October 25, 2018Burglary, Theft Crimes
In Texas, burglary of a building or habitation is a criminal offense that is automatically prosecuted as a felony – meaning there’s always the possibility of jail or prison time. Moreover, although burglary is most often associated with theft, unauthorized entry into a building to commit another crime such as assault – or any felony-level offense – is also prosecuted as a burglary in our state.
Below we review what you should know about Texas burglary charges, including how burglary offenses are classified and sentenced.
How Texas Defines Burglary
Texas Penal Code § 30.01 – § 30.07 specifies that the charge of burglary applies when the defendant does one of the following without the effective consent of the owner:
- Enters a dwelling, building, or any portion of a building not open to the public with the intent to commit theft, assault, or any felony-level offense.
- Remains concealed with the intent to commit theft, assault, or any felony-level offense; or
- Enters a dwelling, building, or portion of a building not open to the public and commits or attempts to commit theft, assault, or any felony-level offense.
How does the law define the element of “enter” a dwelling? This is where it gets a little tricky. We already know that if you walk into a residence or building, that qualifies as “entering,” however, you can also meet this criminal element of burglary if you intrude ANY part of your body, or any physical object associated with your body with the intent to commit theft or assault.
For example: If someone is angry at another person and they approach their house with a baseball bat threatening action against them and in the process, they choose to bash out a window and they threaten they are going to assault the owner of the property inside, they could be charged with Burglary of a Habitation with intent to commit assault. How? Here, the threat made while breaking a window with a bat that entered the home, could qualify as meeting the elements of the crime. The bat would qualify as a physical object associated with the body that was used to “enter” the residence with intent to commit theft or assault.
Burglary Versus Criminal Trespass in Texas
People often confuse burglary, robbery, and theft, but there are actually two crimes that are far more closely connected in our state: burglary and criminal trespass.
To successfully convict a defendant of burglary, the prosecution must prove beyond a reasonable doubt that the defendant committed unauthorized entry into a dwelling, building, or part of a building without the owner’s consent, and with the intent to commit theft, assault, or any felony-level offense.
Similarly, entering a vehicle or breaking into a coin-operated machine with the intent to commit theft or a felony is also considered burglary. Under Texas criminal law, a person commits the crime of burglary of a vehicle if, without the effective consent of the owner, he breaks into or enters into any part of a vehicle with the intent to commit theft. What does “enter into” mean? It means to insert any part of the body, or any physical object connected with the body. Burglary of a vehicle is a Class A Misdemeanor in Texas, punishable by up to 1 year in the county jail and up to a $4,000 fine. If you have been previously convicted of a burglary of a motor vehicle, you could be charged with a state jail felony, punishable by up to 2 years in a state jail facility and up to a $10,000 fine.
For example: What if someone is found trying to enter into another person’s car with a hanger? The car was not their car and there is no reason to believe they made entry into the car? It may not matter in this example. The mere act of using the hanger to shove through the window and attempt to make entry could be construed as sufficient evidence to establish probable cause for an arrest for the crime of burglary of a motor vehicle.
Related to the crime of burglary of a habitation or building, even if the defendant did not commit or attempt to commit the crime, so long as the prosecution can prove the intent of the defendant, this is still considered burglary. However, because criminal intent is a state of mind, this is often somewhat difficult to prove, and the prosecution may rely on strategies such as confessions or circumstantial evidence.
For example: what if someone is found banging on the front door of another person’s home demanding they open the door because they want to speak to the owner? What if the owner refuses to open the door and the person peeks their head through an open window or forces their finger through a cracked, but locked door? These are real-life examples where someone has been charged with burglary of a habitation when these facts were coupled with statements creating a belief that the individual had the intent to enter the residence to steal or commit an assault.
If the element of criminal intent is not present, the defendant will be charged with the lesser crime of criminal trespass. Criminal trespass is a Class B misdemeanor under Texas law, punishable by up to 180 days in county jail and up to a $2,000 fine. However, if the criminal trespass is regarding a habitation, the charge is a Class A Misdemeanor, punishable by up to 1 year in county jail and up to a $4,000 fine. To convict the defendant of criminal trespass, the prosecution must only prove that the defendant entered or remained on the property of another party without that party’s consent, and had notice that entry was forbidden, or received notice to leave but failed to do so. The primary defense on a criminal trespass case usually centers on whether the defendant had adequate notice to depart.
