In Texas, a person commits burglary by unlawfully entering or remaining in any structure (public or private) with the intent to commit a felony, theft, or assault inside. Texas law also allows a burglary conviction without a showing of intent if, after an unlawful entry, the defendant commits or attempts to commit a felony, theft, or assault. A person can burglarize a building, structure, or “habitation.” A habitation includes any structure or vehicle adapted for overnight accommodation.
Burglary consists of two parts or “elements”:
In order to be convicted of burglary, both elements of the crime must be proven beyond a reasonable doubt (or admitted to by the defendant). Without sufficient proof of each element, the prosecutor may secure a conviction for some other crime, such as criminal trespass, but not burglary.
The first element of the crime of burglary—entering—may be accomplished in two ways, with consent or without consent.
Entry with consent. Entry with consent becomes a problem when the individual remains 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.
Entry without consent. Entry without consent is a problem from the beginning, as the individual entered the property without permission in the first place. Entry doesn’t require physically breaking into 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.
The second element of burglary concerns the defendant’s intent prior to entering or actions once they entered. To be convicted of burglary, the defendant must have either:
(Tex. Penal Code § 30.02 (2020).)
The punishment for a burglary-related conviction depends on the circumstances of the crime, including the type of property entered and what crime the defendant committed or planned on committing.
A person commits a first-degree felony when burglary involves a habitation and a felony other than felony theft (such as felony 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).
A person commits a second-degree felony when burglary involves a habitation and a felony theft or assault. Second-degree felony penalties include a fine of up to $10,000, imprisonment ranging from two to 20 years, or both.
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.
A person commits a state jail felony when burglary involves a building that is not a habitation and 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 (2020).)
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. 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.
A person who burglarizes a vehicle commits a class A misdemeanor, which includes punishments of a fine 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 (2020).)
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. Also, 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 or shelter centers).
(Tex. Penal Code §§ 12.21 and following, 30.05 (2020).)
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.