Burglary of a habitation is a less serious offense than burglary of a building.

If you think it’s a good idea to go down through a chimney like Good Saint Nick, you might want to think again. Burglary is one of those offenses that gets real complicated real fast. One small change in how you go about your “business” and your possible sentence jumps from six months to twenty years.

I don’t think any of us want to be spending twenty years in prison for delivering toys…

Today, we’re continuing the Crime of the Month: Defending Santa series by taking a look at the Burglary statute. Since this one is composed of lots (and lots) of parts and definitions, we’re going to break it down piece by piece.

Let’s start with the core of the statute:

Texas Penal Code § Sec. 30.02Burglary

(a) A person commits an offense if, without the effective consent of the owner, the person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

What this describes is two distinct burglary offenses: Burglary of a Habitation and Burglary of a Building.  Why does it matter what you’ve allegedly burgled? Well, it affects the range of punishment significantly. A burglary of a building has less significant consequences. Typically, a burglary of a building is a state jail felony, meaning that it’s punishable by a minimum of 6 months up to 2 years in a state jail facility. A burglary of a habitation, on the other hand, is usually a second-degree felony,  and can face a minimum of 2 years and up to 20 years in prison. But beware: a burglary of a habitation could potentially be a first degree felony if the elements enhancing it to that degree are present.

So, the distinction between a habitation and a building is important… but what is that oh-so-important line? The statute defines a habitation for us:

(1) “Habitation” means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:(A) each separately secured or occupied portion of the structure or vehicle; and(B) each structure appurtenant to or connected with the structure or vehicle.

Essentially, a habitation is a place where people are intended to sleep, and includes any structures (like a garage) that are attached to it. It can also include mobile vehicles that people sleep in, like an RV. Now for a building:

“Building” means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.

Buildings include habitations, but other structures as well. Buildings that are not habitations usually involve structures used in business, like an office or a warehouse.

A person’s house? Habitation.

A local restaurant? Building.

An apartment? Habitation.

A leasing office for an apartment? Building.

A Bed and Breakfast? Habitation.

A house in which no one is currently living? Still a habitation.

So, now that we’ve got that down, what does it mean to enter a habitation or a building?

(b) For purposes of this section, “enter” means to intrude:(1) any part of the body; or(2) any physical object connected with the body

This means that for this offense, if any bit of you or anything you’re holding enters the habitation or building, that counts as entering. For example, if you break a window and stick your hand into the window with the intent to steal an item or punch someone on the other side, you have entered.  You can even use a bat to do that and never actually put your hand inside the building. Still counts.  It’s very broad.

So, we’ve got two ways a burglary can be committed and we’re clear on what it means to “enter” each one. Now, we can get into the nitty gritty. There are three ways an action could be considered burglary:

(1) entering a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

(2) remaining concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or

(3) entering a building or habitation and commits or attempts to commit a felony, theft, or an assault.

The first and third way are very similar, so we’ll start with the second. Remaining concealed does not mean that you snuck, ninja-like, into the building. Rather, it usually means that you were legally allowed to be in the building, but then you hid somehow so that later, you could commit some offense. Think of that movie cliché we’ve all seen where someone gets the bright idea to hide in a tent until a store closes and then once the store is closed, runs around the store having the night of their life, eating all the food and playing with all the items. Life advice: Don’t do it, even though it sounds super fun.

The other two ways the statute defines burglary both have to do with entering. Explaining the difference between the two ways requires us to get into a discussion of mens rea, or mental state. The first two methods of burglary require that the entry (or concealment) be done with specific intents. Those intents are to commit a felony, theft, or an assault. For example, if you enter a building with only the intent to hide from someone trying to kill you, it lacks one of the specific intents required, so you would not be guilty of burglary. (Of course, you could still be found guilty of criminal trespass, but that’s another article.)

The state is allowed to prove intent through inference, so it’s usually a pretty easy burden for prosecutors to overcome. Say for example that a person breaks into a building and is caught almost immediately. Unless there’s a clearly innocent motive on the surface, a jury can infer that the reason a person would break into the building was for some nefarious purpose, like theft.

The final way burglary occurs is probably the most obvious: if someone enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. In this last piece, the intent doesn’t have to be proven, because the act was finalized, or almost finalized, in some way. Whether or not the actor intended to commit a felony, theft, or an assault, they tried to and possibly succeeded. So they’re on the hook for it.

For example, suppose a person breaks into the house planning to hit someone with a baseball bat. They get in, encounter the person they want to hit, and take a swing. They miss, the police show up right then, and arrest them. In this case, they have attempted to commit an assault, the act is complete with the swinging of the bat, so their intent doesn’t matter.

The final thing I want to address on this statute is that it is only an offense if the entry or remaining occurs without the “effective consent of the owner”. In Texas, owner is defined as a person who:

(A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor; or

(B) is a holder in due course of a negotiable instrument.

Breaking this down in its simplest form, it means that whoever has a greater right to the item is the owner. It doesn’t actually have to be the ‘owner’ in the way we have come to understand it. For example, in the case of a building, the owner can be a security guard protecting the property, or, to get even more simple, a cashier working in a convenience store who tells another individual not to come back to the property. This cashier, as someone who has been given the responsibility of working in the store, has the right to exclude people because they have a greater right to possession of the property than a customer does.

Now the next question is obviously, what does effective consent mean? Well, Texas has given us a definition of this as well.

(19) “Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if:(A) induced by force, threat, or fraud;(B) given by a person the actor knows is not legally authorized to act for the owner;(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or(D) given solely to detect the commission of an offense.

What this boils down to is that consent is only effective if a person is capable of giving it and is not somehow forced or coerced into giving it. A person who has been forced or tricked into giving consent does not count. A person who the actor knows does not count as an owner of the property does not count. A person who the actor knows has some form of mental inhibition does not count. And of course, there’s a measure in there to allow for sting operations.

Imagine this scenario: A clerk at a hotel runs a side scam, renting out empty rooms to people for an extreme discount he then pockets. The people he rents the rooms out to don’t know the clerk is doing this, and think they are just getting a great deal. For purposes of effective consent, the customer believes they have permission to be in the hotel room. Not burglary. While in the hotel room, the customer steals some blankets and then leaves. Still not burglary. Instead, it must be charged as a simple theft case, which has a smaller range of possible jail time, because the customer entered the room with the effective consent of the owner. The owner themself may state that the customer did not have their effective consent, but the clerk giving them permission to be in the room negates that issue.

That was a long one, but at the end of the day the statute has carefully defined boundaries for what is burglary and what must be pushed into some other charge that is less likely to net significant jail time. Doesn’t make it less confusing, but it does give hope for the possibilities of defending against it.

The Burglary statute is definitely a complex one, filled with pitfalls and confusing definitions. If you find yourself or a loved one charged with this offense, contact us here for a free consultation.

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