Fort Worth Burglary Lawyer | Arlington Residential Burglary Defense (2023)

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Charged with Burglary in Fort Worth, Texas?

Are you or someone you know facing aburglary of a habitation or burglary of a building charge in Fort Worth, Arlington, or a surrounding city in Tarrant County? If so, you need an experienced Fort Worth Criminal Lawyer to make sure you do not become a victim of the system. It is critical that you hire an experienced and aggressive criminal attorney in Fort Worth that specializes in criminal defense. As a former prosecutor, I have seen hundreds of these cases and will make sure to build a strong defense on your behalf.

When analyzing a burglary charge in Texas, the first thing you should determine is whether a building or a home or habitation was involved. Why? Texas criminal law designates the severity of the criminal charge based upon the structure allegedly burglarized. Let us examine each crime.

What Is The Sentence For Burglary Of A Habitation In Texas?

Burglary of a Habitation is categorized as a second-degree felony in Texas. A second-degree felony is punishable by a term in prison of not less than two years but not more than twenty years and a fine not to exceed $10,000. If you have been previously convicted of a felony crime and sentenced to a term in prison, you could be facing an enhanced charge of a first-degree felony, punishable by a term in prison of five years to life or 99 years and a fine of up to $10,000.

What Are The Elements Of The Crime Of Burglary of a Habitation?

Burglary of a Habitation is a property crime in Texas that is penalized more seriously than theft. Why? Because it normally involves the intent to commit theft from someone’s residence. As such, many district attorney’s offices take a tough stance on this crime. This makes it critically important to work with a criminal defense attorney with a proven track record of obtaining favorable results for their clients charged with burglary of a habitation. When examining the elements of the crime, we must look to the Texas Penal Code.

Under Texas Penal Code, Section 30.02, the State of Texas must prove beyond a reasonable doubt the following elements:


It must be proven that the accused entered a habitation of another with the intent to commit theft, assault, or another felony.

The most common type of burglary of a habitation is when someone breaks into someone’s home and steals valuables. Technically, an actual theft does not have to occur to be charged with burglary of a habitation. The prosecutor is only required to prove that the accused entered the residence with the intent to commit theft or another felony.

In practice, let us be honest – if someone did not commit a theft while in another person’s residence without their consent, it becomes a more difficult case for the prosecutor to prove in a jury trial. Why? The best evidence of someone’s intent is their behavior and if there is no completion of the act of theft, it may be much easier for your criminal defense lawyer to establish reasonable doubt regarding your criminal intent. For example, if it turns out that you were in someone else’s house and accused of burglary of a habitation, without evidence of intent to commit theft, your charge could be lowered to the lesser misdemeanor offense of criminal trespass of a habitation, a Class A Misdemeanor, punishable by a term in the county jail of up to 1 year and a fine of up to $4,000.

What Is Considered A “Habitation” For The Crime of Burglary Of A Habitation?

Under Texas criminal law, a “habitation” refers to the alleged victim’s primary residence, secondary residence, or any property in which an individual resides. If the property were not being occupied by a resident, it would be categorized as burglary of a building, a lesser felony crime. However, the prosecutor is not required to prove that the residence was occupied continuously.

What Are The Elements of Burglary Of A Habitation With Intent To Commit Assault In Texas?

Most people think of the crime of burglary of a habitation as being solely an issue of someone stealing something from someone’s home. However, you can also be charged with the crime of burglary of a habitation if there was intent by the accused to commit assault against the victim.

More specifically, Under Texas Penal Code, Section 30.02, if the State of Texas can prove beyond a reasonable doubt that you entered a habitation of another with the intent to commit assault, sexual assault, kidnapping, aggravated assault, or robbery, you could be facing a first-degree felony, punishable by a prison sentence of a minimum of five years up to 99 years or life and a $10,000 fine. Obviously, this type of criminal charge is not a trivial matter, and you must collaborate with an experienced criminal attorney that can prepare a winning defense strategy for your case.

