Being arrested in Texas can be terrifying—but you don’t have to face it alone. If you've been charged with burglary of a habitation, you're facing a serious felony defined under Texas Penal Code § 30.02. This charge isn't just about stealing something; it's about unlawfully entering someone's home with the intent to commit a felony, theft, or assault. The accusation alone can feel crushing, but it's critical to remember one thing: an accusation is not a conviction.
This guide is here to give you clear, plain-English explanations of the law, your rights, and the road ahead.
Understanding Burglary of Habitation Charges
When the charge is something as heavy as burglary of a habitation, your mind is probably racing with questions about your future, your freedom, and your family. The moment you are charged, the prosecution starts building its case against you. Their job is to prove every single element of the crime beyond a reasonable doubt. Our job is to protect your rights and challenge their case at every turn.
Why This Charge Is So Serious
Texas law treats the act of entering someone's home unlawfully with extreme severity. Your home is your sanctuary, and the law reflects that by making this offense a second-degree felony. This charge carries a potential prison sentence of two to 20 years and fines up to $10,000.
This offense is a persistent issue across the country. National statistics show that from 2003 to 2007, an average of 3.7 million burglaries occurred each year, with a staggering one million of those incidents happening while a household member was present. You can read more about these national crime statistics from the Bureau of Justice Statistics. The gravity of these situations is exactly why Texas law is so strict.
What This Means for You
Facing this charge means you need to act quickly to protect yourself. The decisions you make in the hours and days following an arrest can have a massive impact on the outcome of your case.
The most critical element prosecutors must prove is your intent at the moment of entry. Your state of mind is often the weakest point in their case and the strongest foundation for your defense.
Understanding your rights and the legal process is your first line of defense. Knowing what to expect can reduce anxiety and empower you to make informed choices. Partnering with a trusted legal advocate is equally important. To learn what to look for, check out our guide on how to choose a criminal defense attorney who will fight for your future.
Deconstructing the Burglary of Habitation Charge
When the State of Texas charges you with a crime, the burden of proof is entirely on the prosecution. To secure a conviction for burglary of habitation, a prosecutor must prove three critical elements beyond a reasonable doubt. Just placing you at the scene isn't enough.
Think of these elements like the legs of a stool. If your defense attorney can knock out even one, the prosecution's entire case can fall apart.
The First Element: Entry
First, the prosecutor has to prove an "entry" occurred. This sounds simple, but the legal definition is broader than most people think. You don’t have to kick down a door or shatter a window for your actions to be considered an entry.
Under the Texas Penal Code, an entry is any intrusion of your body—or even an object you’re holding—into the home.
This could mean:
- Pushing open an unlocked door and stepping inside.
- Reaching your hand through an open window.
- Using a pole or hook to pull property out of a house.
If any part of you or something you’re controlling crosses the threshold without permission, the legal standard for entry has been met. This low bar often makes it a relatively easy element for prosecutors to prove.
The Second Element: Habitation
Next, the prosecution must prove the location was a "habitation." This is what elevates the crime to a serious felony. Burglarizing a store or a detached shed is a different crime with lesser penalties.
So, what’s a habitation? Texas law defines it as a structure or vehicle adapted for people to sleep in overnight.
This includes:
- A house, apartment, or condo.
- A mobile home or an RV where someone lives.
- An attached garage that connects directly to the living space.
It can even include a hotel room or a tent if it’s being used for lodging. The key isn't ownership, but whether it’s designed for people to sleep in. While home burglaries have historically been common, recent data shows a shift. Between 2019 and 2022, the share of residential burglaries dropped to 53%, the lowest it has been in decades. You can learn more about these burglary trends from the Council on Criminal Justice.
The Third Element: Intent
The final, and often most critical, element is "intent." This is where many cases are won or lost. The prosecutor must prove that at the very moment of entry, you had the specific intent to commit a felony, theft, or an assault inside.
Your state of mind is the cornerstone of this charge. It doesn't matter if you actually stole anything or assaulted someone. The crime of burglary of habitation is complete the second you enter with the unlawful intention to do so.
This is a massive hurdle for the prosecution because they can't read your mind. They must use circumstantial evidence—like possessing burglary tools, wearing a mask, or having no legitimate reason to be there—to convince a jury what you were thinking. This is also where a strong criminal defense attorney can create serious doubt.
Many people confuse this charge with robbery. As you navigate your case, it's vital to understand the difference between robbery and burglary.
Understanding the Penalties for a Conviction
A conviction for burglary of habitation is one of the most serious outcomes you can face in the Texas criminal justice system. The penalties are severe and can permanently alter your life, so understanding what’s at stake is the first step toward building a powerful defense.
In Texas, burglary of a habitation is typically a second-degree felony.
If you're convicted, you could be facing:
- Prison Time: Anywhere from two to 20 years in a Texas state prison.
