San Antonio Burglary Lawyer: Burglary and Criminal Trespass Charges in Bexar County

The garage door on the house off Highway 90 was open, and Daniel could see his tile saw on the workbench inside. His neighbor had borrowed it in the spring and never brought it back. Daniel walked in, picked it up, and was halfway down the driveway when the neighbor came out shouting. By evening he was at the Magistrate's Office on Comal Street, and the paper in front of the magistrate said burglary of a habitation, a second-degree felony. He never set foot in the house. He broke nothing. None of that appears in the name of the charge, and all of it bears on whether the charge is right.

Texas burglary requires no breaking. It means entering a building or home without the owner's effective consent, or hiding inside, intending a felony, theft, or assault, or entering and then committing or attempting one. The place sets the grade: a building is a state jail felony, a home a second-degree felony, or first-degree if the felony intended, committed, or attempted was something other than felony theft. Criminal trespass is entering or staying after notice that you were not welcome, with no criminal purpose required, and it is usually a misdemeanor. The gap between burglary and trespass is the gap between a felony and a misdemeanor, and it rests on what the State can prove was in a person's mind.

What the State has to prove

Burglary is defined in Penal Code § 30.02, with its terms in § 30.01. "Enter" means to intrude any part of the body, or any object connected with the body. A hand through an open window is an entry. So is a screwdriver held in that hand. Force is not an element.

A "habitation" is a structure or vehicle adapted for people to stay overnight, and it includes each structure appurtenant to or connected with it. That is how an attached garage becomes part of a home, and how Daniel's charge became a second-degree felony. For any other building, the State must also show the part entered was not then open to the public.

The entry must be without the "effective consent" of the owner. Under § 1.07, the "owner" includes anyone with title, possession, or a greater right to possession than the accused.

Last, intent. The State must prove that the person entered, or remained concealed inside, meaning to commit a felony, theft, or an assault, or that after entering he committed or attempted one. Intent is inferred from the hour, the tools, what was touched. Take intent away and what remains is usually criminal trespass under § 30.05: entering, or refusing to leave, after notice that entry was forbidden. Notice can be spoken, written, a sign, or a fence. For trespass, "entry" means the whole body.

Burglary of a vehicle, § 30.04, is the same idea for cars, limited to an intended felony or theft.

Punishment ranges in Texas

• Burglary of a building: State jail felony; 180 days to 2 years state jail (§§ 30.02(c)(1), 12.35)
• Burglary of a habitation: Second degree; 2 to 20 years (§§ 30.02(c)(2), 12.33)
• Habitation, felony other than felony theft intended, committed, or attempted: First degree; 5 to 99 years or life (§§ 30.02(d), 12.32)
• Burglary of a vehicle: Class A misdemeanor; up to 1 year jail (§§ 30.04(d), 12.21)
• Vehicle, two or more prior convictions: State jail felony; 180 days to 2 years state jail (§§ 30.04(d)(2), 12.35)
• Criminal trespass: Class B misdemeanor; up to 180 days jail (§§ 30.05(d)(1), 12.22)
• Trespass in a habitation, or carrying a deadly weapon: Class A misdemeanor; up to 1 year jail (§§ 30.05(d)(3), 12.21)

Each felony level also allows a fine up to $10,000; a Class A misdemeanor, $4,000; a Class B, $2,000. One prior vehicle-burglary conviction adds a six-month minimum jail term, and a deferred adjudication counts as a prior. A state jail felony is punished as a third-degree felony, two to ten years, if a deadly weapon was used or exhibited.

Consequences outside the courtroom

A felony conviction takes away the right to possess a firearm under Penal Code § 46.04: anywhere until five years after release from confinement or supervision, and after that anywhere but the home where the person lives. Federal law, 18 U.S.C. § 922(g)(1), separately bars anyone convicted of a crime punishable by more than a year from possessing a firearm, with no five-year limit and no home exception. Under Government Code § 411.172, a felony conviction bars a Texas handgun license, and a Class A or B misdemeanor conviction bars one for five years.

A misdemeanor deferred adjudication for vehicle burglary or trespass can qualify for automatic nondisclosure under Government Code § 411.072 if the person has no other record beyond fine-only traffic tickets. A misdemeanor conviction for either, with no prior record, can be sealed by petition too: on completing probation under § 411.073, or two years after completing a sentence under § 411.0735. A felony deferred adjudication can support a petition five years after discharge under § 411.0725.

Anyone who is not a United States citizen should get advice about immigration consequences before entering any plea.

How a burglary case moves in Bexar County

After arrest, the person sees a magistrate at the Magistrate's Office on Comal Street, where bond and conditions are set. Burglary of a vehicle and criminal trespass are usually misdemeanors, heard in the Bexar County Courts at Law. Burglary of a building or a home is a felony: the Bexar County District Attorney's Office presents it to a grand jury, and if the grand jury indicts, the case goes to a district court.

Then comes discovery: the offense report, the 911 call, video, and any statement. The timeline is its own subject, covered in how long a criminal case takes in Bexar County.

What this office looks at in a burglary case

A San Antonio burglary lawyer tests each element against the evidence.

The first is the place. A detached shed and an attached garage can land on different sides of § 30.01, and the answer moves the grade.

The second is consent, and who had the power to give it. Roommates, relatives, and employees with keys all complicate who the "owner" was.

The third is intent. If the State's theory rests on the hour and a pair of gloves, a jury may decline to draw that inference. Where the proof of intent is thin, the case may be a trespass case wearing a burglary label.

The fourth is how the evidence was gathered. Identifications, searches, and custodial statements all have rules, and evidence gathered outside them can be challenged. What a person tells police in the first hour is often the center of the State's intent case; see whether a confession can be thrown out. Where the intended crime is theft, the rules on theft charges come in as well.

Questions people ask about burglary in Texas

Is it burglary if nothing was stolen?

Yes, it can be. Burglary under Penal Code § 30.02 is complete at the moment of entry if the person entered without consent intending to commit a felony, theft, or an assault. Nothing has to be taken or broken. Without a completed theft, the charge rests on inferences about intent.

What is the difference between burglary and criminal trespass in Texas?

Intent, mostly. Burglary requires a criminal purpose. Criminal trespass under § 30.05 requires only entering or remaining without consent after notice that entry was forbidden. Trespass is usually a Class B misdemeanor, or Class A in a home. Burglary of a home is a second-degree felony.

Is burglary of a vehicle a felony in Texas?

Usually not. A first offense under § 30.04 is a Class A misdemeanor, punishable by up to a year in jail and a fine up to $4,000. One prior conviction adds a six-month jail minimum; two or more make it a state jail felony, and a prior deferred adjudication counts.

Back to the garage off Highway 90

Daniel walked, uninvited, into a space the law treats as part of a home and carried something out. His defense cannot be that the saw was his: under Penal Code § 31.10, owning an interest in property is no defense to theft if someone else had the right to possess it to the exclusion of others. The live questions are whether the loan gave his neighbor that right, and what the State can prove Daniel meant when he stepped inside. The felony label answers both in advance. The law does not.

Anyone facing a burglary or trespass charge in Bexar County can reach this office at (210) 201-3096, or through the contact form.

By Christian O. Vega, Attorney at Law

The Law Office of Christian Vega · 130 E Travis St, Suite 425, San Antonio, Texas 78205

Texas State Bar No. 24121180

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