Updated October 26, 2021; Original Post: June 15, 2018
Burglary covers several different kinds of theft under Texas law. If you have been arrested for felony or misdemeanor burglary charges, it is critical that you have a thorough understanding of what Texas criminal law says about burglary and that you have find an experienced and aggressive criminal defense attorney that will argue your case to preserve your freedom and criminal record. In this post, we’ll detail the types of burglary, their penalties, and how you can get help if you are facing charges.
Burglary as Defined by Texas Statute
In order to be convicted, the State of Texas must prove the following elements of burglary beyond a reasonable doubt: an individual entered a private building, structure, or habitation with intent to commit a crime within, but without consent of the owner.
What does “with intent to commit a crime” mean? The “crime” mentioned in the statute could be assault, theft, or other felonies. In other words, you must have entered the residence or building with the specific intent to commit a crime.
Unlawful entry and intent to commit a crime are essential pieces in a burglary case. Even if the intended crime was not carried out, an individual can face burglary charges. A conviction may occur if the prosecutor can prove beyond a reasonable doubt that both elements of the burglary charges are true.
Remember, the State of Texas must prove both unlawful entry or remaining in the building or habitation AND that you intended to commit or attempted to commit a theft or assault. Failure to prove these elements beyond a reasonable doubt will result in your burglary charge being dismissed.
What does it mean to “enter” a private building or habitation? There are only two ways to “enter” a building or habitation: with the owner’s consent or without the owner’s consent.
If you entered the property WITH the owner’s consent but stayed on the property beyond the time permitted by the owner, you could face a burglary charge IF you had the criminal intent to commit a theft or felony crime. A prime example is entering a store or business during the operating hours but staying after the business has closed with the intent to commit theft – steal items or clothes, etc.
If you entered the property WITHOUT the owner’s consent, you have a bigger problem. If you do not have consent, you don’t even have a good faith argument that you had a non-criminal purpose of being present on the property. As such, actual entry into the property is not even required in order to prove the burglary case beyond a reasonable doubt by the prosecutor.
For example: if someone reaches through an open window with the intent to steal something, they may be charged with burglary of a building or burglary of a habitation, depending upon the type of structure. It may seem strange, but if you had no consent to be on the property, even a slight entry into the building or home by a body part or other object will meet the definition of “entry” under Texas burglary law.
Different Actions That Constitute Burglary in Texas
Texas law criminalizes several different types of burglary, including the following:
Burglary of a Non-Habitation Building
The crime of Burglary of a Building is committed if an individual unlawfully enters or remains inside a private or public building that is not a habitation with the intent to commit assault, theft, or a felony, they can be charged with a state jail felony under Tx. Stat. & Code Ann. § 30.02(c).
Examples: if someone enters or breaks into a business, warehouse, store, or other private building with the intent to commit a crime, usually theft. Because the building being entered is something other than a person’s residence, the criminal offense is categorized as a lower felony than a burglary of someone’s residence.
If an individual breaks into a rail car, penalties can be enhanced.
Burglary of a Habitation
Burglary of a Habitation is committed when an individual enters or remains within a habitation with intent to commit felony theft or assault inside. Some states have this as a separate charge, but in Texas the burglary of any building is charged as “burglary.”
A conviction for this act will result in a second-degree felony. If the individual entered the habitation with intent to commit a felony besides felony theft, the charges will be raised to a first-degree felony.
Burglary of a Habitation with Intent To Commit A Serious Felony
Burglary of a Habitation with Intent to Commit a non-theft felony, also known as home invasion, is committed when someone enters or breaks into another person’s residence with intent to commit a serious felony other than theft. For example, if someone breaks into someone’s residence with intent to sexually assault someone or commit aggravated kidnapping or aggravated assault, they can be charged with a 1st degree felony, punishable by up to life in prison and up to a $10,000 fine.
Burglary of a Vehicle
Burglary of a Motor Vehicle is committed if an individual breaks into or remains inside a vehicle with the intent to commit theft, assault, or another felony within, Burglary of a vehicle is a class A misdemeanor. The criminal charge of burglary of a vehicle can apply if any body part or object (such as a coat hanger) is inserted in the vehicle to gain entry.
If the vehicle is intended for overnight accommodations, such as a recreational vehicle, the charge will be changed to burglary of a habitation with the associated penalties.
Burglary of a Coin-Operated Machine or Coin-Collection Machine
Burglary of a coin-operated machine is If an individual breaks into one of these machines without consent of the owner, he or she could face a Class A misdemeanor charge.