Burglary Sentencing and Penalties in Texas
Burglary offense classifications depends on several factors, including whether the building or structure is a habitation, and what crime the defendant intended to commit:
- State jail felony:Burglary committed in a building other than a dwelling; punishable by six months to two years in state jail and a fine of up to $10,000
- Second degree felony:Burglary committed in a habitation; punishable by 2-20 years in prison and a fine of up to $10,000.
- First degree felony:If the premises are a dwelling and the defendant entered with the intent to commit any felony other than felony theft; punishable by five years to life in prison and a fine of up to $10,000.
Importantly, if the defendant committed or attempted to commit any crimes after the unauthorized entry, these offenses or attempts thereof will be prosecuted as separate charges.
Clearly, burglary charges are serious. However, this is one crime that can be extremely difficult to prove, depending on the circumstances of the alleged offense. Therefore, if you are facing burglary charges, several defense strategies may be available to help your case. You just need to understand which is best for you and how to best use it.
Defenses To Burglary in Texas
The primary defense to burglary in Texas is that there was no intent to commit a crime (theft, assault, or other felony). If someone enters a home but had no intent to commit theft or assault, they cannot be convicted of burglary of a habitation. One of the best ways to show this is to look at what the accused was found with at the time of his arrest. Did he have property in his possession? If not, there is a strong argument he had no intent to steal. Was there someone in the home at the time he entered? If not, there is a strong case that he had not intent to assault someone that was not there. Did the accused fail to make threats or act aggressively to the homeowner? Then there is reasonable doubt related to the criminal intent element of burglary.
You can also argue that you never “entered” into the residence or building. Merely walking around the outside of a building or residence alone is not sufficient to prove the criminal element of “entered.” If the facts of your case are questionable regarding how entry was made, your experienced and aggressive criminal defense attorney can use this ambiguity to your benefit by arguing the State of Texas can not meet their burden to prove every element of the crime beyond a reasonable doubt.
Another defense to the crime of burglary of a building is that you entered the building, but the building was open to the public. If the building was open to the public, the state of Texas may be able to prove the lesser included misdemeanor crime of theft, but they will not be able to prove burglary of a building.
For example: you enter a retail business looking to steal clothes and other items. If you enter when the business is open and available to the public, it is a crime of theft. If you wait to enter the business when they are closed and not open to the public, the charge can be elevated to the crime of burglary of a building.
What if you are facing a felony burglary of a habitation with intent to commit assault or sexual assault? Is there any actions that can be taken on your case from the beginning? Yes! Your criminal defense lawyer needs to make a request for the file of evidence from the prosecutor and immediately begin analyzing your burglary charge for any weaknesses and problems.
Every felony case in Texas must be presented a grand jury. Grand juries are required under Texas law as a filter for bad criminal cases. The grand jurors listen to evidence and decide if probable cause exists for the alleged crime. The best criminal defense attorneys take advantage of the grand jury system to get favorable evidence for their client in front of the grand jury to possibly get the case dismissed. Upon presentation of the evidence to the grand jury, the grand jury can keep the case as a felony burglary charge, drop the charge to a lesser misdemeanor offense, or no bill the case. A decision to no bill the case is essentially a dismissal that exonerates you of all wrongdoing and allows you to get your arrest record and criminal records completely expunged.
If you or a loved one is facing a felony burglary or misdemeanor burglary charge in Tarrant County or other area of North Texas, don’t’ hesitate to contact the Fort Worth Criminal Defense Attorneys, PLLC for a free consultation. Our team of 5 Former prosecutors with over 80 years of criminal law experience stand ready to defend you from the government and work to protect your freedom, your good name, and your future. Let us prepare you a custom defense strategy to help you get your life back.
About the Author:
After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.
