In Texas, burglary of a habitation with intent to commit a felony is a first-degree felony under Penal Code Section 30.02, punishable by five to ninety-nine years or life in prison and up to a $10,000 fine. The charge applies when a person enters someone’s home without effective consent intending to commit any felony other than felony theft, or commits or attempts such a felony once inside. The intended crime is what drives the enhancement: assault, sexual assault, kidnapping, arson, and similar offenses all push the case from a second-degree felony into first-degree territory.
How the Statute Defines the Offense
Section 30.02 of the Texas Penal Code describes three ways a person can commit burglary of a habitation.1State of Texas. Texas Penal Code 30.02 – Burglary The first is entering the habitation without the owner’s effective consent while intending to commit a felony, theft, or assault inside. The second is remaining concealed inside with that same intent, which covers someone who enters lawfully and then hides. The third is entering without consent and then committing or attempting a felony, theft, or assault, even if there was no criminal plan at the moment of entry.
That third path catches many defendants off guard. If you walked into a home for no particular reason and formed the intent to commit a crime only after you were inside, the statute still applies.
What Counts as a Habitation
A “habitation” under Section 30.01 is any structure or vehicle adapted for overnight accommodation.2State of Texas. Texas Penal Code 30.01 – Definitions Houses and apartments qualify, and so do RVs, mobile homes, and camper trailers. Each separately secured portion is its own habitation, so an individual unit in a larger complex counts. Attached structures like a connected garage fall within the definition too.
What Counts as Entry
Entry is defined broadly. Any intrusion of any part of the body, or any physical object connected to the body, is enough. A hand through an open window qualifies. So does a tool pushed through a mail slot. This is a much lower threshold than criminal trespass, where the entire body must cross the line before entry is established.
Why “Intent to Commit a Felony” Elevates the Charge
Burglary of a habitation is a second-degree felony by default. It becomes a first-degree felony when the person entered intending to commit a felony other than felony theft, or committed or attempted such a felony once inside.1State of Texas. Texas Penal Code 30.02 – Burglary
The phrase “other than felony theft” carries a lot of weight. If someone breaks into a home to steal jewelry, even valuable jewelry, the charge stays second-degree. The escalation kicks in when the intended offense is something like:
- Assault or infliction of injury on an occupant
- Sexual assault or another sexual offense
- Kidnapping, aggravated kidnapping, or unlawful restraint
- Arson
- Any other felony beyond the theft category
You don’t have to succeed in committing the intended felony. Attempting it inside the home is enough, and so is entering with the intent, even if nothing happens once you’re inside.
How Prosecutors Prove the Intended Felony
Intent is almost never proven by a confession. Prosecutors build it from circumstantial evidence: weapons or restraints the defendant was carrying, text messages or calls that suggest a plan, the defendant’s relationship to the alleged victim, forced entry patterns, and what actually happened once the person got inside. In sexual assault cases, DNA evidence, witness testimony, and items recovered at the scene are typical. In kidnapping cases, restraints, a prepared vehicle, or communications about taking a person carry weight.
Because the intent can be inferred from the surrounding facts, a defense that focuses on breaking down those inferences, showing there was another explanation for the defendant’s presence, the items on hand, or the actions inside, is often the heart of the case.
Penalty Ranges
The punishment depends on which grade of felony the state proves.
- First-degree felony: five to ninety-nine years or life in the Texas Department of Criminal Justice, plus an optional fine up to $10,000.3State of Texas. Texas Penal Code 12.32 – First Degree Felony Punishment
- Second-degree felony (the fallback if the felony-intent element fails): two to twenty years in prison and an optional fine up to $10,000.4State of Texas. Texas Penal Code 12.33 – Second Degree Felony Punishment
Judges have discretion within those ranges. Sentences turn on the defendant’s criminal history, the harm caused, whether a weapon was used, cooperation with law enforcement, and any demonstrated remorse. A first-time defendant looks very different at sentencing than someone with prior felony convictions.
Is Probation Available
Burglary of a habitation is not on the list of Texas offenses that categorically bar probation. Both deferred adjudication and judge-ordered community supervision remain available in theory, though a first-degree charge with an intended felony like sexual assault or kidnapping is a very different sell to a court than a routine property case.
When community supervision is granted, conditions typically include regular reporting to a probation officer, drug testing, travel restrictions (leaving the county without written permission can trigger revocation), community service, and payment of any fines or restitution. A violation can send the defendant to prison for the original sentence.