- Fines: A fine of up to $10,000.
These penalties are harsh, but under certain circumstances, the charge can be elevated, which dramatically raises the stakes.
When the Charge Becomes a First-Degree Felony
The charge can be enhanced from a second-degree to a first-degree felony if the prosecution alleges you entered the home intending to commit another felony besides theft.
For instance, if the state claims you went inside to commit a crime like sexual assault, aggravated assault, or arson, the potential punishment skyrockets. A conviction for a first-degree felony carries a potential sentence of five to 99 years—or even life—in prison, plus the same $10,000 fine. To better understand these classifications, you can learn more about the different levels of felonies in Texas.
Here’s how the penalties stack up side-by-side.
Texas Burglary Penalties Comparison
| Felony Degree | Potential Prison Time | Maximum Fine |
|---|---|---|
| Second-Degree | 2 to 20 years | $10,000 |
| First-Degree | 5 to 99 years (or life) | $10,000 |
This table makes it clear just how much the "intent" behind the alleged entry matters. The difference isn't just a few years; it could be the rest of your life.
A felony conviction is more than just prison time and fines. It creates a permanent criminal record that can close doors to employment, housing, professional licenses, and even your right to own a firearm.
The Lasting Impact of a Felony Conviction
Even after you’ve served your time, a felony conviction follows you. It can make it nearly impossible to pass a background check, which is now standard for most good jobs and rental applications.
This single event can limit your opportunities and define your future in ways you never imagined. The penalties in Texas are clearly defined and severe. You can discover more insights about these penalties from Neal Davis Law. Facing consequences this serious demands an equally serious and strategic legal defense to protect your freedom.
How to Build a Defense Against Your Charge
An arrest can feel like the end of the story, but it’s just the beginning. The prosecution carries the heavy burden of proof, and a skilled criminal defense attorney has powerful strategies to protect your freedom.
Building a strong defense means carefully examining every piece of evidence, challenging the prosecution's narrative, and asserting your constitutional rights at every turn.
Questioning the Element of Intent
Often, the most vulnerable part of the prosecution's case is proving intent. They must convince a jury what was going through your mind at the exact moment of entry. A powerful defense strategy is to argue a lack of criminal intent.
Here are a few real-world examples:
- Seeking Emergency Help: Perhaps you were in a car accident nearby and entered the closest home looking for help.
- Mistaken Belief of Danger: You might have genuinely thought you heard someone inside calling for help and went in to investigate.
- Intoxication: While not a complete excuse, it’s sometimes possible to argue that you were too intoxicated to form the specific intent required for the crime.
By providing a reasonable, alternative explanation for your presence, a defense attorney can create the doubt needed to defeat the charge.
Arguing You Had Permission to Be There
Another solid defense is consent, which directly attacks the "unlawful entry" element. If you had permission—or reasonably believed you had permission—to be on the property, then no burglary occurred.
The legal idea of consent can be complex. It might cover situations where you had prior permission to enter, were a regular guest, or were led to believe by a resident that you were welcome.
For this defense to succeed, your attorney will gather evidence like text messages, emails, or witness testimony to back your claim. Successfully challenging the idea that your entry was unlawful can completely undermine the prosecution's case.
Challenging the Evidence Itself
Finally, a crucial part of any defense is putting the state's evidence under a microscope. Just because the police have evidence doesn't mean it's accurate, reliable, or legally obtained.
Areas for challenging evidence include:
- Illegal Search and Seizure: The Fourth Amendment protects you from unreasonable searches. If police found evidence by searching your property without a valid warrant or probable cause, that evidence can be suppressed—meaning the jury never sees it.
- Mistaken Identity: Eyewitness testimony is notoriously unreliable. Bad lighting or a brief glance can easily lead to a witness pointing at the wrong person.
- Flawed Forensic Evidence: Fingerprints and DNA are not foolproof. Contamination or human error can produce incorrect results that can be disputed in court.
By meticulously analyzing police reports, witness statements, and forensic data, your defense team can find the weaknesses that can lead to reduced charges or a full dismissal.
Navigating the Texas Criminal Court Process
Facing a felony charge throws you into the Texas criminal justice system, which can feel confusing and intimidating. Knowing what’s coming can help you make smart decisions. Here is a step-by-step guide on what happens after an arrest.
Arraignment and Bail Hearing
Shortly after an arrest and booking, typically within 48 hours, you'll have your first court appearance, called an arraignment. The judge will read the charges against you, inform you of your constitutional rights, and ask for your initial plea. At this stage, the plea is almost always "not guilty," which keeps all your legal options open.
The judge also sets bail. A judge will consider the seriousness of the charge, your criminal history, and your ties to the community. A skilled attorney can argue for a reasonable bail amount or even for your release on a personal recognizance (PR) bond, which doesn't require payment.
