Burglary of a Habitation in Texas | Houston Burglary Attorney

Burglary of a habitation is a second-degree felony in Texas — and a first-degree felony when the intent is a felony other than theft. Crucially, you don't have to take anything or even complete a crime inside: burglary is finished the instant there is an unlawful entry made with criminal intent. Because that intent is usually proven by inference, these cases are far more defensible than they first appear.

If you or a loved one has been charged with burglary in Houston, Harris County, or Galveston, Brian Foley and Luis Baez — former prosecutors — can help.

What the Law Covers

Under Texas Penal Code § 30.02, a person commits burglary of a habitation by, without the effective consent of the owner: (1) entering a habitation with intent to commit a felony, theft, or assault; or (2) entering and committing or attempting a felony, theft, or assault. A "habitation" is a structure or vehicle adapted for overnight accommodation, including houses and apartments. The key elements are unlawful entry, without consent, and criminal intent at the time of entry.

Penalty Range

Circumstance	Offense Level	Punishment
Burglary of a habitation (intent to commit theft/assault)	Second-Degree Felony	2 – 20 years prison; up to $10,000 fine
Entry with intent to commit a felony other than theft	First-Degree Felony	5 – 99 years or life; up to $10,000 fine

How These Cases Are Defended

Consent to enter. If you had permission to be there — a common issue among acquaintances, roommates, and family — there is no burglary.
Lack of intent at entry. The State must prove criminal intent at the moment of entry. When intent is inferred only from circumstances, that inference can be defeated, sometimes reducing the case to trespass.
Mistaken identity. Burglary cases often rest on limited eyewitness or circumstantial evidence; we test identifications hard.
Was it a "habitation"? If the structure was not adapted for overnight stay, the case may be the lower offense of burglary of a building.
Illegal search and seizure. Evidence obtained through an unlawful search can be suppressed.

Collateral Consequences

A felony burglary conviction carries prison exposure, loss of firearm and voting rights, immigration consequences, and a permanent record that surfaces on every background check. Given how often intent and identity are contestable, an experienced defense can make an enormous difference.

Related Charges

Why HCDA

Brian Foley is Board Certified in Criminal Law, and both he and Luis Baez are former prosecutors. If you or a loved one has been charged with burglary of a habitation in Houston, Harris County, or Galveston, contact Houston Criminal Defense Attorneys PLLC for a free, confidential consultation. Call or text (713) 703-1718.

Frequently Asked Questions

What is burglary of a habitation in Texas?

Under Texas Penal Code § 30.02, a person commits burglary of a habitation by entering a home or dwelling without the owner's consent with intent to commit theft, assault, or any felony — or by entering and then committing or attempting one. A 'habitation' includes a house, apartment, and structures or vehicles adapted for overnight accommodation. You do not have to take anything; entering with the required intent is enough.

Is burglary of a habitation a felony?

Yes, always. Burglary of a habitation is a second-degree felony (2 to 20 years in prison and up to a $10,000 fine). It becomes a first-degree felony (5 to 99 years or life) when the entry is made with intent to commit, or the defendant commits or attempts, a felony other than theft — such as assault.

Do I have to steal something to be guilty of burglary?

No. Burglary is complete the moment there is an unlawful entry with the required intent. That is why intent is the central battleground — the State often infers 'intent to commit theft' from the circumstances, and that inference can be challenged.

What is the difference between burglary of a habitation and burglary of a building?

A habitation is a place adapted for people to live or stay overnight — a home, apartment, or similar dwelling — and burglary of one is a second-degree felony. A non-residential structure is a 'building,' and burglary of a building is a state jail felony, a much lower offense level. Whether a structure is a habitation is sometimes disputed.

How is burglary of a habitation defended?

Common defenses include consent to enter, lack of intent at the time of entry, mistaken identity (these cases often rest on limited or circumstantial evidence), and an unlawful search that produced the State's evidence. We also challenge whether the structure was legally a 'habitation' and pursue reduction or dismissal where the proof is weak.