. PENAL CODE § 38.04(a) (emphasis added). The Court says that this
NICHOLSON – 2

statute does not require the accused to know that the officer’s attempt
to arrest him is lawful. I strongly disagree.
The Court readily acknowledges the primacy of plain language in
the process of construing statutes. See Majority Opinion at 4 (“If the
plain language is clear and unambiguous, our analysis ends because the
Legislature must be understood to mean what it has expressed, and it
is not for the courts to add or subtract from such a statute.”) (quoting
Nguyen v. State, 359 S.W.3d 636, 642 (Tex. Crim. App. 2012)). But then,
even though the language of the statute at issue in this case is both clear
and unambiguous, the Court declares it to be both ambiguous and even
absurd so that it may then, under this Court’s precedents, declare itself
to be at liberty to announce a construction of the statute that it prefers. 1
In the process, the Court makes several other major mistakes.
First, it overlooks the plain import of a 1993 amendment to the
applicable statute, declaring that the amendment actually preserves an
“exception” to the offense. But the Legislature could not have more

1 This is the very opposite of a textualist approach to statutory
interpretation. The Court says: “Thus, given that the added term, ‘lawfully,’
deals with the same subject matter of now-repealed Subsection (b), it is more
probable that the Legislature intended for the term to provide the same
exception to prosecution as now-repealed-Subsection (b).” Majority Opinion at
7 (emphasis added). It also says: “Construing ‘lawfully’ to be the equivalent of
now-repealed Subsection (b) is also more consistent with the statute’s
purpose—which we doubt has changed as a result of the 1993 amendment.” Id.
at 9 (emphasis added). These statements make clear that the Court’s approach
is not to apply the clear and unambiguous meaning of the statutory text.
Instead, it seeks to give effect to what it believes “is more probable that the
Legislature intended” to say. It does so because it “doubts” that the “purpose”
of the law was what the Legislature actually said. It thus reveals itself to be
more concerned with what it thinks the Legislature was hoping to achieve than
what the Legislature actually did achieve.
NICHOLSON – 3

clearly eliminated the former exception in favor of adding to the culpable
mental state in the definition of the offense itself. The Court then
declares the plain meaning of the current iteration of the statute to lead
to a result that is absurd merely because that result seems unreflective
of what it perceives to be the legislative objective—which objective the
Court gleans from sources wholly apart from the language of the statute
itself. I cannot follow this approach.
For the reasons I explain in the ensuing pages, however, I
nevertheless agree with the Court’s ultimate disposition of the case. I
therefore concur in the result.
I. FIRST, WHY ARE WE REACHING THIS QUESTION?
As a preliminary matter, it is necessary to examine why the Court
even reaches the issue it does today—namely, whether Section 38.04(a)
also requires proof of knowledge that the arrest was lawful—when that
issue seems to have no impact on the court of appeals’ ultimate
disposition of the case. The Court itself seems never to explain.
The court of appeals reversed Appellant’s conviction and
remanded the case for new trial. The Court today, in addressing
Appellant’s petition for discretionary review, affirms that disposition.
Majority Opinion at 10–11. But the basis for the court of appeals’
reversal had nothing to do with the issue that the Court actually
addresses: whether Section 38.04(a) of the Texas Penal Code requires
the State to prove that the accused knew (i.e., was aware) that the peace
officer’s attempt to arrest him was lawful. TEX. PENAL CODE §§ 38.04(a),
6.03(b). Instead, the court of appeals reversed Appellant’s conviction
based upon the fact that the jury charge failed to instruct the jury that
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it must find that Appellant knew (i.e., was aware) that the peace officer
was attempting to arrest him at the time he fled. Nicholson v. State, 594
S.W.3d 480, 482 (Tex. App.—Waco 2019). In fact, the State conceded this
error on appeal. Id. But if the jury charge was fatally deficient in the
respect addressed by the court of appeals, then the conviction must be
reversed regardless of whether Appellant must also have been aware
that the arrest was unlawful. So why does the Court find it necessary to
address the latter issue in an Appellant’s petition for discretionary
review when the Appellant prevailed in the court of appeals?
The reason that the question—whether Section 38.04(a) also
requires proof of knowledge that the arrest was lawful—is relevant is
that Appellant also sought a greater form of relief than just a retrial due
to jury charge error. He also contended that the evidence was legally
insufficient to prove that he was aware that the peace officer’s attempt
to arrest him was lawful. And, even when a court of appeals finds trial
error in a case—such as jury charge error—it is still obligated to address
a legal sufficiency argument, since a successful claim of legal
insufficiency of the evidence would result in a greater form of relief—an
acquittal. Benavidez v. State, 323 S.W.3d 179, 182 (Tex. Crim. App.
2010).
The court of appeals resolved the legal sufficiency issue, however,
without ever even authoritatively construing the knowledge-of-
lawfulness aspect of the statute. 2 Instead, it simply decided that the
evidence was legally sufficient to prove Appellant’s knowledge of the

