A person commits burglary if, without the effective consent
of the owner, the person:
“Entering” means to intrude any part of the body or any
physical object connected with the body. It is commonly misunderstood that
burglary is only committed when an individual breaks into a habitation or
building. This is not accurate. Even if a window is open or a door is unlocked,
an individual can still be charged with burglary by entering without literally
“breaking.” If an individual uses a tool to break a window, the individual
never enters, but the tool intrudes into the protected premises when the window
was broken, it is still possible to be found guilty of burglary. Burglary does
not require a habitant to be present in the habitation or building.
This section of the Texas Criminal Code does not apply to
burglary of vehicles.
If an individual commits burglary, the punishment is a state jail felony if committed in a building other than a habitation. If
an individual commits burglary in a commercial building that is used to
store controlled substances and intended to commit a theft of controlled
substances, the punishments is a 3rd degree felony. If an
individual commits burglary and it is in a habitation (i.e., residence), the
punishment is a 2nd degree felony. If an individual enters a
habitation and any party to burglary entered the habitation with intent to
commit a felony other than felony theft or committed or attempted to commit a
felony other than felony theft, the punishment is a 1st degree
A crucial defense to burglary is showing that the individual
entered the building or habitation without the intent to commit a felony,
theft, or assault. If an individual enters without the intent or forms the
intent after entering, the actions would not call for a charge of burglary.
Additionally, if the habitation or building is open to the
public and no felony, theft, or assault was committed, the individual did not
enter in violation of the law. If an individual enters a building or habitation
open to the public and commits a felony, theft, or assault, they could be found
guilty of those individual charges, but not burglary.
Another possible argument is that the individual charged
with burglary owned the premises. Ownership is determinate by who has the
greater right to possession. An individual cannot burglarize his or her own
building or habitation. This argument is rare, but is still possible.
The exact language of these laws, further details, and
additional punishment concerns can be found in section 30.02 of the Texas Penal Code. None of this information can take place of the
information, knowledge, and expertise provided by a licensed attorney.
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