Legal Defenses To Burglary Of A Habitation

If you have been arrested and charged with burglary of a habitation in Texas, you must educate yourself on winning legal defenses under Texas law. Let us examine a few legal defenses to the crime of burglary of a habitation.

(Video) Theft? Robbery? Burglary? A Former DA Explains The Law And Defenses! (2021)

Consent To Enter And Remain In The Residence

What if a theft or assault took place in a residence but the accused had permission, whether express or implied, to enter and remain in the residence? Regardless of the criminal act committed in a residence, if the prosecutor cannot prove beyond a reasonable doubt that the accused lacked consent to enter and/or remain in the residence, the crime of burglary of a habitation will not be proven.

For example: a man comes over to visit his ex-wife and see his biological children. The ex-wife allows him into the residence and an argument ensues. She begins yelling at him and claims he entered into the residence with the intent to assault her and calls the police. Even if the man did assault her, can the police establish that he lacked consent to enter the residence? No! There may be a crime of domestic violence assault in this example, but the police will have a tough time establishing probable cause for the crime of burglary of a habitation with intent to commit assault.

Lack Of Criminal Intent To Commit Theft Or Other Felony

What if someone is not permitted to enter into an alleged victim’s residence but no theft or assault has taken place? What if the homeowner arrives to find someone in their house but nothing has been stolen or moved around? Can the crime of burglary of a habitation be proven? Proving the crime in these instances will hinge on proving the element of intent to commit theft or other felony.

For example: we have represented citizens that entered the wrong residence because they were drunk or confused and walked around inside the residence and the homeowner understandably panicked and called the police and had them arrested for burglary of a habitation. Did they have the criminal intent to commit theft or other felony? NO! At most, they committed the crime of criminal trespass, a lesser misdemeanor crime with no possibility of prison. It is critical that your criminal defense attorney thoroughly explore the facts of your case do determine if there is sufficient evidence to establish criminal intent to commit theft or other felony.

Reasonable Doubt

(Video) Varghese Summersett: Your Only Choice in Criminal Defense | 817-203-2220

The accused is never required to prove anything in a jury trial. The burden of proof to establish every element of the crime of burglary of a habitation always rests on the State of Texas the prosecutor’s office. The best criminal attorneys know that every reasonable doubt that can be established in a legal defense provides leverage to negotiate a more favorable result for their clients. Do not just assume the police reports and other evidence are accurate!

Grand Jury Presentations – Burglary Of A Habitation

What if your criminal defense attorney obtains the evidence on the case and determines there are problems with the prosecutor proving the case beyond a reasonable doubt? What if you have supplemental evidence that will show the police reports are inaccurate or unreliable? What if you have witness statements showing a different perspective or establishing exculpatory evidence? In this instance, your criminal lawyer MUST make a presentation to the grand jury.

The grand jury is a panel of twelve citizens that listen to hundreds of felony criminal cases per week to determine if probable cause exists to substantiate the case. In most instances, the grand jury only hears one side of the story from the prosecutor and will approve the case as a felony, known as a true bill. However, if your criminal defense attorney collaborates with you to prepare a grand jury presentation packet, the grand jury will have the opportunity to hear the other side of the story and could resolve your case in a favorable manner.

The grand jury, after hearing your evidence presentation, could lower the charge to a lesser misdemeanor offense. It is always easier to resolve a misdemeanor than a felony. Even more beneficially, the grand jury could no bill your case. A no bill is the equivalent of dismissing your criminal case, thereby making you eligible for an expunction of your criminal record.

Is Burglary Of A Building A Felony In Texas?

Yes. Under Texas criminal law, Burglary of a building is labeled a state jail felony, punishable by a term in a state jail facility of not less than 180 days but not more than 2 years.

Under Texas Penal Code, Section 30.02, a person commits the offense of burglary of a building if, without the effective consent of the owner, the person enters a building not then open to the public, with intent to commit a felony, theft or an assault or remains concealed, with intent to commit a felony, theft, or an assault in a building or enters a building and commits or attempts to commit a felony, theft or assault.