2 See Nicholson, 594 S.W.3d at 482 (“[W]e need not address [Appellant’s]

third issue pertaining to his knowledge of the lawfulness of his arrest[.]”).
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lawfulness, based only on an assumption that such knowledge was a
necessary element of the State’s case. Id. at 488. It is this sufficiency-of-
the-evidence holding (based only on an assumption of the statute’s
requirements) that Appellant challenges now, in this Court—in his
second ground for discretionary review, which we granted. 3 I, too, would
resolve the case on that same basis, finding the evidence to be legally
sufficient to sustain Appellant’s conviction.
But Appellant’s first ground for review, which we also granted, is
the only ground that the Court actually addresses today. There,
Appellant asks us to resolve whether the statute indeed requires proof
of knowledge that the arrest was lawful. But remember: The court of
appeals found it unnecessary to resolve that issue—and it did not do so.
Id. at 485−88. Nor should this Court address it today in the first
instance! 4

3 This Court granted discretionary review in this case on the following

two grounds:

1. Whether the plain language of the evading-arrest statute
requires proof of knowledge that the attempted arrest or
detention is lawful.; and

2. Whether it matters in this case; whether the evidence is
legally insufficient to show that Nicholson knew he was
being lawfully detained.

4 See Ex parte Sanders, 663 S.W.3d 197, 202 (Tex. Crim. App. 2022) (“It

is . . . well-established that ‘[i]n our discretionary review capacity we review
“decisions” of the courts of appeals.’”) (quoting Stringer v. State, 241 S.W.3d 52,
59 (Tex. Crim. App. 2007), which in turn quoted Lee v. State, 791 S.W.2d 141,
142 (Tex. Crim. App. 1990)); see also TEX. R. APP. P. 66.1 (“The Court of
Criminal Appeals may review a court of appeals’ decision in a criminal case on
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Instead, if anything, we should only address whether the court of
appeals was correct that the evidence was sufficient to prove such an
element even if such proof was required. Only if we were to conclude
that that the court of appeals erred in this respect would it become
necessary for us to then address whether proof of knowledge of
lawfulness is required—and even then, we should only resolve that
question after first remanding the cause to the court of appeals to
address and resolve the merits of that issue in the first instance, since
we ordinarily review only decisions that have already been made by the
courts of appeals. E.g., Osorio-Lopez v. State, 663 S.W.3d 750, 757 (Tex.
Crim. App. 2022) (“We decline to address these issues in the first
instance, however, because this Court reviews only decisions of the
courts of appeal unless ‘the proper resolution of the remaining issue is
clear . . .,’ Davison v. State, 405 S.W.3d 682, 691–92 (Tex. Crim. App.
2013), which is not the case here.”) (emphasis added).
However, because the Court today unfortunately addresses that
issue—and only that issue—I will address it too, if only because I believe
the Court resolves it so very incorrectly. And I believe that, in resolving
the question the way it does, the Court has misapplied fundamental
statutory-construction tenets. Still, and only because I agree with the
court of appeals that the evidence was sufficient to prove Appellant’s
knowledge of the lawfulness of this arrest, I concur in the Court’s
disposition.

