Burglary of Habitation or Criminal Trespass?

Burglary can be an extremely serious (and confusing) crime in the state of Texas. Although burglary is most often connected with theft, illicit entry into a building to commit assault or any felony-level offense is also considered burglary under state law.

Texans facing charges of trespass, burglary, or burglary of habitation often don’t know the differences between them:

• Trespass – Entering or remaining on another person’s property without their consent, after receiving notice that the entry was forbidden or failing to follow a request to leave.
• Burglary – Unlawfully entering a habitation or building with the intent of committing a felony, theft, or assault, or concealing themselves in a habitation or building with the intent of committing a felony, theft, or assault.
• Burglary of habitation – Unlawfully entering a habitation or building not open to the public with the intent of committing a felony, theft, or assault.

Although the number of burglaries in Texas dropped nearly four percent between 2020 and 2019, the state still records a relatively high number of burglary crimes due to the most serious burglary charge, burglary of habitation.

What is burglary of habitation?

Burglary of habitation (also known as “residential burglary” or “home invasion”) happens when someone enters a home without permission from the property owner. Texas law defines habitation as any structure or vehicle adapted for overnight accommodation of one or more people. This might include a house trailer, recreational vehicle, and even a car in which someone is living.

Burglary of habitation applies to all residential properties, including primary and secondary homes, occupied or unoccupied. Perhaps the most unique aspect of burglary of habitation is that a person doesn’t have to commit burglary to be charged with the crime. Rather, they only need to break and enter a home with the intention of committing theft or some other felony.

A person can be charged with burglary of habitation whether they are engaged in theft, e.g., if someone enters a home without the permission of the owner to check it out for a later burglary, they are in violation of the burglary of habitation law and can be charged even though the theft did not take place. However, the prosecutor must prove that burglary of habitation took place so that that the accused could commit a second felony – assault, theft, or some other felony.

To successfully prosecute a person for burglary of habitation, the state must prove that:

• The offender did not have permission to be on the property.
• The offender had the intent to commit a crime.

If these two elements cannot be proven, the charge could be lowered to misdemeanor criminal trespass.

Burglary of habitation vs. criminal trespass – what’s the difference?

In Texas, a criminal trespass occurs when a person knowingly enters or remains on private property (land or a structure) without requesting or obtaining permission from the property owner. However, unlike burglary of habitation, trespass occurs with or without the intent to commit further crime.

Another major difference between burglary of habitation and criminal trespass is the classification each receives in Texas criminal code:

• Burglary of habitation is a second-degree felony punishable by a prison sentence of greater than two but not more than 20 years and a fine of as much as $10,000. If the event took place on commercial property, it will be charged as a state jail felony, the lowest level of felony in the state, punishable by 180 days to two years in state jail and a fine of up to $10,000. If the defendant was previously convicted of a felony or used a deadly weapon to commit burglary of habitation, the judge might elevate the charge to a first degree felony.
• Criminal trespass is a class B misdemeanor punishable by a jail term of up to 180 days and a fine up to $2,000. If the trespass occurred near protected freshwater areas or on agricultural land and the offender was apprehended within 100 feet of the boundary of the property, it may be downgraded to a class C misdemeanor punishable by a fine of $500 or less.

In Texas, you cannot be charged with burglary if you’re merely trespassing without ill intent. For example, if someone breaks into a building to gain shelter from a storm and there was no evidence that the person had ill intent, they likely would not be charged with burglary of habitation, but could be convicted of the lesser charge of criminal trespass. However, invading someone’s property with the goal of stealing is a second-degree felony, and if the intention of the offender was to assault or rape someone on the premises, the charge could be upgraded to a first-degree felony.

Defenses to Killeen burglary by habitation charges

Our criminal defense attorneys can employ a variety of potential defenses to someone charged with burglary of habitation. These include:

• The defendant may argue that they did have the owner’s consent to be on the premises, although the owner must have the capacity to consent and the consent must have been provided voluntarily.
• In this argument, the offender states that they committed the burglary while under threat of severe physical harm.
• Even if the crime occurred, if evidence does not exist to prove that it was the defendant who committed the crime, the defense of innocence could be used.
• If the offender was under the influence of alcohol or drugs to the degree that intent could not be formed, intoxication could be a defense, even if the defendant voluntarily became intoxicated.

If you are facing a charge of burglary by habitation, you need competent legal representation. The criminal defense attorneys at Mary Beth Harrell Criminal Defense and DWI Lawyers has decades of experience defending charges of burglary of habitation, and we will build a solid case for you to help you get the charges reduced or dismissed. If you are looking for effective criminal counsel in Central Texas, call 254-680-4655 or fill out our contact form to schedule a personal consultation today. We represent clients in Killeen, Copperas Cove, Temple, and Belmont.