Can I Be Charged With Burglary if I Did Not Steal Anything?

Burglary essentially means illegally entering a place.

We hear this question a lot. Some defendants sneak into houses, get scared when an alarm goes off or someone approaches the home, and sneak back out. Others sneak into houses to reclaim property that the other person “borrowed,” or as self-help reimbursement (e.g., you broke my lawnmower, so I’ll take yours). All these scenarios, and many more like them, could be considered burglary under Texas Penal Code 30.02.

Because the law is so complex and could apply in so many situations, a partnership with a good Fort Worth criminal defense lawyer is essential. Usually, a private lawyer is a much better choice than a public defender or court-appointed lawyer. These attorneys are not always available. The Sixth Amendment guarantees the right to a lawyer, not the right to a free lawyer. Furthermore, court-appointed lawyers and public defenders are randomly assigned. A defendant may or may not get a good Fort Worth criminal defense lawyer.

Legal Issues

The first issue in a burglary case, which many lawyers skip past, is owner consent. The Penal Code broadly defines consent as “assent in fact, whether express or apparent.”

If Tony leaves his front door unlocked, depending on the additional facts, he may have given “assent in fact” for anyone to enter through the front door. That “assent in fact” might also apply to the back door and all other entrances.

Furthermore, in most cases, consent is valid until unequivocally revoked. If Sarah gives Tony a key so he can feed her cat while she is on vacation, Tony arguably has consent to enter her house at any time, until she asks him to give back the key.

The most common burglary scenario is Section 30.02(3), which is entering a habitation, or a building (or any portion of a building) with intent to commit a felony, theft, or an assault.

So, this offense is complete when the defendant enters a structure, if the defendant has the required intent.

Generally, prosecutors use conduct to prove intent. If Dave doesn’t steal anything or commit another prohibited act, intent is difficult to prove, at least beyond a reasonable doubt. Additionally, if the building was open to the public (the door was open or unlocked), the statute may not apply.

The second scenario (remaining concealed, with intent to commit a felony, theft, or an assault, in a building or habitation) is in Section 30.02(2). Most states have such a law but omit the “remaining concealed” requirement. In other words, if the owner tells the defendant to leave and they refuse to leave, they could be charged with burglary. But that’s not the case in Texas, because of the concealment requirement.

A third scenario (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) doesn’t come up very often.

Resolving the Case

Most burglary cases, and most criminal cases in general, settle out of court. During plea negotiations, a Fort Worth criminal defense lawyer usually reduces the punishment or the charges.

Deferred adjudication probation is usually available in burglary cases. If the defendant successfully completes probation, the judge dismisses the case, meaning the defendant has no conviction record. The arrest record remains, and a deferred adjudication dismissal still counts as a conviction in some cases, such as immigration matters.

Sometimes, prosecutors reduce felony burglary charges to misdemeanor charges, such as reckless conduct or theft, if the defendant voluntarily pleads guilty or no contest.

Count on a Hard-Hitting Tarrant County Attorney

Burglary is not limited to home invasion-type scenarios. For a confidential consultation with an experienced criminal law attorney in Fort Worth, contact the Law Office of Kyle Whitaker by calling 817-332-7703 or going online now. The sooner you reach out to us, the sooner we start working for you.