its own initiative under Rule 67 or on the petition of a party under Rule 68.”)
(emphasis added).
NICHOLSON – 7

II. THE STATUTE SPEAKS PLAINLY
Turning to the merits of the question of whether the statute
requires proof of knowledge that the arrest was lawful, I must say that
I could not find the statute any plainer. As it currently reads, Section
38.04(a) requires proof that (in relevant part): “A person . . .
intentionally flees from a person he knows is a peace officer . . .
attempting lawfully to arrest . . . him.” TEX. PENAL CODE § 38.04(a). This
provision contains one obvious nature-of-conduct element: flight. That
nature-of-conduct element carries its own culpable mental state:
“intentionally.” But flight alone hardly constitutes criminal conduct all
on its own, even when perpetrated intentionally. Thus, the true crux of
the statute is only fully revealed in the context of all of its accompanying
circumstances, which take up the remainder of the statute: that the
flight is “from a person [who] is a peace officer . . . attempting lawfully
to arrest . . . him.”
When a criminal offense essentially turns, as this one does, on the
circumstances under which conduct occurs, it becomes imperative to
assign a culpable mental state to at least some of those circumstances 5—
either knowledge, recklessness, or negligence (since “intent” does not

5 See McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989)

(“[S]ome form of culpability must apply to those ‘conduct elements’ which make
the overall conduct criminal.”); State v. Ross, 573 S.W.3d 817, 824 (Tex. Crim.
App. 2019) (endorsing and applying McQueen’s observation that, “where
otherwise innocent conduct becomes criminal because of the circumstances
under which it is done, a culpable mental state is required as to those
surrounding circumstances” (quoting McQueen, 781 S.W.2d at 603)).
NICHOLSON – 8

typically apply to circumstances that surround conduct). 6 TEX. PENAL
CODE § 6.02(b). Here, the statute itself assigns the mental state of
“knowing”: it says “he knows”—that is to say, he must be “aware”—“that
the circumstances exist.” TEX. PENAL CODE §§ 38.04(a), 6.03(b). The
question thus devolves into this: How far down the statutory description
of the circumstances surrounding the flight does the assigned culpable
mental state of knowledge run? 7 In my view, Section 38.04(a) plainly
answers that question: The culpable mental state runs all the way to the
end of the sentence.
This is true, not only, as the Court acknowledges, because there
is no punctuation to suggest otherwise. Majority Opinion at 6. 8 Apart
from, and in addition to, the lack of qualifying punctuation, this is
simply the way that modifiers work. It is beyond cavil that the actor
must “know” that the person from whom he is fleeing “is a peace
officer[.]” Otherwise, “knowing” would have no application at all. The
phrase “attempting to arrest[,]” in turn, modifies “peace officer”: It is

6 See Robinson v. State, 466 S.W.3d 166 (Tex. Crim. App. 2015)
(observing that “the statutory definition of ‘intent’ [in Section 6.03(a) of the
Penal Code] contains no provision for circumstances surrounding conduct,
unlike the definitions [in Sections 6.03(b) and (c)] of knowledge and
recklessness”).

7 See Robinson, 466 S.W.3d at 171 (referring to “the common issue of

deciphering a statute’s language to answer the question of how far down the
sentence the stated culpable mental state runs”); Ross, 573 S.W.3d at 824
(same).