Specific Examples of Burglary in Texas
Here are examples of situations where burglary charges may apply:
- Staying past your permitted time in a private or public building with intent to commit assault inside
- Hiding inside a retail store after hours to commit theft
- Entering a rail car to commit theft
- Breaking into a coin collection machine, soda machine or coin operated video game to steal money
- Using a coat hanger to unlock a car door so you can steal a purse or other items
- Entering a recreational vehicle to assault someone inside
If you are facing charges for any scenarios described above (or others), it’s essential to contact an experienced Texas criminal attorney who can help you fight your charges and work to get them reduced or dropped.
What Is The Sentence For Burglary In Texas?
If you are convicted for burglary in Texas, you can face steep fines and incarceration.
Here is what you can expect:
If the act of burglary was committed in a building that is not a habitation, the charge is a state jail felony. The penalties for a state jail felony in Texas include a fine of up to $10,000 and a sentence of six months to two years in a state jail facility.
If the act of burglary was committed in a building that is a habitation, the charge is a second-degree felony. The penalties for a second degree felony include a fine of up to $10,000 and a sentence of 2-20 years in a prison.
If the act of burglary was committed in a building that is a habitation and the individual intended to commit a felony other than felony theft, the charge is a first-degree felony. The penalties for a first degree felony include a fine of up to $10,000 and a sentence of five years to life in a state prison.
What Happens If I Am Arrested For Burglary?
If you or a loved one have been informed that you have an active warrant for burglary, you need to contact a criminal defense attorney immediately to arrange how to process your bond and criminal case. An experienced and aggressive criminal defense lawyer can help walk you through the bonding process so that you have assurance you will be out of jail immediately and also prepare you for your legal defense as soon as possible.
Upon being released from custody, you will have a series of court settings that exist for the purpose of providing your criminal defense attorney an opportunity to negotiate a favorable result on your burglary case. Sometimes, burglary cases can be negotiated for a dismissal, depending upon the strength of the case and the prosecutor. If the negotiations end in a stalemate, a jury trial can be scheduled. At a jury trial, the State of Texas will be required to prove every element of burglary beyond a reasonable doubt. Failure to prove each element of the crime will result in a not guilty verdict and complete exoneration.
Can A Burglary Charge Be Dropped Or Dismissed?
After being arrested and booking out of jail, your criminal attorney can obtain access to your burglary reports and any videos linked to the alleged burglary. Your criminal lawyer needs to get this information to you and go over this evidence as soon as possible. If your case is a burglary of a habitation or burglary of a building, your burglary lawyer can present a packet of evidence to a grand jury for a possible dismissal of your burglary charge.
The presentation of evidence to the grand jury by your criminal defense attorney can result in three possible outcomes: (1) your case remains a felony burglary charge and you negotiate your case in felony court; (2) your felony burglary charge is lowered to a lesser misdemeanor charge, like criminal trespass; or (3) you receive a No Bill – a complete exoneration and finding that your burglary charge has now been dismissed.
Some examples of a few defenses that may apply to a burglary charge include:
No Criminal Intent To Commit Burglary
What if you entered into the habitation or building to find someone or locate something but nothing was actually taken? Remember, in order to prove burglary of a habitation or burglary of a building, the prosecutor must prove beyond a reasonable doubt that you not only entered or remained on the property illegally (without consent), but that you had the criminal intent to commit theft or other felony crime. If you are only found to have been in the building or habitation but there is little to no evidence establishing you had the intent to commit a theft or other crime, the prosecutor will have a difficult time proving criminal intent to commit a crime during a jury trial. In such a case, many times the felony burglary can be lowered to a lesser charge of criminal trespass, a Class B Misdemeanor punishable but up to 180 days in jail and up to a $2,000 fine. It is always much easier to negotiate a misdemeanor charge than a felony charge.
No Entry Was Made To Prove Burglary
What if a theft was committed but there was no “entry” into the structure or building? This is a situation that arises on occasion where someone was committing a theft on the premises but there was insufficient proof that they “entered” the building or habitation. If theft was committed on the property but no entry was made into the building or habitation, you could have a misdemeanor theft situation, rather than a felony burglary.
Get Help for Texas Burglary Charges
Penalties increase for second and subsequent similar offenses. It’s important to consult with a knowledgeable lawyer if you are facing charges like these.
A skilled Texas attorney will help you form a solid defense so that you can fight to attain the best possible outcome.
The Fulgham Law Firm is a team of former prosecutors with over 80 years of criminal law experience and over 500 jury trials in the courts of Texas. We stand ready to defend you and answer all your questions to provide you the best opportunity to have your burglary charges dismissed. Call today for a free case review and learn how a good criminal lawyer can help you beat your charges.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.