Burglary Defense

BURGLARY DEFENSE

Burglary and attempted burglary are theft charges; however they are treated more severely than typical theft cases because they also contain elements of trespassing (the accused was somewhere he or she had no right to be while attempting to do something illegal as in a home burglary).
Burglary in Texas is defined as:
• Entering a habitation, a building, or any part of a building not open to the public and without consent of the property owner, with the intent to commit a felony, a theft, or an assault;
• Remaining concealed in a building or habitation with the intent to commit a felony, a theft, or an assault; or
• Entering a building or habitation and committing or attempting to commit a felony, theft, or assault.

If any part of the body or any object being held or somehow attached to the body of the burglar has entered the building, the person may still be charged with burglary.

For example, if a person is holding a flashlight and placed it INTO a door or window of a house or building that not open to the public, he or she can still be charged with burglary. However, holding the same flashlight up to a closed window to look inside will not amount to burglary.

Any building can be burglarized, however, substantially more severe penalties attach to the burglary of an inhabited dwelling (home) than attach to the burglary of an uninhabited structure.

Burglary of a Habitation
Burglary of a habitation is a second degree felony punishable by 2-20 years in prison. However, burglary of a habitation becomes a first degree felony punishable by 5-99 years or life if:
• The premises are a habitation; AND
• Any party to the offense 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.

Therefore, the use of a deadly weapon in the burglary of the habitation can contribute to the intent to commit a felony other than felony theft but does not by itself make the burglary of a habitation a first degree felony. The exception to this would be if the person carrying the deadly weapon was a felon because a felon in possession of a firearm is a felony in Texas.

Burglary of a Vehicle
This occurs when a person breaks into or enters a car without the owner’s permission, with intent to commit a felony or a theft. Generally this is a Class A misdemeanor and carries a potential 1 year in jail. However, if a person has two or more similar convictions on his or her record, that person can be charged with a state jail felony and face 2 years in state jail.

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