What is Considered Breaking and Entering?

Permission, or lack thereof, is often the critical element in a burglary case.

Breaking and entering are the two primary components of burglary in Texas and most other states. At trial, the state must prove breaking and entering, and all other elements of burglary, beyond any reasonable doubt. As outlined below, breaking and entering have specific meanings in criminal court.

Therefore, to successfully resolve a burglary case, a Ft. Worth criminal defense lawyer must only create a reasonable doubt. Several strategies are available in this area. One of the most successful may be challenging the complaining witness’s testimony. Frequently, a burglary property owner is an ex-spouse or ex-paramour who has potential bias against the defendant. Furthermore, alleged victims aren’t professional witnesses, and their testimony may be inconsistent in minor areas. As a result, they lose substantial credibility with jurors.

Breaking

For burglary purposes, “breaking” into a home basically means “entering or remaining without consent” in a home or other structure.

Common scenarios include unlocking a locked door without permission, opening an unlocked door without permission, and going into a restricted area without permission.

Consent is a vital element in all these situations, so we’ll discuss it before we discuss “breaking.” In the context of a burglary, consent is often a funny thing. Generally, consent is effective until unequivocally revoked. If Nancy gives Jimmy a key to her house, she consents to Jimmy’s entry almost at any time, until she asks for the key back or tells Jimmy to stay away.

The restricted area language usually applies to the burglary of a commercial building. However, certain parts of private homes are “not then open to the public,” in the words of Section 30.02(a)(1). The curtilage of a house, usually the outside near the house itself, is not open to the public. An open bed of a pickup truck is not open to the public either.

In terms of successful resolutions, a plea to a lesser-included offense, such as reckless conduct, may be an option in a weak evidence burglary case. This offense is a misdemeanor, which does not have the same direct consequences, such as jail time, or collateral consequences, such as immigration issues, as a felony.

Entering

According to the statute, a defendant enters a space when s/he penetrates the threshold with any part of the body or with an object, like a crowbar, that is connected to the body.

Assume Loni obtains a restraining order against Burt, which prohibits him from entering her apartment. Burt goes to her apartment when he knows she isn’t home, intending to reclaim property. The electronic lock on the door records Burt unlocking the door, but there’s nothing missing inside the apartment.

Right off the bat, a Ft. Worth criminal defense lawyer could successfully argue that Burt did not go to Loni’s apartment with the intent to commit a felony, theft, or assault. Violation of a restraining order is usually a misdemeanor, recovering your own property is not theft, and Burt clearly did not intend to assault Loni. Of course, the prosecutor would have something to say on each of these points.

Burt’s entry, or lack thereof, is more important for the purposes of this post. It is reasonable to assume, based on the evidence, that Burt unlocked the door without permission but had second thoughts about going inside. Therefore, Burt is guilty of something, probably violating the restraining order, but he isn’t guilty of burglary.

Work With a Thorough Tarrant County Attorney

Breaking and entering have specific meanings in Texas. For a confidential consultation with an experienced criminal defense lawyer in Ft. Worth, contact the Law Office of Kyle Whitaker by calling 817-332-7703 or going online now. We routinely handle matters in Dallas County and nearby jurisdictions.