What Is Burglary Under Texas Penal Code §30.02?
Burglary is entering a habitation or building without the effective consent of the owner with intent to commit a felony, theft, or assault, or entering and committing or attempting to commit those offenses, under Tex. Penal Code §30.02(a). The statute covers three distinct entry situations: (1) entering without consent with intent to commit a crime; (2) remaining concealed with intent to commit a crime; and (3) entering and actually committing or attempting to commit a felony, theft, or assault. Texas courts define "entry" broadly — any body part or object held by the person crossing the threshold constitutes entry. A hand reaching through a window, a flashlight inserted into a door frame, or a foot crossing a doorway are all sufficient for entry under Texas law. Burglary of a habitation under §30.02(c)(2) is a second-degree felony (2–20 years, up to $10,000 fine). If the defendant enters a habitation and commits or attempts a felony other than theft, the charge is a first-degree felony (5–99 years or life, up to $10,000 fine). A burglary lawyer Houston starts every case by testing whether all three of these elements can actually be proven.
| Offense | Classification | Prison Range | Max Fine |
|---|---|---|---|
| Burglary of coin-operated machine §30.03 | Class A Misdemeanor | Up to 1 year | $4,000 |
| Burglary of building (non-habitation) §30.02(a)(1) | State Jail Felony | 180 days – 2 years | $10,000 |
| Burglary of a pharmacy or facility storing controlled substances §30.02(c-1) | 3rd Degree Felony | 2 – 10 years | $10,000 |
| Burglary of habitation — intent to commit theft/assault §30.02(c)(2) | 2nd Degree Felony | 2 – 20 years | $10,000 |
| Burglary of habitation — commits/attempts felony inside §30.02(d) | 1st Degree Felony | 5 – 99 years or life | $10,000 |
A separate enhancement raises what would otherwise be a state jail felony to a 3rd-degree felony whenever the building entered is one that generally stores controlled substances — a pharmacy, clinic, hospital, nursing facility, or similar warehouse — and the intent was to steal those substances. This enhancement applies regardless of whether any controlled substance was actually taken, and it exists specifically to address pharmacy break-ins targeting prescription medication. Herman evaluates whether the state can actually prove the building qualifies as a covered facility and whether the specific intent to target a controlled substance — rather than general theft — can be established.
A second, separate enhancement applies when burglary is prosecuted as part of a coordinated group rather than a single incident. Under Penal Code §71.02, Engaging in Organized Criminal Activity, committing burglary with the intent to establish, maintain, or participate in a combination or criminal street gang raises the punishment one full category above the underlying burglary charge — a state jail felony burglary becomes a third-degree felony, for example. This enhancement is common in multi-defendant burglary-ring prosecutions, where Harris County pursues the organized-activity charge in addition to, not instead of, the individual burglary counts. Herman scrutinizes whether the state can actually prove a genuine "combination" existed, rather than simply multiple people present at the same scene, before conceding this enhancement applies.
What Are the Key Elements the State Must Prove for a Burglary Conviction?
The state must prove every element of burglary beyond a reasonable doubt: (1) the defendant entered the structure; (2) without the effective consent of the owner; and (3) with intent to commit a felony, theft, or assault at the time of entry. Intent at the moment of entry is the most contested element in most burglary cases. The state cannot prove intent to steal simply because the defendant was found inside — they must establish the criminal purpose existed at the precise moment of entry. Remaining on premises after being asked to leave is criminal trespass, not burglary, unless criminal intent is also proven. Consent is also litigable — if the defendant had permission to enter, even limited permission, the consent element may be contested. The owner's property status matters for charge level: a "habitation" is any structure adapted for overnight accommodation of persons; a "building" is any enclosed structure. Misclassification of a structure can determine whether the charge is state jail felony or second-degree felony. A burglary lawyer Houston knows intent at entry is almost always the hardest element for the state to prove beyond doubt.
How Does Herman Martinez Defend Burglary Charges in Houston?
Herman Martinez defends burglary charges by attacking three points: entry, consent, and intent. Entry is litigable when access was through an unlocked door or open window — some cases turn on whether crossing an open threshold constitutes entry without consent. Consent is contested when the defendant had any prior authorization to be on the property. Intent at the moment of entry is frequently unprovable from circumstantial evidence alone. Herman is board-certified in Criminal Law by the Texas Board of Legal Specialization (fewer than 2% of Texas attorneys) and a former Harris County Chief Prosecutor who prosecuted burglary cases. He evaluates every burglary case for charge reduction from second-degree to state jail felony when the structure was not a habitation, and defends against first-degree enhancements when the predicate felony inside is contested. A burglary lawyer Houston with prosecutorial experience evaluates entry, consent, and intent as three independent points of attack.
Burglary requires criminal intent to exist at the moment of entry — not formed afterward. Proof that someone entered a home and later decided to take something is not sufficient for burglary. Herman challenges circumstantial intent evidence and argues alternative explanations for entry that do not involve criminal purpose.
