November 23, 2023

The act of breaking and entering, also known as B&E, involves unauthorized entry into a residence or building, usually with the intent to commit a crime on the premises.

Some states have criminal laws that specifically define and prohibit breaking and entering. Other states, including Texas, cover the act of B&E with criminal statutes on burglary and criminal trespass.

According to Texas state law, burglary is a felony offense that is committed by illegal entry with intent to commit theft, assault, or a felony on the property.

Meanwhile, criminal trespass is a misdemeanor offense where a person knowingly enters or remains on private property without permission. Unlike burglary, it does not require criminal intent.

Lock picking

What Is Considered Burglary in Texas?

The Texas Penal Code states that a person commits the offense of burglary by:

  • Entering a habitation or building that’s not open to the public without the consent of the owner, with the intent to commit theft, assault, or a felony
  • Remaining concealed in a building or habitation without the consent of the owner, with the intent to commit theft, assault, or a felony
  • Entering a building or habitation without the consent of the owner and committing or attempting to commit theft, assault, or a felony

Burglary charges also apply to the unauthorized breaking or entering of vehicles and coin-operated machines with the intention of committing a felony or theft.

Key Elements of Burglary

The key elements of burglary are unlawful entry and the intent to commit a crime. Texas law defines “entry” as an intrusion using any part of the body or a physical object connected with it.

Unlawful entry doesn’t require physical breaking, as in smashing a window, damaging a fence, or forcing a door to open. Pushing an unlocked door with your hand and impersonating a security guard to gain access also qualify as unlawful entries.

Additionally, even if an attempted assault, theft, or felony was unsuccessful, proof of intent through circumstantial evidence or a confession can still secure a conviction.

The prosecutor must prove all elements beyond a reasonable doubt for a conviction of burglary.

Penalties for Burglary in Texas


The punishment for a burglary conviction in Texas will depend on the circumstances of the crime, including where it was committed and what crime the person intended to commit.

  • State Jail Felony: Committed in a building that’s not a habitation with the intent of theft, assault, or a felony. It includes a fine of up to $10,000 and/or a prison sentence of six months to two years. 
  • First-Degree Felony: Involves a habitation and a felony other than felony theft. Punishment includes a fine of up to $10,000 and 5 to 99 years of imprisonment.
  • Second-Degree Felony: Involves a habitation and the intent of theft or misdemeanor assault. It includes a fine of up to $10,000 and/or imprisonment for 2 to 20 years.
  • Third-Degree Felony: Involves unlawfully entering a commercial building, such as a pharmacy, hospital, or clinic, with the intent to steal a controlled substance. It includes a fine of up to $10,000 and/or imprisonment for two to ten years.

Burglary Charge Defenses

Legal defenses for burglary charges may center on the critical issue of intent. This can involve introducing evidence to show that no criminal intention was present and arguing that the unauthorized access was merely a minor incident.

For instance, a person might have mistakenly opened their neighbor’s door instead of their own door in the darkness of night after a long and tiring day at work.

If successful, this strategy can result in felony burglary charges being reduced to criminal trespassing, a lesser offense with a much more lenient penalty.

What Is Considered Criminal Trespass in Texas?

According to Section 30.05 of the Texas Penal Code, criminal trespass involves intentionally entering or remaining on or in another person’s property without consent, despite having notice that entry is forbidden or receiving a notice to depart.

This section defines “entry” as the intrusion of a person’s entire body. This means that instances like reaching your arm into someone’s car window are insufficient for a criminal trespass charge.

The Penal Code also lists all the ways that “notice” can be given:

  • Oral or written communication from the property owner or a person with authority to act on the owner’s behalf
  • Fencing or other forms of enclosure that are evidently designed to keep people out and livestock in
  • Signs on the property or building entrance that are reasonably likely to be noticed indicating that entry is forbidden
  • Purple paint marks on posts or trees that meet specific criteria
  • Visible crops grown for human consumption that is under cultivation on the property 

Penalties for Criminal Trespass in Texas


Under the Texas Penal Code, there are three penalty classifications for criminal trespass charges, which are applicable under the following circumstances:

  • Class A Misdemeanor: Involves offenses committed in a habitation, shelter center, Superfund site, critical infrastructure facility, higher education institution, or if the defendant carries a deadly weapon. It includes a fine of up to $4,000 and/or a maximum of one year in jail.
  • Class B Misdemeanor: Involves all other cases not falling under the two categories. It includes a fine of up to $2,000 and/or imprisonment for up to 180 days in jail.
  • Class C Misdemeanor: Involves offenses committed on agricultural or residential land near protected freshwater under specific criteria. It includes a fine of up to $500.

Consult an Experienced Criminal Defense Attorney in Texas

If you’ve been charged with burglary, criminal trespassing, or any other crime involving unlawful entry in Texas, consulting a qualified and capable criminal defense lawyer should be your top priority.

The professionals at The Napier Law Firm have the skill and experience to properly defend your rights and minimize any penalties or fines. 

Call 713-470-4097 and start building the best defense for your case today!