Each state has its own laws defining burglary, attempted burglary, home invasion (the burglary of a dwelling), and trespass. And penalties vary according to the circumstances of the crime, as described below.
In Texas, burglary is defined as unlawfully entering or remaining in any structure (public or private) with the intent to commit a felony, theft, or assault inside. “Home invasion” is included in this definition, and refers specifically to a burglary that occurs within a habitation (any structure or vehicle that is adapted for the overnight accommodation of one or more people). (Tex. Penal Code § 30.02.)
The two parts of the definition—unlawful entry and intent to commit a felony, theft, or assault inside— are known as the “elements” of the crime, and to be convicted of burglary, both elements of the crime must be proved beyond a reasonable doubt (or admitted to by the defendant). That is, the prosecutor must prove that the defendant actually entered (or remained in) the building, and entered (or remained) with the intent to commit a felony, theft, or assault therein. Without sufficient proof of each element, the prosecutor may secure a conviction for some other crime (such as trespass or some other crime), but not burglary.
And notice too that the intended crime (such as theft from the building) need not be completed; proof of entry and of the intent to commit one of these crimes inside are the only requirements for a conviction.
The first element of the crime of burglary—entering—may be accomplished in two ways: (1) by breaking into or entering property that you don’t have permission to enter in the first place, or (2) by remaining on property after the time you are permitted to be there has expired.
An example of the second scenario 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.
The second element of burglary concerns the defendant’s state of mind at the time he or she entered the building. To be convicted of burglary, the defendant must have decided to commit a felony, theft, or assault, and then entered the building (or stayed beyond the permitted time) for that purpose.
The punishment for a burglary conviction depends on the circumstances of the crime.
Burglary of a building that is not a habitation is a state jail felony and occurs when a defendant unlawfully enters or remains in a public or private building (but not a habitation) with the intent to commit a felony, theft, or assault. (Tex. Penal Code § 30.02(c).)
Burglary of a habitation, or home invasion, is a second-degree felony and occurs when a defendant unlawfully enters or remains in a habitation with the intent to commit a felony theft or an assault therein. The crime increases to a first-degree felony if the defendant entered the habitation with the intent to commit a felony other than felony theft therein. (Tex. Penal Code § 30.02(d).)
Burglary of a vehicle is a class A misdemeanor and occurs when a defendant breaks into or unlawfully enters a vehicle that is not used for habitation with the intent to commit a felony or theft therein.
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.
Vehicles that are adapted for overnight accommodation (such as a house trailer, or even a car that a reasonable person would perceive as being used as a habitation) are considered a habitation for the purposes of punishment, described above in “Burglary of a habitation.”
Penalties increase for second and subsequent offenses, and if the vehicle was a rail car. (Tex. Penal Code § 30.04.)
Similar to burglary, criminal trespass is defined as knowingly entering onto (or remaining on) private property without the consent of the owner. The property may include land or a building or other structure.
The difference between trespass and burglary is that trespass does not have the element of entering with the intent to commit a crime (the second element of burglary), as explained above. Instead, merely entering (or remaining) without consent qualifies as trespass.
Entry means the entire body. And lack of consent can be direct (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.
Criminal trespass is a class B misdemeanor unless it occurred on certain agricultural or residential lands near protected freshwater areas, in which case it is a class C misdemeanor. The crime increases to a class A misdemeanor if the offense was committed in a habitation, shelter center, or other specified locations, or if the defendant carried a deadly weapon during the offense. (Tex. Penal Code § 30.05.)
If you have been charged with burglary, criminal trespass, or a related crime, or if you have questions about state laws, 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.