If the owner — or someone authorized to grant entry — gave the defendant permission to enter, there is no burglary. This includes implied consent from prior relationships, family members who allowed entry, or roommates with partial authority. Herman investigates every prior relationship between the defendant and property owner to establish a consent defense.
Whether the structure is a "habitation" or a "building" determines whether the charge is a second-degree felony or a state jail felony. Herman challenges habitation classifications for structures not adapted for overnight accommodation — garages, sheds, commercial spaces — to reduce the charge tier and associated punishment range significantly. A burglary lawyer Houston fights the habitation classification whenever the structure's true use is genuinely in dispute.
Burglary is frequently confused with robbery and shoplifting, but the elements are not interchangeable. Burglary is about unlawful entry with intent to commit a crime — it can be charged even when nothing is ultimately taken and no person is ever confronted. Robbery, by contrast, requires an actual theft plus force or the threat of force directed at a person; there is no entry element at all. And a low-value taking from an open retail store, with no unlawful entry into a habitation or building, is shoplifting, not burglary. See the theft crimes overview for how Texas classifies and punishes all four charges side by side. A burglary lawyer Houston clarifies which of these charges the facts actually support before any plea negotiation begins.
Frequently Asked Questions — Burglary Defense
Below are the most frequently asked questions about burglary charges in Harris County — covering charge levels, entry definitions, consent, and defense strategies.
Burglary of a habitation under §30.02(c)(2) is a second-degree felony (2–20 years). A habitation is any structure adapted for overnight accommodation. Burglary of a building — a commercial structure, garage, or enclosed non-residential space — is a state jail felony (180 days to 2 years). The classification of the structure is a critical defense issue Herman contests in every case. A burglary lawyer Houston treats this classification fight as one of the most consequential moves in the entire case.
Yes. Burglary under §30.02 does not require forced entry. Entering through an unlocked door, an open window, or any other opening without the owner's consent satisfies the entry element. The key legal issues are whether the owner's effective consent was absent, and whether the defendant intended to commit a crime at the moment of entry — not how they got in.
Effective consent means voluntary authorization from the owner or someone legally entitled to grant it. Consent induced by force, threat, deception, or from a person incapable of consenting is not effective consent. When the defendant had prior authorization to be on the property — from a landlord, family member, or employer — Herman argues that effective consent was present, defeating the burglary charge entirely. A burglary lawyer Houston investigates every relationship between the parties before accepting the state's account of the entry.
Burglary of a vehicle under Tex. Penal Code §30.04 is a Class A misdemeanor (up to 1 year, $4,000 fine). It is a felony only when the vehicle is a rail car. Burglary of a motor vehicle requires entering or breaking into a vehicle without consent to commit a felony or theft inside. Herman defends these charges by challenging both the entry element and the intent to commit a crime inside.
Yes — burglary charges are frequently reduced through plea negotiations or at trial. A second-degree burglary of habitation can be reduced to state jail felony criminal trespass or theft if the entry or intent element is contested. Herman evaluates every case for downward plea options that eliminate the felony record or reduce prison exposure significantly below the original charge range. A burglary lawyer Houston evaluates downward plea options in every case where entry or intent is genuinely contestable.
Burglary penalties depend on the structure type and offense committed inside. Burglary of a habitation with intent to commit theft is a second-degree felony (2–20 years, up to $10,000 fine). If a felony other than theft is committed inside, it becomes first-degree (5–99 years or life). Burglary of a building is a state jail felony (180 days to 2 years). Coin-operated machine burglary is a Class A misdemeanor.
No. Burglary of a habitation does not require the victim to be present at the time of entry. The structure must be one adapted for overnight accommodation of persons — it does not need to be occupied at the moment of the offense. The absence of occupants does not reduce the charge level, though it may affect prosecution and sentencing strategies in Harris County courts.
Yes — probation is available for second-degree felony burglary of a habitation in Texas, both through a judge's order and through a jury recommendation. Prior felony convictions can eliminate probation eligibility. First-degree burglary is probation-eligible by a judge following a guilty plea. Herman evaluates every case for probation alternatives and negotiates for the least restrictive outcome available. A burglary lawyer Houston evaluates probation eligibility early, since prior convictions can eliminate it entirely.
A burglary conviction cannot be expunged. However, if the charge is dismissed — including through successful defense at trial — an expunction removes the arrest from your record entirely. Deferred adjudication completed without revocation may be followed by a non-disclosure order that seals the record from most background checks. Herman pursues expunction and non-disclosure in every resolved burglary case. A burglary lawyer Houston pursues dismissal first because it's the only path to full expunction.
Do not make any statements to police or investigators before speaking with a defense attorney. Anything said before arrest can and will be used against you. Call Herman Martinez immediately at (713) 242-1779 — as a former Harris County Chief Prosecutor, he knows exactly how burglary investigations are built and can intervene before charges are filed to protect your rights and your record. A burglary lawyer Houston retained before charges are filed can sometimes prevent an indictment altogether.