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.