How to Beat a Burglary Charge

Burglary: Texas Penal Code § 30.02

Under Texas Penal Code § 30.02, a person commitsburglary when they, without the consent of the owner, enter a habitation (i.e. any structure or vehicle that is designed or has been adapted for use as overnight accommodation for a person) or building that is not open to the public in an attempt to commit a felony, theft, or assault or:

  • remain concealed in a building or habitation with the intent to commit a felony, theft, or assault, or
  • enter a building or habitation and commit or attempt to commit a felony, theft, or assault.

Examples of situations where a person can be charged with burglary include:

  • Entering a railway car to commit theft
  • Entering someone’s vehicle to assault them or steal their valuables
  • Hiding inside a retail store or building after hours to commit theft
  • Staying in a home after your welcome expires with the intent to steal or commit an assault

Defenses to Texas Burglary (& Theft) Charges

To secure a conviction in a burglary case, the prosecution must prove that the accused entered the structure or habitation without permission and with the intent to commit a crime inside the building. If they cannot prove both elements, their case may fall through, or the charges may be diminished.

For instance, if Bob stays in a bookstore after hours to speak with a visiting author, he can be charged with criminal trespassing if all he did was stay to meet the author or request an autograph. However, if Bob stayed after hours to harass or assault the visiting author, that is burglary.

To establish intent to commit a crime, the prosecution may use a confession or other evidence (i.e. text messages, online search history, circumstantial evidence, etc.). In developing a sound legal defense, your attorney may:

  • Question the validity of the evidence.
  • Investigate police conduct during searches and interviews.
  • Gather evidence that proves there was a lack of intent or that no entry was made.
  • Work to get prosecutorial evidence dismissed or suppressed.

Common defense strategies that may be applied to your case (depending on the evidence being used against you and other case-specifics) include:

  • Abandonment. If the accused intended to commit or attempt to commit burglary but withdrew from participating in the crime, the defense can seek to get evidence that proves they abandoned the act.
  • Alibi evidence. A defense attorney may use photographs, video evidence, GPS records, or witness testimonies to prove that the defendant has an alibi.
  • False accusation. If the supposed victim named their attacker, they may have falsely accused a person if they are seeking revenge or misidentified the person.
  • Mistaken identity. If your physical description, clothing, vehicle, or other information matched that of the actual perpetrator, an eyewitness or the supposed victim may mistakenly identify you in a lineup or photograph.
  • Innocence. The prosecution must prove both elements of the crime beyond a reasonable doubt. The defense can poke holes in the prosecution’s case and prove that you are innocent of the charges.
  • Police misconduct. The police must adhere to the laws and conduct themselves properly during the investigation. They should not intimidate witnesses, plant or mishandle evidence, use unnecessary force, lie in their reports, or obtain evidence without a warrant or probable cause. Once you retain an attorney, you should tell them how you were treated and what was done any time the police were involved in your case.

Is Burglary a Misdemeanor in Texas?

The only time in which burglary may be deemed a misdemeanor is when the burglary involves a coin collection or coin-operated machine. If a person breaks into a coin collection contrivance, receptacle, or equipment used for lawful amusement or services without the consent of the owner, they can be charged with a Class A misdemeanor. However, burglary is most commonly considered a:

  • State felony, in cases where the act was committed in a building that is not considered a habitation.
  • Second-degree felony, in cases where the act was committed in a habitation.
  • Third-degree felony, in cases where the act was committed in a commercial building in which a controlled substance is stored (i.e. a hospital, pharmacy, nursing home, clinic, etc.) and the alleged offender intended to steal the controlled substance.
  • First-degree felony, in cases where the act was committed in a habitation and the alleged offender intended to commit, attempted to commit, or committed a felony (other than felony theft).

Consult with Our Experienced Attorneys

At The Clark Law Firm, our attorneys have over 35 years of collective experience. We understand how scary it can be to face an investigation or be charged with burglary as you can face hefty fines, potential prison time, and a permanent criminal record. If you or a loved one are facing burglary charges, you can trust our firm to help you:

  • Understand your legal rights and options
  • Develop a solid, personalized case defense
  • Examine and question the prosecution’s evidence and arguments
  • Work to get the charges dismissed or diminished

If you or a loved one have been charged with burglary, contact The Clark Law Firm at (817) 435-4970 or complete our online contact form today.


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