A person commits burglary if, without the effective consent of the owner, the person:
- enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
- remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
- enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
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; breaking could be from breaking a window or a lock on a door. 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 “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.
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 and it is in a habitation (i.e., residence), the punishment is a <2nd degree felony>. If an individual enters a habitations 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 felony>.
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.