Burglary and Home Invasions in Texas

Texas, like many states, makes burglary a felony. The state reserves the harshest penalties for burglary of a habitation. This article will review the penalties for burglary of homes, buildings, and vehicles. In addition, it will cover the related offense of criminal trespass.

Crime of Burglary in Texas

In Texas, a person commits burglary in one of three ways, by:

• unlawfully entering a habitation, or a building that's not open to the public, with the intent of committing a felony, theft, or assault
• unlawfully remaining concealed in a habitation or building with the intent of committing a felony, theft, or assault, or
• unlawfully entering a habitation or building and committing or attempting to commit a felony, theft, or assault.

In order to be convicted of burglary, the prosecutor must prove all of the criminal elements beyond a reasonable doubt. Without sufficient proof of every element, the prosecutor may secure a conviction for some other crime, such as criminal trespass, but not burglary.

The two key elements of burglary offenses involve (1) entering or remaining without consent and (2) intending or attempting to commit a crime.

Breaking and Entering (Unlawfully Entering or Remaining Concealed)

Often, we hear the phrase "breaking and entering" when referring to burglaries. Many states, including Texas, no longer use this language. Instead, current law prohibits unlawfully entering or remaining concealed in a building.

Unlawful entry. An unlawful entry doesn't require a physical breaking. Rather, it means the person didn't have permission to enter the structure. Any intrusion into the building, however slight, with a body part or physical object used by the person qualifies as an entry. For instance, pushing open an unlocked door with a foot, hand, or crowbar would be an entry.

Remaining concealed. A person can also commit burglary by initially entering with permission but then remaining concealed on the property after the time permission to be there expires. An example includes legally entering a department store during business hours but then hiding when the store closes to the public in order to steal merchandise after hours. Or going to a party but staying there after the host tells the person to leave.

Intending, Attempting, or Committing a Crime

For a burglary conviction, the prosecutor must also establish that either:

• at the time of entry or concealment, the defendant intended to commit a felony, theft, or assault, or
• after entry, the defendant attempted to or did commit a felony, theft, or assault.

Neither requires the defendant to complete the intended or attempted crime.

Prosecutors usually prove a defendant's intent through circumstantial evidence (unless the defendant wants to confess). For instance, if police find someone opening up an exes' window with a knife in hand, the prosecutor can likely prove intent to assault the ex.

(Tex. Penal Code § 30.02 (2022).)

What Are the Penalties for Burglary in Texas?

The punishment for a burglary conviction depends on the circumstances of the crime, including the type of property entered and what crime the defendant committed or planned on committing.

Penalties for Burglary of a Habitation

Burglary of a habitation (a residence) carries the harshest felony penalties. The definition of habitation is broad and includes any structure or vehicle adapted for overnight accommodations. This can include an occupied, unoccupied, or even vacant house, apartment, dorm room, mobile home, or RV. When determining what qualifies as a habitation, Texas courts focus on whether the place was "adapted" for overnight accommodations. If a place has the basic necessities of heat, water, light, electricity, and some furniture, it's generally found to be adapted for overnight accommodations.

Texas law makes burglary of habitation a first- or second-degree felony based on the intended or attempted crime.

First-degree felony. A person commits a first-degree felony when burglary involves a habitation and a felony other than felony theft (such as felony assault, sexual assault, or kidnapping). The punishment for a first-degree felony can include a fine of up to $10,000 and imprisonment ranging from five to 99 years (essentially life in prison).

Second-degree felony. A person commits a second-degree felony when burglary involves a habitation and the intended crime is theft or misdemeanor assault. Second-degree felony penalties include a fine of up to $10,000, imprisonment ranging from two to 20 years, or both.

Penalties for Burglary of Commercial and Other Buildings

Felony penalties also apply to burglaries of buildings that are not habitations.

Third-degree felony. A person commits a third-degree felony when burglary involves entering a commercial building intending to steal a controlled substance. Examples of such commercial buildings include pharmacies, clinics, hospitals, nursing facilities, or warehouses. Penalties for a third-degree felony can include a fine of up to $10,000, imprisonment ranging from two years to ten years, or both.

State jail felony. A person commits a state jail felony when burglary involves a building that is not a habitation and the intended crime is a felony, theft, or assault. State jail felony penalties include a fine of up to $10,000, imprisonment ranging from six months to two years, or both.

(Tex. Penal Code §§ 12.32 and following, 30.02 (2022).)

What Are the Penalties for Burglary of a Vehicle?

Burglarizing a vehicle adapted for habitation (like an RV) falls under the first- and second-degree felony penalties described above. Texas law provides a separate penalty for burglary of a vehicle not used for habitation.

Burglary of a Vehicle

This crime occurs when a defendant breaks into or unlawfully enters a vehicle or any part of a vehicle with the intent to commit a felony or theft inside. The entry element is satisfied if the defendant inserted any body part or object connected to the body into the vehicle. For example, sticking a coat hanger through an open car window to extract and steal a purse from the car meets both entry and intent to commit a felony or theft elements.

Penalties for Burglary of a Vehicle

A person who burglarizes a vehicle commits a class A misdemeanor, which includes punishments of a fine of up to $4,000 and imprisonment of no more than one year. Penalties increase to a state jail felony for second and subsequent offenses and up to a third-degree felony if a wholesale distributor of prescription drugs owns the vehicle and the defendant breaks in with the intent to steal the drugs.

(Tex. Penal Code §§ 12.21 and following, 30.04 (2022).)

What Are the Penalties for Criminal Trespass?

Similar to burglary, a person commits criminal trespass by knowingly entering onto (or remaining on) private property without the consent of the owner. Lack of consent can be direct (such as an owner saying "you may not enter my property") or inferred on property that has fencing, conspicuously-posted signs, or other indicators that the land or structure is private property.

Unlike burglary, criminal trespass does not require committing or intending to commit a crime (the second element of burglary), as explained above. Instead, merely entering (or remaining) without consent qualifies as trespass.

Criminal trespass protects more than buildings and structures. A trespass can occur on property, such as land. This includes residential land, agricultural land, or an RV park. In addition to buildings and land, a person can commit trespass when they enter or remain on an aircraft or other vehicle without the consent of the owner.

Criminal trespass is generally charged as a class B misdemeanor, punishable with a fine of up to $2,000, imprisonment for up to 180 days, or both. In some instances, trespass offenses are charged as class C misdemeanors (lands near protected freshwater) or class A misdemeanors (habitations, residential treatment, or shelter centers).

(Tex. Penal Code §§ 12.21 and following; 30.05 (2022).)

Talk to a Lawyer

If you have been charged with burglary, trespassing, or any other crime in Texas, consult a qualified local criminal defense attorney. Only an attorney can review the unique facts of your situation and advise you on how the law will apply to your case.