Grand Jury Indictment
Because burglary of habitation is a felony, your case is presented to a grand jury. This is a group of citizens who hear the prosecutor's evidence and decide if there's enough probable cause to formally charge you with an indictment. If they don't find enough evidence, they "no-bill" the case, and the charges are dropped.
Discovery and Pre-Trial Motions
Once indicted, the case enters the discovery phase. Your lawyer receives all the prosecution's evidence—police reports, witness statements, lab results, and videos. Based on this evidence, we may file pre-trial motions, such as a "motion to suppress evidence" if your Fourth Amendment rights were violated during a search.
Plea Bargaining and Trial
Most criminal cases are resolved through plea bargaining, where your attorney and the prosecutor negotiate a potential agreement for a lesser charge or a lighter sentence. A good plea bargain can be a strategic way to avoid the risk of a trial.
A plea agreement is a life-altering decision. Your attorney’s job is to give you a clear-eyed view of your case's strengths and weaknesses so you can decide if taking a deal or going to trial is the right move for you.
If no agreement is reached, your case proceeds to trial. You have the right to a jury trial, where 12 people from your community must unanimously agree that you are guilty "beyond a reasonable doubt" to convict you. This is where your defense team will fight for your freedom.
Your Future After a Felony Conviction
Thinking about life after a potential conviction is difficult, but it’s essential for making smart decisions now. Unfortunately, most serious felony convictions in Texas, including burglary of habitation, are not eligible for expunction or record sealing. This means the charge will likely stay on your public criminal record forever.
Facing Life with a Felony Record
Living with a felony conviction creates lifelong roadblocks that can affect every part of your life.
A permanent record can make it incredibly difficult to:
- Find Stable Employment: Most employers run background checks, and a felony can lead to automatic rejection.
- Secure Safe Housing: Landlords often reject rental applications from anyone with a felony record.
- Own a Firearm: A felony conviction results in a lifetime ban on possessing firearms under both federal and Texas law.
- Vote: Your voting rights are suspended while you are incarcerated, on parole, or on probation for a felony.
These consequences are severe and lasting, which is why fighting the charge from day one is so critical.
Is There Any Hope for Post-Conviction Relief?
While options for clearing your record are very limited, it doesn't mean every door is closed forever. Texas does offer paths for post-conviction relief, but they are difficult.
The Texas pardon process is a potential route for restoring rights, but it is an uphill battle that typically requires years of law-abiding citizenship after your sentence is fully served.
A pardon doesn't erase the conviction, but it can restore some of the civil rights you lost. The process is lengthy and requires a recommendation from the Texas Board of Pardons and Paroles before the Governor can consider it. It’s a small glimmer of hope we can discuss as part of a long-term strategy.
Common Questions About Burglary Charges in Texas
When you're facing a burglary charge, your mind is probably racing. To help provide clarity, here are answers to a few common questions.
What’s the Difference Between Burglary and Robbery?
This is one of the most frequent points of confusion. In the eyes of Texas law, they are completely different crimes. The key difference is that burglary is a property crime, while robbery is a crime against a person.
- Burglary, as defined in Texas Penal Code § 30.02, is about unlawfully entering a building with the intent to commit a crime inside.
- Robbery involves taking property directly from a person by force, threats, or causing them injury. The face-to-face confrontation is what makes it robbery.
Can I be Charged if I Didn’t Steal Anything?
Yes. This is a critical point. The law doesn't care whether a theft was actually completed.
The heart of a burglary charge is criminal intent. All the prosecutor has to prove is that you entered the home planning to commit a theft, assault, or another felony. The crime is complete the second you cross the threshold with that illegal purpose.
This is why a good defense will often focus on challenging the prosecution's evidence of your intent.
What if I Thought I Had Permission to Be There?
Claiming you had permission—or consent—can be a powerful defense. If you were invited in or had a solid reason to believe you were allowed to be there, then your entry wasn't "unlawful." Without an unlawful entry, the burglary charge falls apart. However, the permission must be valid and come from someone with the authority to give it. Your lawyer’s job is to build a strong case showing your belief that you had consent was reasonable.
What’s the First Thing I Should Do if I’m Arrested?
Your top priority is to protect your rights.
- Invoke Your Right to Remain Silent: Politely but firmly tell the officers you are exercising your right to remain silent and will not answer any questions.
- Ask for a Lawyer Immediately: State clearly that you want an attorney and will not say another word until your lawyer is present.
Do not try to explain your side of the story to the police. Anything you say can and will be used against you. Your first and most important call should be to a skilled Texas criminal defense attorney.
If you’ve been charged with a crime in Texas, call The Law Office of Bryan Fagan, PLLC for a free and confidential consultation. Our defense team is ready to protect your rights.
