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Charged with Burglary in Fort Worth, Texas?

Are you or someone you know facing a burglary of a habitation or burglary of a building charge in Fort Worth, Arlington, or a surrounding city in Tarrant County? If so, you need an experienced Fort Worth Criminal Lawyer to make sure you do not become a victim of the system. It is critical that you hire an experienced and aggressive criminal attorney in Fort Worth that specializes in criminal defense. As a former prosecutor, I have seen hundreds of these cases and will make sure to build a strong defense on your behalf.

When analyzing a burglary charge in Texas, the first thing you should determine is whether a building or a home or habitation was involved. Why? Texas criminal law designates the severity of the criminal charge based upon the structure allegedly burglarized. Let us examine each crime.

What Is The Sentence For Burglary Of A Habitation In Texas?

Burglary of a Habitation is categorized as a second-degree felony in Texas. A second-degree felony is punishable by a term in prison of not less than two years but not more than twenty years and a fine not to exceed $10,000. If you have been previously convicted of a felony crime and sentenced to a term in prison, you could be facing an enhanced charge of a first-degree felony, punishable by a term in prison of five years to life or 99 years and a fine of up to $10,000.

What Are The Elements Of The Crime Of Burglary of a Habitation?

Burglary of a Habitation is a property crime in Texas that is penalized more seriously than theft. Why? Because it normally involves the intent to commit theft from someone’s residence. As such, many district attorney’s offices take a tough stance on this crime. This makes it critically important to work with a criminal defense attorney with a proven track record of obtaining favorable results for their clients charged with burglary of a habitation. When examining the elements of the crime, we must look to the Texas Penal Code.

Under Texas Penal Code, Section 30.02, the State of Texas must prove beyond a reasonable doubt the following elements:

It must be proven that the accused entered a habitation of another with the intent to commit theft, assault, or another felony.

The most common type of burglary of a habitation is when someone breaks into someone’s home and steals valuables. Technically, an actual theft does not have to occur to be charged with burglary of a habitation. The prosecutor is only required to prove that the accused entered the residence with the intent to commit theft or another felony.

In practice, let us be honest – if someone did not commit a theft while in another person’s residence without their consent, it becomes a more difficult case for the prosecutor to prove in a jury trial. Why? The best evidence of someone’s intent is their behavior and if there is no completion of the act of theft, it may be much easier for your criminal defense lawyer to establish reasonable doubt regarding your criminal intent. For example, if it turns out that you were in someone else’s house and accused of burglary of a habitation, without evidence of intent to commit theft, your charge could be lowered to the lesser misdemeanor offense of criminal trespass of a habitation, a Class A Misdemeanor, punishable by a term in the county jail of up to 1 year and a fine of up to $4,000.

What Is Considered A “Habitation” For The Crime of Burglary Of A Habitation?

Under Texas criminal law, a “habitation” refers to the alleged victim’s primary residence, secondary residence, or any property in which an individual resides. If the property were not being occupied by a resident, it would be categorized as burglary of a building, a lesser felony crime. However, the prosecutor is not required to prove that the residence was occupied continuously.

What Are The Elements of Burglary Of A Habitation With Intent To Commit Assault In Texas?

Most people think of the crime of burglary of a habitation as being solely an issue of someone stealing something from someone’s home. However, you can also be charged with the crime of burglary of a habitation if there was intent by the accused to commit assault against the victim.

More specifically, Under Texas Penal Code, Section 30.02, if the State of Texas can prove beyond a reasonable doubt that you entered a habitation of another with the intent to commit assault, sexual assault, kidnapping, aggravated assault, or robbery, you could be facing a first-degree felony, punishable by a prison sentence of a minimum of five years up to 99 years or life and a $10,000 fine. Obviously, this type of criminal charge is not a trivial matter, and you must collaborate with an experienced criminal attorney that can prepare a winning defense strategy for your case.

Legal Defenses To Burglary Of A Habitation

If you have been arrested and charged with burglary of a habitation in Texas, you must educate yourself on winning legal defenses under Texas law. Let us examine a few legal defenses to the crime of burglary of a habitation.

Consent To Enter And Remain In The Residence

What if a theft or assault took place in a residence but the accused had permission, whether express or implied, to enter and remain in the residence? Regardless of the criminal act committed in a residence, if the prosecutor cannot prove beyond a reasonable doubt that the accused lacked consent to enter and/or remain in the residence, the crime of burglary of a habitation will not be proven.

For example: a man comes over to visit his ex-wife and see his biological children. The ex-wife allows him into the residence and an argument ensues. She begins yelling at him and claims he entered into the residence with the intent to assault her and calls the police. Even if the man did assault her, can the police establish that he lacked consent to enter the residence? No! There may be a crime of domestic violence assault in this example, but the police will have a tough time establishing probable cause for the crime of burglary of a habitation with intent to commit assault.

