In Texas, burglary is an 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.
Burglary Versus Criminal Trespass in Texas
In order to successfully convict a defendant of burglary, the prosecution must prove beyond a reasonable doubt that they 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.
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.
If the element of criminal intent is not present, the defendant will be charged with the lesser crime of criminal trespass. In order 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.
Burglary Sentencing and Penalties in Texas
Burglary offense classification 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, a number of 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.
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.