8 The Court concedes that “[o]ne reading of the statute suggests that the

word ‘knows’ distributes evenly to the entire subordinate remainder of the
sentence. Supportive of this reading is the fact that there is no punctuation—
commas, parenthesis, or other grammatical tools.” Majority Opinion at 6.
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conduct that the peace officer must be undertaking at the time of the
flight for an offense to occur. And indeed, the Court has already decided
that the accused must also know that the peace officer is “attempting . .
. to arrest him” to be culpable under the statute. See Jackson v. State,
718 S.W.2d 724, 726 (Tex. Crim. App. 1986) (finding this to be the only
reading of the pre-1993 amendment that is “consistent with the
grammatical structure of the statute”).
The word “lawfully,” in turn, appears within, and directly
modifies, the phrase “attempting . . . to arrest[.]” 9 In fact, it is found
embedded exactly between the words “attempting” and “arrest.” There
is nothing in the structure of the sentence to suggest that this imbedded
sub-modifier of the modifier of “peace officer” should not also be included
as an essential part of what the actor must “know” about the
circumstances surrounding his conduct before he may be liable for an
offense under the statute.
Are we to believe that the knowledge requirement imposes itself
both upon the words “attempting” and “arrest” but not on the word that
appears exactly in between them? No, that is what I believe would be
absurd! There is no textual ambiguity! Indeed, the Court today does not

9 It could not be any plainer that the adverb “lawfully” directly modifies

the entire phrase within which it falls: “attempting . . . to arrest.” And since
“attempting . . . to arrest” plainly describes what the “peace officer” must be
doing—so plainly that we said in Jackson that the only permissible
construction of the statute was to require knowledge of that circumstance—
then the only way to read “lawfully,” which categorically modifies “attempting
to arrest,” is as an inextricable aspect of the circumstances surrounding
conduct of which the actor must be “aware” before he may be found guilty under
the statute. It is an integral part of the entire adjectival phrase that modifies
the noun “peace officer”: “attempting lawfully to arrest” the actor.
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really suggest otherwise.
The Court nevertheless declares the statute to be ambiguous in
this regard, but only because “a number of” courts of appeals have
balked at the consequences of this plain reading of the statute. Majority
Opinion at 6, 6 n.16 (although identifying only one such court of appeals
opinion). 10 Perhaps the Court also has determined—all on its own—that
the statute is ambiguous. But the Court fails to demonstrate any
ambiguity at all that arises from the text.
III. RESOLVING THE (NON-EXISTENT) AMBIGUITY
The Court begins its extratextual analysis, in light of the alleged
ambiguity it perceives in the text, with a look at the history of the
statute “for further indicators of legislative intent.” Majority Opinion at
7. 11 The only aspect of the statute’s history that the Court finds

10 For its part, the court of appeals identified a number of other court of

appeals opinions that have declined to hold that the State must prove that an
accused knew the peace officer’s attempt to arrest him was lawful. Nicholson,
594 S.W.3d at 484−85. But, as the court of appeals also observed, each of those
opinions relied upon precedents from this Court that preceded the 1993
amendment to Section 38.04, which added the requirement that the peace
officer’s attempt to arrest be “lawful” as an element of the offense. Id.; Acts
1993, 73rd Leg., ch. 900, § 1.01, p. 3667, eff. Sept. 1, 1994. None of the opinions
addressed the fact that the 1993 amendment added the word “lawfully” to
Section 38.04(a) as an element of the offense, much less entertained an
argument whether the plain language of the provision, as so amended, now
requires proof that the accused knew the peace officer’s attempted arrest was
lawful. Id. at 484.

11 Of course, to the extent that a statute’s history provides context for

construing its text, we can consult it regardless of whether the statutory text
is ambiguous. See Ex parte Moon, 667 S.W.3d 796, 803 (Tex. Crim. App. 2023):

