burglary of habitation

Everything You Need to Know About Burglary of Habitation in Texas

The number of burglaries reported in Texas is on the decline. In 2016, 148,073 burglaries occurred state-wide. By 2017, the number dropped by 10.1 percent to 133,145.

Texas still has a high number of burglary crimes because it has a unique law called “burglary of habitation.”

In burglary of habitation, a defendant doesn’t need to complete a burglary or another crime to receive the charge. They only need to break and enter a home with the intent to commit theft (or another felony crime).

Keep reading to learn more about Texas’s unique burglary laws and how the state prosecutes and punishes them.

What Does Burglary of Habitation Mean?

According to Texas law, burglary of habitation occurs when a person or persons enter a home without first receiving permission from the property owner.

The law applies to all residential properties including primary and secondary homes. Those premises do not need to be occupied all the time.

The unique aspect of the burglary of habitation law is that it counts whether or not the individual(s) involved engaged in theft.

For example, if someone breaks into a home (enters without permission) to allegedly scout the place for a later burglary, then they still violate the burglary of habitation code.

They can still be charged even if the theft did not take place. However, the state still needs to prove that the burglary took place so that the defendant could commit a second felony (assault, theft, or another felony).

In other words, breaking in on a dare – and not to commit further crimes – is not punishable under burglary of habitation. Breaking and entering in Texas to steal valuable property is even if the act does not occur during the initial break-in.

How Does Texas Punish Burglary of Habitation

In the state of Texas, burglary of habitation, or a home invasion, is a second-degree felony.

In most past cases, data shows that the sentence length assigned after a conviction is five to ten years. A sentence of under five years is also possible, and 10 to 20 years is less likely.

Still, the Texas Penal Code assigns the following punishment standards for second-degree felonies:

  • Prison sentence of greater than two but not more than 20 years
  • A fine not to exceed $10,000

If the event took place on premises that is commercial (whether public or private), then the charge is a state jail felony.

A state jail felony is the lowest level of felony in the state of Texas. It comes with a punishment of 180 days to two years in state jail. Those convicted may also pay a fine up to $10,000.

If a defendant already has a felony record or used a deadly weapon, then a judge may bump up the charge to a third-degree felony, which comes with a longer sentence.

Burglary vs. Trespass in Texas

Texas’ burglary law is unique in that it goes by the name “burglary” even if the theft did not take place.

However, burglary of habitation is still distinct from Texas criminal trespass law.

A criminal trespass occurs when a person knowingly enters or remains on private property without seeking or receiving consent from the property owner. Trespassing can occur on land or in a building or another structure.

The defining difference between criminal trespass and criminal burglary is this: trespass occurs with or without the intent to commit a further crime.

Thus, it skips the second element required in the burglary of habitation.

Criminal trespass is a class B misdemeanor in Texas except in cases where it occurs near protected freshwater areas. Then, it is a class C misdemeanor.

Prosecutors can elevate it to a class A misdemeanor in cases where it occurred in a habitation or another specified location. It also carries class A status when the defendant possessed a deadly weapon when trespassing.

Burglary of Habitation Defense

To prosecute a burglary of habitation charge, the state must prove that:

  1. The defendant did not have permission to be on the premises.
  2. The defendant had the intent to commit a crime.

Without proving both of these, they cannot prove burglary of habitation. It might instead be lowered to a class A misdemeanor for criminal trespass (if the crime occurred in a habitation) or a class C misdemeanor if it did not.

There are several potential defenses available.

First, it is possible to argue that the defendant did have the owner’s consent to enter the property. The plaintiff needed to provided consent voluntarily and be capable of consenting. For example, permission from a child is not consent.

Second, it is possible to argue coercion. In this defense, the defendant committed the burglary under threat of severe physical harm.

Third, it is possible to argue innocence. If there is no evidence or proof that it was the defendant who committed the crime – even when a crime occurred – then it is possible to argue this defense.

Fourth, lawyers can argue intoxication as a defense. If the defendant was drunk or high to a point where intent could not be formed, intoxication could serve as a defense. This remains true even when the defendant became intoxicated voluntarily.

Regardless of what did or did not occur, a burglary of habitation charge is a felony charge. Defendants facing these charges need legal representation to fight them in court.

With legal help, these charges ultimately become lesser charges, like that of criminal trespass, when the state can’t prove intent to commit a felony. It’s the difference between a misdemeanor and a felony record.

Fight Your Charges

Burglary of a Habitation in Texas requires the state to prove the defendant’s intent to commit a crime. These cases are not as clear-cut as the state would like them to be.

If you are facing any felony charges, then you need a criminal lawyer. Fill out this form below to request a free consultation from Attorney Mario Madrid and get answers to your questions today!