Realistically, prosecutors push hard for prison time on home-invasion cases, and the odds narrow further with any prior record.
Defenses That Apply to This Charge
Every element the state must prove is a potential pressure point. The defenses below come up most often in first-degree burglary cases.
No Intent to Commit the Underlying Felony
Because the first-degree grade depends entirely on the intended non-theft felony, attacking that intent is often the highest-leverage defense. If the evidence of intent is thin, ambiguous, or built on inferences that admit an innocent or lesser explanation, the charge may drop to second-degree or fall apart entirely. Weapons carried for another reason, communications taken out of context, or a defendant’s presence explained by something other than a felonious plan can all cut against the state.
Effective Consent
The statute requires entry “without the effective consent of the owner.” If the defendant had permission to enter, or reasonably believed they did, a core element is missing. This surfaces in cases involving roommates, former romantic partners, family members, and anyone who previously had access. A key given months ago and never revoked, a standing invitation, or a shared residence can all undermine the consent element.
Illegally Obtained Evidence
The Fourth Amendment protects against unreasonable searches and seizures. If police entered a home without a warrant, searched a vehicle without probable cause, or made a stop without reasonable suspicion, a motion to suppress can exclude that evidence at trial. In burglary cases built on physical items, DNA, or statements taken after an unlawful arrest, suppression can gut the prosecution’s case.
The Structure Wasn’t a Habitation
If the building doesn’t fit the Section 30.01 definition of a habitation, the offense drops to burglary of a building, a state jail felony with a much lower punishment range.2State of Texas. Texas Penal Code 30.01 – Definitions Defense arguments here focus on whether the structure was actually adapted for overnight accommodation at the time, whether it had been abandoned, or whether it was used only for storage or business.
Alibi
Straightforward but powerful when it holds. Witness testimony, surveillance footage, cell-site data, and electronic transaction records can place the defendant somewhere other than the scene.
Collateral Consequences
A conviction reaches well past the sentence itself.
Firearms
Federal law prohibits anyone convicted of a crime punishable by more than a year in prison from possessing firearms or ammunition.5Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts Every burglary of habitation conviction triggers this ban. Texas adds Section 46.04, which bars a convicted felon from possessing a firearm for five years after release from confinement or supervision, whichever ends later. After the five years, possession is only allowed at the person’s own home.6State of Texas. Texas Penal Code 46.04 – Unlawful Possession of Firearm The federal ban has no five-year expiration and stays in place unless the conviction is expunged, pardoned, or civil rights are formally restored.7Bureau of Alcohol, Tobacco, Firearms and Explosives. Most Frequently Asked Firearms Questions and Answers
Immigration
For non-citizens, the consequences can be severe. A burglary conviction with a sentence of one year or more, including suspended sentences, may qualify as an aggravated felony under federal immigration law, making the person deportable and largely ineligible for relief from removal. Because burglary of habitation carries a minimum of two years, nearly every conviction implicates this risk. When the intended felony inside the home is itself an aggravated felony, such as drug trafficking or sexual assault, the immigration consequences attach regardless of sentence length.
Voting
A felony conviction suspends the right to vote in Texas while the person is incarcerated, on parole, or on community supervision. Once the full sentence, including supervision, is complete, the person is again eligible and can re-register.8Texas Secretary of State. Effect of Felony Conviction on Voter Registration
Record Sealing
A felony conviction shows up on background checks and can disqualify a person from jobs that require licensing, bonding, or security clearances. Texas offers nondisclosure orders that seal certain records, but eligibility depends on how the case was resolved and how much time has passed. First-degree burglary committed with intent to commit certain sex offenses against children is excluded from nondisclosure eligibility.9Texas Courts. An Overview of Orders of Nondisclosure Expunction, which destroys the record entirely, is generally only available when charges are dismissed or the defendant is acquitted.
Restitution to the Victim
A court can order a defendant convicted of burglary to pay restitution covering the victim’s actual losses: the value of stolen property that wasn’t recovered, repair costs for damaged doors, windows, or locks, and medical expenses if anyone was injured during the incident. Restitution goes to the victim or to anyone who compensated the victim, not to the state. It can be imposed alongside or as a condition of community supervision, and failing to pay can be treated as a probation violation. Even after a prison term, unpaid restitution can be enforced as a civil judgment.