What Is The Sentence For Burglary Of A Building In Texas?

(Video) Fort Worth Criminal Defense Attorney

For a first-time offender, the maximum sentence for a burglary of a building is 2 years in a state jail facility. However, if the accused has multiple prior state jail facilities or a single TDC conviction for which they served prison time, the charge can be enhanced from a state jail felony crime to a third degree or second-degree felony.

Can You Get Probation For Burglary Of A Building In Texas?

It is always possible to obtain probation for burglary of a building in Texas. However, every case is unique and there are several factors that will determine whether probation is an option for you:

  1. Are you a first-time offender? If you have prior criminal history, probation may not be an option
  2. How aggravating are the facts of the case? If items stolen or the assault was violent, your attorney may have a challenge obtaining probation
  3. What Texas county are you in? Some Texas counties are less likely to offer probation than others, even for first-time offenders.
  4. Restitution – if you are able to provide restitution as part of the plea process, it dramatically increases the probability of a probation.

Should You Consider Probation For Burglary Of A Building In Texas?

At the Fulgham Law Firm, we work tirelessly to protect our clients from every taking a plea deal that puts their freedom or future at risk. Our goal is always to get a criminal case dismissed. If you are innocent of the allegations, you should work with a criminal defense attorney that will work tirelessly to clear your name.

However, even if probation makes sense for you, it is important to make certain that you consider deferred adjudication probation rather than straight probation. If you take a plea deal for straight probation, you will not be eligible to have your arrest or charge removed from your criminal record. However, if you accept a plea offer for deferred adjudication and you successfully complete the terms and conditions of the deferred probation, you will be eligible for a non-disclosure to seal your criminal record.

Fort Worth Burglary Charges Attorney

If you have been arrested and charged with Burglary in Fort Worth, Arlington or in Tarrant and surrounding counties, you need a skilled criminal attorney with experience. At the Fulgham Law Firm P.C. my goal is to prevent jail time and to achieve a result that makes sure you can someday clear your record.

(Video) Jason Howard | Fort Worth Criminal Defense Attorney

At theFulgham Law Firm will find a Fort Worth criminal law practice with a team of Former Prosecutors with over 80 years of experience and over 500 criminal trials focused on passionately defending the accused. Contact my Fort Worth office now at 817-886-3078 for a free and confidential consultation with an experiencedFort Worth criminal attorney.


How many years can you get for burglary of habitation in Texas? ›

If the building is a habitation, then a conviction for Burglary is punished as a Felony of the Second Degree,3 with a maximum possible fine under Texas state law of up to $10,000 and prison time of up to 20 years, unless the enhancement below applies.

What type of entry is necessary for a burglary under PC 459? ›

You can commit PC 459 burglary by entering a structure through an open or unlocked door or window. You can even commit burglary by entering an open business. There does not need to be forced entry or trespassing. The exception to this rule is burgling a vehicle (also known as auto burglary).

What is 1st degree burglary in Texas? ›

First-degree felony.

A person commits a first-degree felony when burglary involves a habitation and a felony other than felony theft (such as felony assault, sexual assault, or kidnapping).

What does burglary of habitation mean in Texas? ›

Sec. 30.02. BURGLARY. ( a) A person commits an offense if, without the effective consent of the owner, the person: (1) enters 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; or.

What is the 7 year rule in Texas? ›

In the state of Texas, criminal background checks generated by an employer can go back seven years into an applicant's criminal and personal history. There are, however, some exceptions to this rule.

Can you get probation for burglary of habitation in Texas? ›

A typical burglary of a habitation case in Texas is a second-degree felony, punishable by two to 20 years in prison, with the possibility of probation in specific circumstances.

