What is burglary of a habitation in Texas?
Under Penal Code §30.02, burglary is entering a habitation or building without the owner's effective consent with intent to commit a felony, theft, or an assault, or remaining concealed with that intent, or entering and actually committing or attempting one. When the place is a habitation, it is a second degree felony, 2 to 20 years, even if nothing was taken. If the intent or the act was a felony other than theft, an assault inside a home for example, it becomes a first degree felony, 5 to 99 years or life.
- No theft is required. Entering with the intent is the crime; "entering" includes reaching a hand or an object through a window.
- Habitation versus building is the whole ladder: a store is a state jail felony, a home is 2 to 20, a home with a felony intent is 5 to 99.
- Many first degree burglaries are domestic: walking into an ex-partner's home during an argument that turns into an assault.
- The State has five years to indict. Intent, consent, and identity are where these cases are won.
- Say nothing to detectives before counsel. "I just went in to talk" is an admission of entry; the intent fight starts from there.
Burglary of a habitation surprises people twice: first because it does not require that anything be stolen, and second because of how far the range jumps when a home is involved. Peter M. Barrett has defended violent and property felonies in Dallas County since 1994, across more than 150 jury trials, and the case review is free and confidential. This guide explains how the statute grades the offense, what drives the first degree version, and how the defense actually works.
The burglary ladder
| Charge | Place and intent | Level | Range |
|---|---|---|---|
| Burglary of a building | A building not open to the public, with intent to commit a felony, theft, or assault | State jail felony | 180 days to 2 years |
| Burglary of a building, enhanced | A pharmacy, clinic, or similar building with intent to steal controlled substances; or during smuggling of persons | 3rd degree felony | 2 to 10 years |
| Burglary of a habitation | A home, with intent to commit a felony, theft, or assault | 2nd degree felony | 2 to 20 years |
| Burglary of a habitation, first degree | A home, where any party entered with intent to commit, or committed or attempted, a felony other than theft | 1st degree felony | 5 to 99 years or life |
Two words in §30.02(d) carry the first degree version: "any party." If two people enter a home and one of them commits an assault, the other faces first degree exposure too. That is why the charge turns up in cases that began as something far smaller, and why who did what inside the house is contested so hard.
The three elements the State must prove
- Entry without effective consent. Any intrusion of the body or a connected object counts. Consent is the quiet battleground in domestic cases: a key, a history of coming and going, a text saying "come get your things" all go to whether entry was unlawful.
- A habitation or building. A habitation is a structure adapted for overnight accommodation, which can include a vehicle or a garage attached to the home. Whether a detached structure or a vacant unit qualifies is a legal argument, not a given.
- Intent at the time of entry, or an act inside. Intent to commit theft, a felony, or an assault must exist when the person enters, unless the State proves a completed or attempted offense inside. Intent is inferred from circumstances, and circumstances have more than one reading.
The domestic burglary, the charge nobody expects
The most common first degree burglary in Dallas County courtrooms is not a masked intruder. It is a person who enters a former partner's home, with or without a key, and an argument becomes an assault. Entry without consent plus an assault inside is burglary of a habitation; if the assault is itself a felony, the charge is first degree under §30.02(d). Prosecutors file it because it carries far more weight than the assault alone. The defense answers on consent, on whether the assault happened as described, and on whether any felony intent existed at the moment of entry. The aggravated assault guide covers the companion charge.
What a conviction means in practice
A second degree conviction carries 2 to 20 years, and probation remains possible in the right posture, which is one reason the second-versus-first-degree fight matters so much. Where a deadly weapon finding is added, parole eligibility under Government Code §508.145 requires half the sentence served day for day, with no good conduct credit. The statute of limitations is five years for burglary under article 12.01, and far longer where the entry was with intent to commit a sexual offense. These are the stakes the charging decision carries, which is why the defense engages before the indictment, not after.
Where burglary cases are won
- Consent. Keys, invitations, cohabitation history, and messages often show the entry was permitted or that the accused reasonably believed it was.
- Intent. Entering to retrieve property, to talk, or while intoxicated is not entering with intent to commit a felony, theft, or assault. The State infers intent; the defense supplies the alternative explanation with evidence.
- Identity and forensics. Nighttime, partial descriptions, and fingerprints on exterior surfaces are weaker than they sound in an offense report.
- Charge level. Habitation or building, first degree or second, "any party" liability: each is a factual question worth decades.
- Release. A second or first degree charge means a serious bond fight; see how bail is decided.
Common questions
Is burglary of a habitation a felony in Texas?
Yes, always. It is a second degree felony, 2 to 20 years and up to a $10,000 fine, and a first degree felony, 5 to 99 years or life, when any party to the offense entered with intent to commit, or committed or attempted, a felony other than theft inside the home.
Can I be charged with burglary if I did not steal anything?
Yes. Burglary is complete at the moment of entry with the required intent. Nothing has to be taken, touched, or damaged. The State proves intent from circumstances: the time, the manner of entry, what was said, what was carried. Each of those is open to a different explanation.
What is the difference between burglary and robbery?
Burglary is about a place: unlawful entry with intent. Robbery is about a person: theft with injury or threat. A home invasion where residents are threatened can be both, and aggravated robbery carries its own first degree range.
I had a key to the house. Is it still burglary?
A key is evidence about consent, not a complete answer. If the owner had withdrawn consent, a key does not restore it; if consent was ongoing or reasonably believed, entry was not unlawful. In domestic cases the messages, the living arrangement, and the history decide it, which is why they are gathered immediately.
What is the statute of limitations for burglary in Texas?
Five years from the offense under article 12.01 for ordinary burglary. Burglary of a habitation with intent to commit a sexual assault is treated differently: 20 years from the victim's 18th birthday where the victim was a child, and no limitation at all where untested or unmatched DNA evidence was collected. The limitations guide covers the full table.
When do I need a lawyer?
Before any conversation with police. The explanation that feels harmless, "I only went in to get my things," concedes entry and leaves only intent to argue, on the State's terms. The consultation is free and confidential: (214) 526-0555, answered 24/7 for emergencies.
The law this article describes, at the source.
This article is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed criminal defense attorney about your specific facts. Request a free, confidential case review.