Texas burglary under Penal Code § 30.02 has three tiers: burglary of a building (state jail felony, 180 days-2 years), burglary of a vehicle (Class A misdemeanor, § 30.04), and burglary of a habitation (second-degree felony, 2-20 years, or first-degree if with intent to commit felony other than theft). The defendant need not actually steal — intent at entry is sufficient.
Texas treats burglary differently depending on what was entered. Burglary of a habitation carries decades of potential prison time, while burglary of a building or vehicle carries lower penalties. Here is how § 30.02 works.
The Three Types of Texas Burglary
Burglary of a Habitation (§ 30.02(c)(2))
Entering a residence without effective consent with intent to commit felony, theft, or assault. Second-degree felony — 2 to 20 years TDCJ. Elevated to first-degree (5 to 99 years) when intent is to commit felony other than felony theft.
Burglary of a Building (§ 30.02(c)(1))
Entering a non-residential building without consent with same intent. State jail felony — 180 days to 2 years.
Burglary of a Vehicle (§ 30.04)
Breaking into or entering any part of a vehicle with intent to commit felony or theft. Class A misdemeanor; third-degree felony for third or subsequent offense.
What Counts as a "Habitation"?
Penal Code § 30.01(1) defines habitation as a structure or vehicle adapted for overnight accommodation. This includes:
- Houses, apartments, condominiums
- Hotel rooms (while occupied)
- Motor homes and RVs used as residences
- Detached garages connected to or near residences (in some cases)
- Vacation homes, even if unoccupied
"Enter" Broadly Defined
Under § 30.02(b), “enter” means:
- Intrude any part of the body, OR
- Intrude any physical object connected with the body
Reaching through a window, using a stick to reach inside, or even leaning through a doorway can satisfy the entry element.
Intent at Entry — Critical Element
The State must prove that at the moment of entry, the defendant intended to commit a felony, theft, or assault. Evidence of intent includes:
- Tools of theft (pry bars, gloves, flashlights)
- Stolen items found on defendant
- Statements indicating purpose
- Time of day and circumstances
- Prior scouting or reconnaissance
- Disguises or mask
Intent formed after entry — such as a person who enters innocently and then decides to take property — may not qualify as burglary, though other charges (theft, trespass) apply.
Penalties
Burglary of Habitation
- With intent to commit theft: Second-degree felony (2-20 years)
- With intent to commit other felony: First-degree felony (5-99 years or life)
- Of habitation with victim present: Can enhance further
Burglary of Building
State jail felony — 180 days to 2 years state jail
Burglary of Vehicle
- Class A misdemeanor for first and second offenses
- Third-degree felony for third or subsequent
Common Defense Strategies
Lack of Intent at Entry
The defendant may have entered for a different reason — shelter, intoxication, mistaken belief of consent — with intent to commit theft formed after entry.
Consent Defense
If the defendant had actual or apparent consent, the burglary element fails. This is particularly common in cases involving former spouses, roommates, and business employees.
Identity Challenges
Eyewitness identification in burglary cases is often unreliable. Fingerprint and DNA evidence can be challenged.
Motion to Suppress
Many burglary cases involve searches of the defendant or a vehicle where stolen items were found. Fourth Amendment challenges can suppress the key evidence.
Mental State
Voluntary intoxication is not a complete defense but can negate specific intent. Severe mental illness can support competency and insanity defenses.
Frequently Asked Questions
What's the difference between burglary and trespass?
Burglary requires intent to commit felony/theft/assault at entry. Trespass (§ 30.05) is just unauthorized entry without the specific intent. Trespass is typically a misdemeanor.
Can I be charged with burglary if I don't steal anything?
Yes. Intent to commit theft at entry is enough — actual theft is not required.
What makes a vehicle burglary a felony?
Two or more prior convictions for vehicle burglary elevate the charge to a third-degree felony under § 30.04(d).
Is breaking a window burglary?
Breaking a window without entering is criminal mischief, not burglary. Burglary requires entry. However, partial entry (a hand, tool, or body part) is sufficient.
Can my roommate commit burglary against me?
If the roommate has consent to be in the residence, burglary generally doesn't apply. However, entry into a roommate's locked private room with intent to steal could qualify.
Speak With a Frisco Criminal Defense Attorney
If you or a loved one is facing burglary charges in Frisco, Collin County, or anywhere in the Dallas-Fort Worth metroplex, the time to act is now. L and L Law Group attorneys are available 24 hours a day, 7 days a week. Call (214) 466-1398 for a free, confidential consultation, or submit your case online and a licensed attorney will contact you directly.
This article is general information, not legal advice. Texas criminal law is complex and fact-specific — please consult a licensed Texas attorney about your particular situation. Past results do not guarantee future outcomes.