The starting point for determining statutory meaning is to
examine both the literal text of the statute and its context; and
part of the statutory context includes the history of the statute
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significant is the 1993 amendment to Section 38.04. This amendment
deleted the former Subsection (b) of the statute, which had made the fact
that the attempted arrest was “unlawful” an explicit exception to the
offense. As an exception, the fact that the arrest was not unlawful was
required, under former Subsection (b), to be pled and proven by the State
beyond a reasonable doubt. TEX. PENAL CODE § 2.02(b). In place of this
explicit exception, the Legislature amended Section 38.04(a) to add the
word “lawfully” among the elements of the offense itself. Acts 1993, 73rd
Leg., ch. 900, § 1.01, p. 3667, eff. Sept. 1, 1994.
Now the Court says that this amendment was nothing more than
a bit of legislative housekeeping; that it was not meant to change the
statutory status quo. The Court goes so far as to declare it “probable that
the Legislature intended for the term [“lawfully”] to provide the same
exception to prosecution as now-repealed-subsection (b).” Majority
Opinion at 7 (emphasis added). In fact, it is not remotely possible, not to
mention “probable,” that by deleting the express exception in former

in question. Timmins v. State, 601 S.W.3d 345, 348, 354 & n.50
(Tex. Crim. App. 2020) (citing Antonin Scalia & Bryan Garner,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 256 (2012)
(“defining ‘statutory history’ as ‘the statutes repealed or
amended by the statute under consideration’ and explaining
that statutory history ‘form[s] part of the context of [a]
statute’”)).

In any event, as I have said before, we should never be consulting
extratextual content for evidence of untethered legislative intent; we should
simply be striving to find the most accurate construction of the text itself. See
Ex parte Kibler, 664 S.W.3d 220, 233−34 (Tex. Crim. App. 2022) (Yeary, J.,
concurring) (“We should not be seeking to effectuate anyone’s intent or purpose
unless that simply means construing and giving meaning to the words that are
the literal text of the statute in question. * * * We should stop saying that our
purpose is to effectuate legislative intent.”) (internal quotation marks omitted).
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Section 38.04(b), the Legislature effectuated “only a stylistic or non-
substantive change.” Id. No, quite the contrary.
Section 2.02(a) of the Penal Code provides: “An exception to an
offense in this code is so labeled by the phrase: ‘It is an exception to the
application of . . . .’” TEX. PENAL CODE § 2.02(a). Given this plain
language, it cannot reasonably be said that by removing the explicit
language meant to delineate an exception under Section 38.04, the
manifest legislative purpose was somehow to preserve that same
exception. This anomaly is all the more glaring considering what this
Court has observed regarding the dictates of Section 2.02(a).
In Baumgart v. State, 512 S.W.3d 335 (Tex. Crim. App. 2017), the
Court said the following in discussing the requirement of the use of the
phrase, “It is an exception to the application of . . .”:
[T]here are times when the legislature has mandated strict
compliance with a statutory provision. This is one of those
times. In saying that an exception is “labeled” with a
particular phrase, and in placing that particular phrase in
quotation marks, the legislature has decreed that an
exception exists only when that exact phrase is used. Even
the ellipsis within the quoted phrase contributes to the idea
that, though the content of exceptions may vary, they are
always introduced with the same phrase.

Id. at 344 (emphasis added). In view of this observation, it cannot
reasonably be thought that by deleting “that exact phrase” from Section
38.04 altogether, the Legislature can be said to have nevertheless
maintained the exception within the statute.
Instead, the Legislature, explicitly, made it an element of the
offense that the peace officer’s attempt to arrest the actor must be a
“lawful” one. That is no mere “stylistic” or “non-substantive” change. The
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only remaining question is whether the statute, as substantively
amended, also requires the State to prove that the actor is aware that
the attempted arrest is lawful. For the reasons already developed ante,
I believe that Section 38.04(a) of the statute—as it currently reads—
plainly does. And to the extent that the 1993 amendment eliminated the
unlawfulness exception from the statute, it does not affect that
conclusion—at all. The Court errs to think otherwise.
IV. THE STATUTE’S PLAIN MEANING IS NOT ABSURD
The Court also declares that to adopt what I take to be the plain
meaning “leads to absurd results.” Majority Opinion at 8. The Court says
the question of the lawfulness of the arrest is “more appropriately
handled by a trial court[.]” Id. at 9. Better to continue to treat the issue
of lawfulness as an exception, notwithstanding the 1993 amendment,
the Court apparently believes. Id. But there are several problems with
this approach.
First and foremost, it is a distortion of the “absurdity” exception
to the primacy of plain meaning in statutory construction. That the
Court can think of an interpretation of the statute that would be more
“appropriate” does not grant the Court leave to ignore plain meaning.
“The oddity or anomaly of certain consequences may be a perfectly valid
reason for choosing one textually permissible interpretation over
another,” the late Justice Scalia and Professor Garner have observed,
but in the face of statutory text the consequences of which are plain, “it
is no basis for disregarding or changing the text.” Antonin Scalia &
Bryan Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 237
(2012). Applying the absurdity exception to distort plain meaning, as the
NICHOLSON – 14

