Texas Burglary of a Habitation Part 3: Texas Criminal Defense Lawyer

In this final presentation of a three part series of videos, criminal defense attorney George Parnham discusses criminal trespass laws as well as the implications of burglary or criminal trespass charges in a situation such as divorce, in which the defendant maintains a community property interest.

Although similar, burglary and criminal trespass are two separate crimes in Texas. Under Texas Penal Code § 30.05, the definition of criminal trespass is more complex than simply being on someone else’s property. To begin with, the law defines property as including "...residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle".
This means that criminal trespass can encompass all sorts of public and privately owned property intended for different types of use. People can be convicted of criminal trespass when they unlawfully cross residential property, commercial property, agricultural property, forest land, and even government property. It is also unlawful to trespass in an area with an oil refinery, chemical manufacturing facility, water treatment plant or an electrical power generating facility.

Unlike the charges for burglary, criminal trespass charges do not require any intent of theft or felony. Also, although you can be charged of burglary simply by having any part of your body on the property (i.e., holding a flashlight through a window or door in order to survey the contents of a room), criminal trespass requires that your entire body be on the property.


In order for someone to be convicted of criminal trespass, they must have either been given notice that entry to a property is forbidden, or they must have been told to leave the property and then either failed to leave or returned to the property (still without consent). Notice can be given in several ways;  it can be an oral or written communication by the owner or someone acting for the owner, it can be a fence or other enclosure obviously designed to exclude intruders or to contain livestock, or it can be in the form of sign posted in a location reasonably likely to be noticed.
On forested or agricultural property,  notice can be in the form of readily visible purple paint marks of proper size and placement on trees or posts spaced no more than 100 feet apart on forest land or 1,000 feet apart on non-forest land. Notice can also simply be the visible presence of any crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.


Criminal trespass is normally a Class B misdemeanor with a fine up to $2,000 and a jail term up to 180 days. If the trespass is on agricultural land, and the trespasser is apprehended within 100 feet of the boundary of the land, the offense is a Class C misdemeanor with a fine up to $500. Agricultural land is broadly defined and includes land suitable for growing plants (for food, feed, fiber, seed, etc.) or trees or for keeping farm or ranch animals. However, under certain conditions including if one has a deadly weapon on or about one’s person the offense is a Class A misdemeanor with a fine up to $4,000 and a jail term up to one year.

If you have been accused of a crime call us today at 713-224-3967 or visit parnhamandassociates.com for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case.

Texas Burglary of a Habitation Part 2:Houston Criminal Defense Attorney

In this second presentation in a three part series of videos, criminal attorney George Parnham discusses issues of effective consent as applied to an individual's access to private property, the types of properties involved, and the importance of "intent" as applied to charges of burglary of a building or habitation. He also discusses the differences between "burglary of a building" and "burglary of a habitation" as defined by Texas state laws.  
In Texas, burglary is defined as "unlawfully entering or remaining in any structure... with the intent to commit a felony, theft, or assault inside".  
Home invasion refers specifically to a burglary that occurs within a habitation- any structure or vehicle that is adapted for the overnight accommodation of one or more people (Tx. Stat. & Code Ann. § 30.02.)

The two elements of the definition -unlawful entry and intent to commit a felony, theft, or assault inside- must be either proved beyond a reasonable doubt or admitted to by the defendant to be convicted of burglary. Without sufficient proof of both elements, the prosecutor may secure a conviction for another crime such as trespass, but not burglary.
The intended crime (such as theft) need not actually be completed; proof of entry and of the intent to commit one of these crimes inside are the only requirements for a conviction.


Defense against a burglary charge usually concentrates on situations in which all the necessary elements of proof haven’t been met. If the plaintiff consented to the defendant’s acts it may serve as a defense; i.e., if they consented to the person’s entry or allowed them to take an item of property, it may negate an element of burglary. However, the consent needs to be voluntary and the plaintiff needs to  be of legally capable of consenting.

Likewise,  if the defendant didn’t actually intend to commit theft or felonious crime at the time that they entered the building, structure, or dwelling place then burglary charges wouldn't apply. An example would be someone who entered a building without permission, but simply to take photographs or out of curiosity rather than to remove property or commit any other felony.

Burglary charges also usually don’t apply to open spaces or places that are not actually structures. The point is that someone’s building is being entered for the purpose of committing a crime inside. However, some jurisdictions consider yards and gardens to be part of the dwelling place.

Even with the lack of intent to commit a theft or felony, the defendant may still be charged with Criminal Trespass. Section § 30.05 of the Texas Penal Code states that it is illegal to enter or remain on a property, including land, buildings or an aircraft of any kind without consent if the person had notice that their entry was forbidden, or if they received notice that they should depart and then failed to comply.



Burglary of a building that is not a habitation is a state jail felony, and occurs when a defendant unlawfully enters or remains in a public or private building (but not a habitation) with the intent to commit a felony, theft, or assault.
Burglary of a habitation, or home invasion, is a second degree felony, and occurs when a defendant unlawfully enters or remains in a habitation with the intent to commit a felony theft or an assault therein. The crime increases to a first degree felony if the defendant entered the habitation with the intent to commit a felony other than felony theft therein.

If you have been accused of a crime call us today at 713-224-3967 or visit ParnhamandAssociates.com for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case.