What Does Texas Consider Burglary of Habitation?

There are several different types of crimes against property in Texas. Burglary of a habitation is the most common type. Other types of burglary charges include burglary of a vehicle and burglary of coin-operated or coin collection machines. Criminal trespass is another type of crime against property. Each of these crimes has some similarities and some key differences.

Burglary is defined as follows:

1. A person commits an offense if, without the effective consent of the owner, the person:
   1. 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
   2. remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation;  or
   3. enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
2. For purposes of this section, "enter" means to intrude:
   1. any part of the property; or
   2. any physical object connected with the property.

Generally, burglary of habitation (sometimes called a “home invasion”) includes any type of residential property such as a home, apartment, or motel room, whether the property is occupied or unoccupied. Burglary of habitation doesn’t require that a defendant commit a crime once they enter the building. Defendants can be found guilty if they break and enter with the intent of committing a felony, theft, or assault.

These definitions can often be critical to your defense. For example, if the prosecution cannot prove that you “intended” to commit a felony, theft, or assault – and you never attempted or actually committed a felony, theft, or assault – then the burglary by habitation charge should be dismissed.

The differences are also critical to the type of sentence you might serve if you are convicted. For example (with some exceptions), burglary of a habitation is a felony of the second degree. Burglary of a building other than a habitation is a less serious state jail felony.

How does burglary of habitation different from criminal trespass?

Texas defines criminal trespass as follows:

1. A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, a general residential operation operating as a residential treatment center, or an aircraft or other vehicle, without effective consent and the person:
   1. had notice that the entry was forbidden; or
   2. received notice to depart but failed to do so.

The differences between burglary of habitation and criminal trespass include:

Differences in the definitions

• To file burglary of habitation charges, the government must, at least, show that the defendant didn’t have permission to be on the property and did have the intent to commit a crime.
• To file criminal trespass charges, the government must show that the person knowingly entered or stayed on the property (without permission of the owner), with or without the intent to commit a further crime.

Differences in the penalties

• Burglary of habitation is a second-degree felony. If convicted, a defendant can be sentenced to between 2 and 20 years, and fined up to $10,000.
  1. If the burglary took place on commercial property (non-residential property), the offense is charged as a state jail felony, a lower offense than a second-degree felony. The punishment for a state jail felony is between 180 days and 2 years and up to $10,00 in fines.
  2. Burglary penalties may be upgraded to a first-degree felony if a deadly weapon was used.
• Criminal trespass is a class B misdemeanor. A conviction is punishable by a prison sentence of up to 180 days in jail and a fine of up to $2,000. In some cases, such as certain trespasses on protected freshwater areas or agricultural land, the charge may be reduced to a Class C misdemeanor.

Differences in examples

• If a person breaks into a building to seek shelter from a rainstorm without any evidence of improper intent, then they could be charged with criminal trespass, but not burglary by habitation.
• If they break into a habitable residence with the intent to steal or assault someone, they could be charged with burglary by habitation.

What are potential defenses against Texas burglary by habitation charges?

Possible defenses may include:

• You reasonably believed the property was open to the public.
• You did have permission from the owner to be on the property – provided the consent was provided voluntarily.
• You did not have the intent to commit a felony, theft, or an assault when you entered or stayed on the property – and you did not commit a crime while on the property. The intoxication of a defendant “may” be enough to show that a defendant did not have the requisite intent.
• The government cannot prove the criminal charge beyond a reasonable doubt.
• You were innocent – the government has the wrong person.
• Other defenses depending on what happened.

Attorneys may also assert that the government violated your Constitutional rights – for example by forcing you to give testimony against yourself.

How does the government show a defendant had intent?

The prosecution will seek to prove a defendant intended to commit a felony, theft, or assault in various ways, including:

• Any statement that you gave. Clients should decline to speak with the police or prosecutors precisely because any statements you give can be used to help convict you.
• The testimony of any eyewitnesses.
• The physical evidence such as the breaking of a lock.
• You did not have a reasonable explanation for being in someone’s home.
• You have a weapon or an instrument of a crime in your possession such as a knife or a suitcase to take away stolen items.
• You were wearing a disguise.
• There was some history of conflict between you and the owner of the property.
• How the property looked when you were arrested – such as indications you were looking for something in the home.

Skilled criminal defense lawyers work aggressively to suppress evidence, obtain dismissals and acquittals of burglary of habitation charges, and negotiate plea bargains to less serious offenses such as criminal trespass charges. Call a criminal defense lawyer today if you’re facing any criminal charges in Texas.