Court does today, runs counter to the principle that “[t]he doctrine does
not include substantive errors arising from a drafter’s failure to
appreciate the effect of certain provisions.” Id. at 238. Otherwise, the
absurdity exception lends itself to “the charge that it is an application
not of textualism but of purposivism—seeking to give the text not the
meaning that it objectively conveys but the meaning that was in the
mind of the drafter.” Id.
I have elsewhere registered my profound disapproval of this
“effectuate-the-legislative-intent” brand of statutory construction. Ex
parte Kibler, 664 S.W.3d 220, 233−34 (Tex. Crim. App. 2022) (Yeary, J.,
concurring). Instead, I agree with the assertion that the absurdity
exception to the rule that plain meaning should prevail should never be
relied upon “to revise purposeful dispositions that, in light of other
provisions of the applicable code, make little if any sense.” Scalia &
Garner, at 239. But that is what the Court does today.
In any event, the Court today also greatly exaggerates the
anomaly of forcing the State to prove that the accused was aware of the
lawfulness of the peace officer’s attempt to arrest him. 12 Under the

12 The Court at one point says that “whether an arrest or detention is

lawful or unlawful has resulted in casebooks of technical and fact-intensive
jurisprudence.” Majority Opinion at 9. In at least one other context of which I
am aware, however, this Court has not thought it absurd to require the State
even to show that a defendant knew that his own conduct facilitated
criminality. See Delay v. State, 465 S.W.3d 232, 246−47 (Tex. Crim. App. 2014)
(“We think the Legislature must surely have intended that, to commit or
conspire to commit money laundering, the actor must be aware of the fact that
the transaction involves the proceeds of criminal activity. Otherwise, the
statute would attach a mens rea to nothing more than conduct—conducting,
supervising, or facilitating a transaction—that is not intrinsically
blameworthy.”). Surely it is the case that whether conduct necessarily includes
criminality has also “resulted in casebooks of technical and fact intensive
NICHOLSON – 15

former exception embodied in Section 38.04(b) prior to the 1993
amendment, the State was already required to negate, both in pleading
and in proof, “that the attempted arrest is unlawful[.]” See former TEX.
PENAL CODE § 38.04(b) prior to amendment by Acts 1993, 73rd Leg., ch.
900, § 1.01, p. 3667, eff. Sept. 1, 1994; TEX. PENAL CODE § 2.02(b). 13 Proof
in accordance with this former requirement would no doubt often involve
the development of the circumstances of the arrest itself. Those
circumstances will at least more often than not, I believe, serve just as
well to establish the answer to whether the accused was aware that the
peace officer’s attempt to arrest him was patently lawful. Indeed, the
facts of this case provide a ready example.
V. THE EVIDENCE IS LEGALLY SUFFICIENT TO PROVE KNOWLEDGE
By the time the police officer in this case attempted to arrest
Appellant, he (Appellant) had committed several offenses within the
officer’s presence, including littering and failure to present a valid
driver’s license upon request. Nicholson, 594 S.W.3d at 487. Moreover,
Appellant had “active felony warrants” out for his arrest. Id. Even before
he attempted to flee the scene, Appellant’s conduct showed a will to
resist the officer’s efforts to question him and detain him at the scene
until backup units could arrive. Id. at 487–88. From these facts a jury

jurisprudence.” So, I do not understand why the Court finds it absurd today,
in this circumstance, that the statute should plainly require the State to show
that a defendant knew that an officer’s attempt to arrest him was lawful.

