By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
Texas Penal Code Section 30.02(a)(1) governs burglary. That offense is committed where a person without the effective consent of the owner enters a habitation or a building (or any portion of a building not open to the public) with the intent to commit a felony, theft, or assault.
While the statute may seem very air-tight on the surface, a bit of digging shows there are all sorts of potential legal issues with regards to what is or is not a burglary for any given set of circumstances.
An extremely difficult element for the State to prove in a burglary is identity if the defendant is arrested somewhere other than the place alleged to have been burglarized. Rules restrict the prosecution’s use of co-conspirator testimony, and photo line-ups of accused people can also be overly suggestive and thrown out.
Another difficult element for the State to prove is often the element of intent to commit a felony, theft or assault. The prosecution will invariably point to surrounding circumstances such as equipment brought by the accused and what the accused was alleged to have done. Obviously a skilled criminal defense attorney can demand a jury acquit the accused where the only evidence is of entry into the habitation or building — but no evidence of the further intent.
Other defenses are apparent with just a bit of digging. For instance the term “effective consent” is given a legal definition under Tex.Pen.C. 1.07(a)(19) and includes not only the owner of the building or habitation, but also a person legally authorized to act for the owner.
The terms “building” and “habitation” are also specifically defined by statute. A building is any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use. A habitation is a structure or vehicle that is adapted for overnight accommodation of persons.
Sadly, often burglary cases are often part and parcel of drug problems by the accused. While an aggressive criminal defense lawyer is fighting the legal aspects of the case, part of the attorney’s role as counselor is to make sure that if there are collateral substance issues — that those are non-judgmentally addressed so that punishment can be mitigated if the case gets to a Judge or Jury.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice about any legal matter you should consult an attorney directly.