Lack Of Criminal Intent To Commit Theft Or Other Felony

What if someone is not permitted to enter into an alleged victim’s residence but no theft or assault has taken place? What if the homeowner arrives to find someone in their house but nothing has been stolen or moved around? Can the crime of burglary of a habitation be proven? Proving the crime in these instances will hinge on proving the element of intent to commit theft or other felony.

For example: we have represented citizens that entered the wrong residence because they were drunk or confused and walked around inside the residence and the homeowner understandably panicked and called the police and had them arrested for burglary of a habitation. Did they have the criminal intent to commit theft or other felony? NO! At most, they committed the crime of criminal trespass, a lesser misdemeanor crime with no possibility of prison. It is critical that your criminal defense attorney thoroughly explore the facts of your case do determine if there is sufficient evidence to establish criminal intent to commit theft or other felony.

Reasonable Doubt

The accused is never required to prove anything in a jury trial. The burden of proof to establish every element of the crime of burglary of a habitation always rests on the State of Texas the prosecutor’s office. The best criminal attorneys know that every reasonable doubt that can be established in a legal defense provides leverage to negotiate a more favorable result for their clients. Do not just assume the police reports and other evidence are accurate!

Grand Jury Presentations – Burglary Of A Habitation

What if your criminal defense attorney obtains the evidence on the case and determines there are problems with the prosecutor proving the case beyond a reasonable doubt? What if you have supplemental evidence that will show the police reports are inaccurate or unreliable? What if you have witness statements showing a different perspective or establishing exculpatory evidence? In this instance, your criminal lawyer MUST make a presentation to the grand jury.

The grand jury is a panel of twelve citizens that listen to hundreds of felony criminal cases per week to determine if probable cause exists to substantiate the case. In most instances, the grand jury only hears one side of the story from the prosecutor and will approve the case as a felony, known as a true bill. However, if your criminal defense attorney collaborates with you to prepare a grand jury presentation packet, the grand jury will have the opportunity to hear the other side of the story and could resolve your case in a favorable manner.

The grand jury, after hearing your evidence presentation, could lower the charge to a lesser misdemeanor offense. It is always easier to resolve a misdemeanor than a felony. Even more beneficially, the grand jury could no bill your case. A no bill is the equivalent of dismissing your criminal case, thereby making you eligible for an expunction of your criminal record.

Is Burglary Of A Building A Felony In Texas?

Yes. Under Texas criminal law, Burglary of a building is labeled a state jail felony, punishable by a term in a state jail facility of not less than 180 days but not more than 2 years.

Under Texas Penal Code, Section 30.02, a person commits the offense of burglary of a building if, without the effective consent of the owner, the person enters a building not then open to the public, with intent to commit a felony, theft or an assault or remains concealed, with intent to commit a felony, theft, or an assault in a building or enters a building and commits or attempts to commit a felony, theft or assault.

What Is The Sentence For Burglary Of A Building In Texas?

For a first-time offender, the maximum sentence for a burglary of a building is 2 years in a state jail facility. However, if the accused has multiple prior state jail facilities or a single TDC conviction for which they served prison time, the charge can be enhanced from a state jail felony crime to a third degree or second-degree felony.

Can You Get Probation For Burglary Of A Building In Texas?

It is always possible to obtain probation for burglary of a building in Texas. However, every case is unique and there are several factors that will determine whether probation is an option for you:

1. Are you a first-time offender? If you have prior criminal history, probation may not be an option
2. How aggravating are the facts of the case? If items stolen or the assault was violent, your attorney may have a challenge obtaining probation
3. What Texas county are you in? Some Texas counties are less likely to offer probation than others, even for first-time offenders.
4. Restitution – if you are able to provide restitution as part of the plea process, it dramatically increases the probability of a probation.

Should You Consider Probation For Burglary Of A Building In Texas?

At the Fulgham Law Firm, we work tirelessly to protect our clients from every taking a plea deal that puts their freedom or future at risk. Our goal is always to get a criminal case dismissed. If you are innocent of the allegations, you should work with a criminal defense attorney that will work tirelessly to clear your name.

However, even if probation makes sense for you, it is important to make certain that you consider deferred adjudication probation rather than straight probation. If you take a plea deal for straight probation, you will not be eligible to have your arrest or charge removed from your criminal record. However, if you accept a plea offer for deferred adjudication and you successfully complete the terms and conditions of the deferred probation, you will be eligible for a non-disclosure to seal your criminal record.

Fort Worth Burglary Charges Attorney

If you have been arrested and charged with Burglary in Fort Worth, Arlington or in Tarrant and surrounding counties, you need a skilled criminal attorney with experience. At the Fulgham Law Firm P.C. my goal is to prevent jail time and to achieve a result that makes sure you can someday clear your record.

At the Fulgham Law Firm P.C. you will find a Fort Worth criminal law practice with a team of Former Prosecutors with over 80 years of experience and over 500 criminal trials focused on passionately defending the accused. Contact my Fort Worth office now at 817-886-3078 for a free and confidential consultation with an experienced Fort Worth criminal attorney.