What evidence can be found at a burglary scene? ›

They take photographs and physical measurements of the scene, identify and collect forensic evidence, and maintain the proper chain of custody of that evidence. Crime scene investigators collect evidence such as fingerprints, footprints, tire tracks, blood and other body fluids, hairs, fibers and fire debris.

What is the most essential element of burglary? ›

Burglary, on the other hand, is defined as the unlawful entry into a building, combined with the intent to steal property or commit a felony. The two parts - unlawful entry and intent of theft/felony - are the essential elements of a burglary.

What makes you a target for burglary? ›

As for what burglars want to see when checking a house, they look for a property that has easy access to enter and exit without being seen. Here are some of the other things they look for: Unlocked windows and doors, open windows, doggy doors, and open garages are all signs a home may be easy to enter.

Do first time felony offenders go to jail in Texas? ›

If you've been charged with a first-time misdemeanor or felony offense, there's a chance you could face incarceration, fines, probation, and a criminal record. However, depending on the circumstances of your case, you may be eligible for a first-time offender program in Texas (also known as pretrial diversion).

What are the three elements that make up burglary? ›

Under the Code the required elements for burglary are:
  • (1) A person entering;
  • (2) A building, occupied structure, or separately secured portion thereof of another; and.
  • (3) With the purpose to commit a crime therein.

What are the three classification of burglary? ›

The UCR Program has three subclassifications for burglary: forcible entry, unlawful entry where no force is used, and attempted forcible entry.

What is the maximum sentence for burglary? ›

A person guilty of aggravated burglary shall on conviction on indictment be liable to imprisonment for life.

Is burglary of a habitation a 3G offense in Texas? ›

Section Article 42A0. 54 lists aggravated robbery and burglary of a habitation to commit a felony other than theft as a 3G offense.

Do police investigate home burglary? ›

TWO thirds of burglaries are not properly investigated because police cannot cope with the increase in crime on Britain's streets. The number of unsolved cases has spiked form 47 percent to 64 percent in the past two years and in some areas nine out of 10 cases are closed without any action.

What is a Rule 11 in Texas? ›

Rule 11 of the Texas Rules of Civil Procedure lets lawyers and parties to any lawsuit enter into a written agreement on any subject matter of the lawsuit.

What is a Rule 12 motion in Texas? ›

Rule 12 of the Texas Rules of Judicial Administration provides for public access to certain records made or maintained by a judicial agency in its regular course of business but not pertaining to its adjudicative function.

What is Rule 109a in Texas? ›

Order on Motion for Other Substituted Service – Rule 109a

The officer executing the citation shall state on the return the manner in which service is accomplished and shall attach any evidence showing the result of the service.

What is the minimum sentence for a felony in Texas? ›

Just below the capital felonies category is the first-degree felonies category. These felonies carry a mandatory minimum sentence of 5 years incarceration. Generally, a conviction for a first-degree felony means you potentially face 5 to 99 years or life imprisonment.

How long can a felony case stay open in Texas? ›

Statute of Limitations: Felonies and Misdemeanors

three years for felonies, and. two years for misdemeanors.

Do you automatically go to jail for violating probation in Texas? ›

In many cases, when an individual violates straight probation, they will be ordered to serve the remainder of their sentence behind bars. In some cases, you may have to serve the entire maximum sentence.

Is a witness statement enough to convict? ›

What is reassuring for defendants is that whilst a signed statement from a complainant is enough for a charge, it is not necessarily enough to secure a conviction. The complainant must be able to convince the jury or magistrates that the defendant is guilty beyond reasonable doubt.

What are the 4 types of evidence? ›

Discussed below are the four types of evidence you should know.
  • Real Evidence.
  • Testimonial Statements.
  • Demonstrative Evidence.
  • Documentary Evidence.
15 Oct 2021

How is a burglary investigated? ›

These include interviewing the victim, the preliminary investigator, the arresting officer, and witnesses; interrogating the suspect; examining the scene of the crime; linking the suspect with the crime; recovering property; coordinating police activities; and preparing the supplemental case report.

