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Family and Criminal Law Blog

Wednesday, July 29, 2020

What Constitutes Burglary in Texas?

Burglary is a serious crime in Texas. Nonetheless, a skilled criminal defense attorney may be able to get the charges dismissed, help you plead guilty to a lesser offense like criminal trespass (which is a misdemeanor rather than a felony) or win your case at trial. At Navarrete & Schwartz, P.C. in Southwest Texas, we will always take your side if you have been charged with burglary of any kind; even more important, we have a track record of successfully defending burglary cases throughout the state.

What is the definition of burglary?

Burglary is defined as entering someone else’s property without permission with the intent to commit a crime. Let’s separate the charge of burglary into its two basic elements:

1. Entering another’s property without permission

Although “property” may vary somewhat from state to state, it generally includes:

  • Residence
  • Garage or shed
  • Car or other vehicle
  • Storage facility
  • Business or shop

While open areas, such as a person’s backyard or beachfront are not included in the definition, breaking a window to steal an item does, even if you reach in and your whole body never enters the premises. In Texas, as in many other states, entering an inhabited home to commit a crime is always a felony.

2. Having the intent to commit a crime.

While it is always harder to prove intent than action, if you are found with burglary tools or a container for loot, such items are most often presumed to be evidence of a plan to steal. Depending on your past criminal history and other objects in your possession -- e.g. a weapon, inflammatory materials, means of restraint -- the prosecution may try to prove your intent to commit another felony, such as robbery, arson, vandalism, assault, rape, kidnap or homicide.

It is important to be aware that even if you enter premises not your own through an open door (or window) with the intent to commit a crime, you may be charged with burglary, as long as you did not have the owner’s permission to enter. This holds true whether or not you manage to complete the crime you intended. Of course, no one knows what’s in your mind, so without substantive evidence of intent, a sharp burglary defense lawyer is likely to be able to get your case dismissed, or the charges against you reduced.

When is burglary a less serious crime?

Unless you are found to be illegally on someone else’s property, you cannot be charged with burglary, though you may well be charged with another crime. If, for example, you steal a necklace while shopping, you cannot be charged with burglary, since you were allowed to be in the store at the time of the action. You will likely be charged with shoplifting, petit or grand larceny depending on the value of the necklace.

Likewise, if you are proven to have impulsively stolen a neighbor’s necklace while in her home visiting, you can be charged with theft, but not burglary, since you were an invited guest. In a similar vein, if you swipe office supplies during work hours, you have committed theft, not burglary.

If you are caught on a security camera walking into a home but not stealing anything, you will probably be charged with criminal trespass, unless the prosecution can prove that you were intent on stealing although you didn’t find the object(s) you were looking for. If you are caught breaking a window and entering a home but not committing or seemingly prepared to commit, another crime, you will likely be charged with breaking and entering.

Both criminal trespass and breaking and entering are misdemeanors. Though still crimes with consequences, they do not result in as severe penalties as burglary.

When is burglary a more serious crime?

On the other hand, there are several actions on the part of the defendant at the time of the crime that can result in burglary being charged as a more serious offense or in the defendant being charged with additional crimes. These include:

  • Having entered an inhabited home (home invasion)
  • Being in possession of a weapon
  • Being in possession of burglary tools or items intended to restrain another person
  • Being in possession of illegal drugs
  • Vandalizing the property during or after the burglary
  • Breaking into a railroad car
  • Using fraudulent I.D. to pass through a guarded entry way
  • Threatening a guard or inhabitant to gain admission

Incidentally, it is important to note that a vehicle like a trailer or recreational vehicle that can be used as a residence is considered a home for legal purposes.

Other Types of Burglary

There are also some types of crime you may not be aware are considered burglary, such as:

Overstaying your welcome

If, with the intention of committing a crime, you refuse to leave the premises of a home or store into which you were originally invited at the owner or manager’s request, you may be considered a burglar. In the same way, if you hide in a closet or bathroom and the host or building security personnel believe you have left, you can still be charged with a state jail felony in Texas. In other words, the fact that you were originally allowed on the premises does not give you permission to remain there indefinitely.

Breaking into a Piece of Equipment that You Don’t Own

Breaking into a coin-operated machine, whether an ATM or a coin-operated candy machine, is a form of burglary. It should be noted that whether or not an individual actually manages to obtain money from the device, the crime can still be charged.

If You Have Been Charged with Burglary, You Need Experienced Legal Defense

No matter what the particular circumstances of your arrest, be proactive. The possibility of coming out of such a legal entanglement unscathed, or at least with less negative impact on your future, is much greater if you have the protection of the excellent legal counsel of Navarrete & Schwartz.


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Navarrete & Schwartz, P.C. is located in Midland, Texas and serves the surrounding cities and counties, including: Odessa in Ector County, Andrews County, Martin County, Howard County, Winkler County and Crane County.



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