Burglary in Texas doesn’t require breaking anything. Walking through an unlocked door, or reaching an arm through an open car window, without permission and with the intent to steal or commit a felony (or, for a home or building, an assault), is enough (Penal Code §§ 30.02, 30.04). The grade depends almost entirely on what you went into. A car is a Class A misdemeanor on a first offense. A business or other building is a state jail felony. A home is a second-degree felony with 2 to 20 years, and a first-degree felony with up to life if the State says you went in to commit a felony other than felony theft.
Call (713) 664-4000 for a free consultation. If a detective calls wanting to “hear your side,” don’t. Burglary cases are built on intent, and the easiest way for the State to prove intent is with your own words.
Our Houston criminal defense lawyer team handles everything from a car break-in at a Galleria garage to a home burglary indictment carrying real prison time.
How Texas grades burglary
| What you’re accused of entering | Level | Range |
|---|---|---|
| A vehicle, first offense | Class A misdemeanor (§ 30.04(d)) | Up to 1 year in county jail, up to a $4,000 fine |
| A vehicle, with one prior burglary of a vehicle conviction | Class A misdemeanor with a minimum (§ 30.04(d)(1)) | At least 6 months and up to 1 year in jail |
| A vehicle, with two or more prior burglary of a vehicle convictions, or a rail car | State jail felony (§ 30.04(d)(2)) | 180 days to 2 years in state jail, up to a $10,000 fine |
| A building that isn’t a home (a store, an office, a warehouse, a closed bar) | State jail felony (§ 30.02(c)(1)) | 180 days to 2 years in state jail, up to a $10,000 fine |
| A pharmacy, clinic, hospital or other commercial building where controlled substances are stored, or a prescription drug wholesaler’s vehicle, to steal drugs | Third-degree felony (§§ 30.02(c-1); 30.04(d)(3)(A)) | 2 to 10 years in prison, up to a $10,000 fine |
| A building that isn’t a home, or a vehicle, in the course of human smuggling under § 20.05(a)(2) | Third-degree felony (§§ 30.02(c-2); 30.04(d)(3)(B)) | 2 to 10 years in prison, up to a $10,000 fine |
| A home (a habitation) | Second-degree felony (§ 30.02(c)(2)) | 2 to 20 years in prison, up to a $10,000 fine |
| A home, entered with intent to commit a felony other than felony theft, or where one was committed or attempted inside | First-degree felony (§ 30.02(d)) | 5 to 99 years or life, up to a $10,000 fine |
Burglary of a vehicle in Houston
Car break-ins have their own statute. The offense is breaking into or entering a vehicle, or any part of one, without the owner’s consent, intending to commit theft or any felony (§ 30.04(a)). Notice what isn’t required. The car doesn’t have to be locked, and nothing has to be taken. “Enter” means intruding any part of your body, or any object connected to your body, so a hand through a cracked window or a slim jim in the door frame counts (§ 30.04(b)).
The priors ladder is where these cases get expensive. One prior burglary of a vehicle conviction puts a six-month jail floor under the Class A. Two priors turn it into a state jail felony. And a deferred adjudication you finished years ago still counts as a prior here, whether or not you were ever sentenced (§ 30.04(d-1)). Those priors only matter if the State alleges them and proves them. Because the priors set the grade, getting them abandoned takes a felony back down to a misdemeanor, and that’s often what we’re negotiating.
Car cases also tend to be weak on intent. Being near a car, or touching one, isn’t burglary. Damage with no plan to steal looks more like criminal mischief, and a missing item with shaky proof of entry may really be a theft case graded by value.
What the State has to prove for burglary of a home or building
Under § 30.02(a), the State has to show you acted without the owner’s effective consent and either:
- Entered a home, or a building (or part of one) not then open to the public, intending to commit a felony, theft or an assault.
- Hid inside a building or home with that same intent. Staying in a store after closing is the classic version.
The State can also skip intent at the door and prove you went in and then committed or attempted a felony, theft or an assault inside. For the entry version, the intent has to exist when you go in. Nobody admits intent, so prosecutors prove it with circumstances: the hour, the tools in your pocket, how you got in, what was missing. Those facts usually have another explanation.
“Habitation” is any structure or vehicle adapted for people to stay overnight, including each separately secured unit and any structure attached to it or that goes with it (§ 30.01(1)). A house between tenants can still qualify, because the question is whether it’s set up for people to stay overnight, not whether anyone was home that night. A garage or shed that goes with a house can get pulled into that definition, turning a state jail felony into a second-degree felony. That fight is worth having.
How we fight burglary charges
Consent. A roommate, a landlord, a friend whose couch you’ve slept on for months, an ex who let you keep a key. If you had the owner’s consent, there’s no burglary, and a reasonable but mistaken belief that you had it can be a defense too (§ 8.02).
Identification. Most burglaries happen with nobody watching. We get the surveillance video and the doorbell camera footage, and we look hard at how the police picked you. Fingerprints and DNA on a car door or a window frame prove you touched it at some point, not when. We review the lab work ourselves and challenge it when it’s weak.
Intent. Without proof of intent at entry, a burglary can become criminal trespass, which is usually a Class B misdemeanor, or a Class A if it was a home (§ 30.05(d)). Either is a long way from a felony.
The grade. We test whether the place really was a habitation, whether the priors are valid and properly alleged, whether a building was really storing controlled substances, and whether the first-degree “felony other than felony theft” allegation holds up.
Burglary results from our case files
- Dismissed in Harris County, burglary of a building (felony): client was found inside a closed bar at 4:45 a.m. after the burglar alarm went off.
See more of our case results. Prior results do not guarantee a similar outcome.
Probation and your record
A judge can grant probation on most burglary charges, including burglary of a home. The exception is the first-degree version where the State says the intent was a listed sex offense, which takes judge-ordered probation off the table (Code of Criminal Procedure Art. 42A.054(a)(12)). More on who is eligible for probation in Texas.
A dismissal can often be expunged as long as there was no court-ordered supervision, though depending on why the case was dismissed, you may have to wait (Arts. 55A.051 to 55A.054). A deferred adjudication can’t be expunged, but you may be able to seal it with an order of nondisclosure: on a misdemeanor like burglary of a vehicle, starting at the discharge, and on a felony, five years after it, if the judge agrees (Gov’t Code §§ 411.072, 411.0725). A conviction is what shows up on apartment and job background checks for years, so it’s the outcome we work hardest to keep off your record.
Common questions about burglary charges
Is breaking into a car a felony in Texas?
Usually not on a first offense. It’s a Class A misdemeanor. It becomes a state jail felony with two prior burglary of a vehicle convictions, or if it’s a rail car. A first offense can be a felony in narrow cases, like breaking into a prescription drug distributor’s truck to steal drugs.
What if I didn’t take anything?
Burglary can still be charged, because the crime is entering with intent. But nothing taken also means less evidence of intent, which helps us.
Related charges
See our pages on theft and criminal mischief, or read the text of Texas Penal Code Section 30.02.
Charged with burglary in Houston? Call Blass Law
Jay Blass Cohen has defended people in Houston since 2009 and has never worked for the prosecution. We’ll get the video before it’s overwritten and find out what the State can actually prove about intent. Then we fight the grade as hard as the charge. Call (713) 664-4000 or fill out the form on this page for a free consultation. If you were arrested this week, call today.