What makes a house attractive to burglars? ›

Doors and windows with vulnerable locks are a common access point for burglars. If loosening or bypassing them is simple, then it makes getting inside easy. Garage doors and pet doors are both open passages where burglars can get through quickly, too. Quick departure is another plus for burglars.

What is the most common entry point for burglars? ›

These are the most common points of entry for home break-ins:
  • Front door: 34% of burglars twist the doorknob and walk right in.
  • First-floor windows: 23% use a first-floor open window to break into your home.
  • Back door: 22% come in through the back door.
  • Garage doors: 9% gain entrance through the garage.

Which type of burglary is most common? ›

A majority of burglaries involved forcible entry, though about one-third occur as a result of what the FBI terms unlawful entry, which includes entering through an open door or window. But 57% of burglaries involve forcible entry, and another 6% involve attempted forcible entry.

Which houses do burglars avoid? ›

For this reason, burglars usually avoid two story homes, since these items will more than likely be upstairs in the master bedroom and burglars like to minimize the time they stay in a home. For this same reason, burglars usually avoid apartments located on the higher floors.

How can I make my house impossible to break into? ›

Here are 11 easy ways to secure your home
  1. Set up a security system.
  2. Secure the doors.
  3. Lock the windows.
  4. Light up the landscape.
  5. Don't forget the garage.
  6. Lock down your Wi-Fi network.
  7. Eliminate hiding places.
  8. Add security cameras.

How can you tell if someone has scoped your house? ›

How to tell if someone is casing your home
  1. Strange Cars Parked in Your Neighborhood. ...
  2. Strangers Walking Down Your Street. ...
  3. People Pretending to Conduct a Survey. ...
  4. People Pretending to Sell You Something. ...
  5. Strangers With an Emergency or in Need of Help. ...
  6. Strangers Taking Pictures of Your Home. ...
  7. Random Flyers Showing Up on Your Door.
21 Aug 2019

Can you get probation for a felony in Texas? ›

Felony probation is a criminal sentence in Texas. Defendants facing a criminal charge for a felony can be sentenced to felony probation if they are convicted. That probation sentence can be in lieu of jail time. It can also reduce the amount of jail time that has to be served.

Can you get probation for a state jail felony in Texas? ›

5. Is probation an option for state jail felonies? Defendants facing state jail felony charges can be sentenced to probation, instead of jail time.

Can you get probation for a 1st degree felony in Texas? ›

Probation can be an option for certain first degree felony convictions in Texas. Probation is an alternative to serving time in jail. Some defendants convicted of first degree felonies can be put on probation rather than sent to prison. Probationers have to meet all of the requirements of their probation.

What is Wharton's rule? ›

Wharton's Rule

A criminal offense that requires two parties cannot be the object of a conspiracy that consists of two parties. This rule is called Wharton's rule, or the concert of action rule (USLegal, 2011). However, a statute can expressly criminalize a conspiracy to commit any crime, abrogating the rule.

What are the two most striking aspects of burglary? ›

The two most striking aspects of burglary are its frequency and economic impact. Unlike the other types of burglaries, disorganized burglaries are deliberately committed when some particular person is present. In most states, breaking into cars, recreational vehicles, and trailers constitutes burglary.

What are the characteristics of a burglar? ›

Common Characteristics

Your average burglar is generally non-violent, unemployed or retired and a repeat offender. He probably works alone, lives not too far away and may just be doing it for the thrill. He also selects his targets ahead of time, including visiting his victim.

What type of behavior is burglary? ›

Burglary is now defined as the unlawful breaking and entry (trespass) onto another person's property with the specific intent to commit a felony crime on the victim's premises. Although the felony crime intended to be committed may be a violent offense, most often the intended felony is larceny.

Is burglary a serious crime? ›

Dangerousness A burglary offence under section 9 Theft Act 1986 is a serious specified offence within the meaning of chapter 5 of the Criminal Justice Act 2003 if it was committed with the intent to (a) inflict grievous bodily harm on a person, or (b) do unlawful damage to a building or anything in it.