13 Section 2.02(b) provides: “The prosecuting attorney must negate the

existence of an exception in the accusation charging commission of the offense
and prove beyond a reasonable doubt that the defendant or defendant’s conduct
does not fall within the exception.”
NICHOLSON – 16

might rationally—indeed, even readily—have inferred not just that the
attempted arrest was lawful, but that Appellant was aware that he was
subject to lawful arrest. I agree with the court of appeals’ conclusion that
the evidence was legally sufficient to establish this fact to a level of
confidence beyond a reasonable doubt. 14
That being the case, then, of course it does not matter whether
Section 38.04(a) requires proof of that fact; Appellant was not entitled
to an acquittal even if it does. And the court of appeals did not err to
decline to ultimately resolve that question, since it could finally dispose
of the legal sufficiency issue without doing so. On this basis, I would
reject Appellant’s second ground for review, and I would accordingly
dismiss Appellant’s first ground for review as moot.
VI. CONCLUSION
The Court ultimately disposes of the case today by affirming the
court of appeals’ uncontested reversal based on jury charge error—
namely, the failure of the charge to require the jury to find Appellant
was aware that the officer was attempting to arrest him at the time of
the offense. Majority Opinion at 11. With this much, I agree. But the
Court then remands the case to the trial court for a new trial based upon
this manifest trial error that the Court never even addresses on the

14 Chief Justice Gray filed a dissenting opinion in which he argued that

Section 38.04(a) does indeed require proof that Appellant was aware that the
officer’s attempt to arrest him was lawful. Nicholson, 594 S.W.3d at 492. But
he believed the evidence was insufficient to prove this element of the offense,
and he would have acquitted Appellant on that basis. Id. Interestingly, he
neither explained in what way he thought the evidence was lacking in that
regard, nor did he even attempt to explicitly refute the majority’s contrary
conclusion.
NICHOLSON – 17

merits in its opinion. 15
It is also a mystery to me exactly why the Court even takes up the
question of whether the trial court’s charge to the jury should also have
instructed the jury that it must find Appellant was aware that the
attempted arrest was also lawful as a predicate to conviction, unless the
Court simply desires to inform the lower court of its views on that
issue. 16 The court of appeals did not find it necessary to resolve that
issue. And its failure to do so cannot have been an error so long as it was
correct to hold that the evidence was legally sufficient, in any event, to
prove that fact—an issue the Court today never even acknowledges,
much less addresses.
In my view, it is appropriate for this Court to affirm the judgment
of the court of appeals remanding for trial error. I believe that is the case
because I agree with the court of appeals that the evidence would prove
knowledge of the lawfulness of the attempted arrest, even assuming
(without deciding) that proof of that fact is necessary under a plain
reading of Section 38.04(a). Acquittal is not called for, but reversal for
trial error, which the court of appeals has already done, is. I therefore
concur in the result the Court announces today. But I cannot join its
opinion.

15 Of course, this Court, at least in its capacity as a discretionary review

court, should not purport to remand the case for a new trial. By affirming the
judgment of the court of appeals, we leave standing that court’s disposition,
which is where the order to remand occurred. We need not and should not order
the remand ourselves.

16 But this is anomalous since Texas courts are not empowered to give

advisory opinions. Petetan v. State, 622 S.W.3d 321, 334 (Tex. Crim. App. 2021)
(“Texas courts are not empowered to give advisory opinions”).
NICHOLSON – 18

FILED: January 17, 2024
PUBLISH