Is burglary a felony or misdemeanor? ›

Burglary is a felony, even when the intended crime is a misdemeanor, and the intent to commit the crime can occur when one "enters or remains unlawfully" in the building, expanding the common-law definition. It has three degrees. Third-degree burglary is the broadest, and applies to any building or other premises.

Can you get a suspended sentence for burglary? ›

ii) If the court imposes a term of imprisonment of between 14 days and 2 years (subject to magistrates' courts sentencing powers), it may suspend the sentence for between 6 months and 2 years (the 'operational period').

What are the Defences for theft? ›

What defence is there against a theft charge?
  • Mistaken identity – i.e. you were not involved in the theft.
  • You did not intend to permanently deprive the victim of the item stolen – and therefore the offence does not count as theft.
  • You only played a limited role in the offence.

Can a person go to jail for burglary? ›

The maximum sentence for burglary equates to 14 years in prison, although aggravated burglary, when the perpetrator is armed with a firearm, can lead to a life sentence.

Is jail time mandatory for 3rd degree felony in Texas? ›

THIRD DEGREE FELONY PUNISHMENT. (a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.

Can a 3rd degree felony be dropped to a misdemeanor in Texas? ›

Whether you're in Travis County, Williamson County, or any other county in Texas, a felony case can be dropped down to a misdemeanor. So, can a felony case be dropped down to a misdemeanor? Yes, yes it can.

What time of day do most residential burglaries occur? ›

Knowing when most burglaries occur is powerful information. The most common times for break-ins occur between 10 am and 3 pm. Rather than being guarded by night, most burglars choose the daytime to attempt a break-in, targeting homes when they believe no one will be present.

How do I know if my house is being targeted for burglary? ›

  1. Unknown vehicles on the street. ...
  2. Strangers walking around the neighbourhood. ...
  3. Knocking on doors pretending to offer services. ...
  4. Faking emergencies to gain access. ...
  5. Taking a picture of your house and nearby areas. ...
  6. Leaving flyers at the door.

How long can you get for house burglary? ›

❖ The sentencing guideline range is from a community order up to 6 years in prison. The court should decide the category of offence.

Does a felony go away after 7 years in Texas? ›

In California, Colorado, Kansas, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New York, Texas, and Washington, a felony will not show up on a record after seven years no matter what. In every other state, however, the information is present on the record forever.

What is the most serious type of burglary? ›

What Is First-Degree Burglary? The first degree of burglary is the most severe and covers all residential and commercial burglaries. More specifically, it means breaking and entering a dwelling or a commercial building with the intent of committing either a violent crime or theft.

Do burglars come back a second time? ›

Unfortunately, after one “successful” burglary, intruders are likely to come back and target the same home again. Some studies show that only 1.2% of burgled residences experienced 29% of all burglaries. Repeat burglaries also often occur quickly after the first one—25% within one week and 51% within one month.

What is a minimum sentence? ›

Mandatory minimum sentencing laws require judges to administer prison terms of a particular length for people convicted of certain federal and state crimes.

What felonies Cannot be expunged in Texas? ›

Crimes That Cannot Be Expunged in Texas

In fact, most offenses that involve children, sexual assault, and violent acts such as criminal assault, are not eligible for record sealing in Texas including but not limited to: Capital Murder. Indecency with a Child. Aggravated Kidnapping.

Can felony charges be dropped in Texas? ›

The prosecutor can dismiss or drop the charges when there are errors in the criminal complaint. Prosecutor's discretion. In rare cases, a prosecutor may dismiss criminal charges when there are extenuating circumstances.

Will a felony show up on a background check after 10 years in Texas? ›

The records must show that during the past 20 years for a felony, and the past 10 years for a class A or B misdemeanor, the person has not been convicted of, or sentenced to deferred adjudication for, an offense against a person or a family, an offense against property, or public indecency.


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