Burglary of Habitation With Intent to Commit a Felony in Texas

In Texas, burglary of a habitation with intent to commit a felony is a first-degree felony punishable by five to ninety-nine years or life in prison, plus a possible fine of up to $10,000.¹ The charge sits one grade above the ordinary burglary of a habitation because the prosecution is alleging that the person entered the home planning to commit, or did commit, a felony other than felony theft, such as assault, sexual assault, kidnapping, or arson.

What the Statute Says

Texas Penal Code Section 30.02 defines burglary three ways. A person commits the offense by entering a habitation without the owner’s effective consent and with intent to commit a felony, theft, or assault; by remaining concealed inside with that intent; or by entering without consent and then committing or attempting a felony, theft, or assault once inside.²

The third path matters. The intent to commit the felony does not have to exist at the moment of entry. Walking into a home for no clear reason and then deciding to commit a felony inside satisfies the statute just as surely as planning the crime beforehand.

Why This Charge Is First-Degree, Not Second-Degree

Burglary of a habitation is a second-degree felony by default. It becomes a first-degree felony when the person entered the habitation intending to commit a felony other than felony theft, or committed or attempted such a felony once inside.²

The phrase “other than felony theft” is the hinge. A plan to steal jewelry, even expensive jewelry, keeps the charge at the second degree. A plan to commit almost anything else felonious pushes it up. The felonies that most often drive this elevation are:

Assault or injury to an occupant, whether that was the goal going in or something that happened after entry.
Sexual offenses, where prosecutors frequently rely on DNA, witness accounts, or items at the scene to establish intent.
Kidnapping or unlawful restraint, often supported by evidence like restraints or communications showing a plan.

The gap between the two grades is enormous. A second-degree conviction carries two to twenty years. A first-degree conviction carries five to ninety-nine years or life.³¹

What Counts as a Habitation

Under Section 30.01, a habitation is any structure or vehicle adapted for overnight accommodation.⁴ Houses and apartments are the obvious examples, but the definition also reaches RVs, mobile homes, camper trailers, and other vehicles where someone sleeps. Each separately secured portion is its own habitation, so an individual apartment inside a larger complex counts on its own. Attached structures like a connected garage fall within the definition too.

If the structure doesn’t qualify as a habitation, the charge drops to burglary of a building, a state jail felony with a much lighter punishment range. That makes the habitation classification one of the first elements a defense attorney will test.

What Counts as Entry

For burglary purposes, entry means any intrusion of any part of the body or any physical object connected with the body.² A hand through an open window qualifies. A tool pushed through a mail slot qualifies. The threshold is deliberately low, which is one reason the offense is charged more broadly than people expect.

How Prosecutors Prove Felony Intent

The intent to commit a felony is almost never announced, so prosecutors build it from circumstantial evidence: weapons the defendant had on them, text messages or other communications about the plan, the defendant’s relationship to the alleged victim, and what actually happened inside the home. Juries are allowed to infer intent from these surrounding facts, which is why so much of a first-degree burglary case turns on evidence that isn’t about the entry itself.

This is also why the prosecution’s theory of what the defendant intended often becomes the central fight at trial. If the state cannot prove intent to commit a felony other than theft beyond a reasonable doubt, the jury can still convict on the lesser second-degree offense, which cuts the sentencing exposure substantially.

Sentencing Exposure

A first-degree felony carries five to ninety-nine years or life, with an optional fine of up to $10,000.¹ Judges work within that range considering criminal history, the degree of harm to any victim, whether a weapon was involved, cooperation with law enforcement, and any demonstrated remorse. A first-time offender draws a very different sentence than someone with prior felony convictions.

Is Probation Possible

Burglary of a habitation is not on the list of Texas offenses that categorically bar probation. Deferred adjudication and judge-ordered community supervision remain available in theory. In practice, probation on a first-degree burglary of a habitation is a steep ask. Prosecutors routinely push for prison, and judges weighing the home-invasion nature of the offense often agree. Prior convictions make probation significantly less likely.

When community supervision is granted, conditions typically include regular check-ins with a probation officer, mandatory drug testing, travel restrictions (leaving the county without written permission can trigger revocation), community service hours, and payment of fines or restitution. A violation can send the defendant back for the original sentence.

Defenses Worth Considering

Every element the prosecution has to prove is a potential pressure point.

Lack of Intent to Commit a Felony

Because felony intent is what elevates the charge, undermining the state’s intent theory is often the most productive angle. If the evidence of what the defendant planned to do inside is thin or ambiguous, the charge may fall back to second-degree burglary or something lesser. An innocent reason for being inside, like retrieving personal belongings or checking on someone, can weaken the case further.

Effective Consent

The statute requires entry without the owner’s effective consent. If the defendant had permission to be there, or reasonably believed they did, a core element is missing.² This defense surfaces often in cases involving roommates, former romantic partners, family members, or anyone who previously had access.

Challenging the Habitation Classification

If the structure wasn’t adapted for overnight accommodation at the time of the offense, was abandoned, or was being used only for storage or business, it may not qualify as a habitation.⁴ Reclassifying the structure drops the charge grade significantly.

Suppressing Evidence

The Fourth Amendment protects against unreasonable searches and seizures. If police entered the home without a warrant, searched a vehicle without probable cause, or made a stop without reasonable suspicion, a judge can suppress whatever they found. Suppression can gut a case built on physical evidence seized at the scene or after arrest.

Alibi

If the defendant wasn’t there, nothing else matters. Witness testimony, surveillance footage, cell phone location data, and electronic transaction records can place a defendant somewhere else when the burglary occurred.

Collateral Consequences

A first-degree burglary conviction carries consequences that outlast the sentence itself.

Firearms

Federal law prohibits anyone convicted of a crime punishable by more than one year of imprisonment from possessing firearms or ammunition.⁵ Every first-degree burglary conviction triggers this ban. Texas law adds that a convicted felon cannot possess a firearm for five years after release from confinement or community supervision, whichever comes later, and after that period possession is only permitted at the person’s own home.⁶ The federal ban has no five-year expiration; it remains in effect unless the conviction is expunged or pardoned, or civil rights are formally restored.⁷

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, which makes a person deportable and largely ineligible for relief from removal. Because a first-degree burglary of a habitation carries a five-year minimum, nearly every conviction triggers this risk. If the underlying intended felony is itself an aggravated felony, such as a sexual offense, the immigration consequences attach regardless of sentence length.

Record Sealing

Texas offers nondisclosure orders that seal certain criminal records from public view. First-degree burglary committed with intent to commit certain sex offenses against children is categorically excluded from nondisclosure eligibility.⁸ For other first-degree burglary dispositions, eligibility turns on whether the case was resolved through deferred adjudication and whether the required waiting period has passed. Expunction, which destroys the record entirely, is generally only available when charges are dismissed or the defendant is acquitted.

Employment

A felony conviction appears on background checks and can disqualify a person from any job that requires licensing, bonding, or security clearance. The practical reach of that varies by industry, but the record itself is the starting problem.

1
State of Texas. Texas Penal Code 12.32 – First Degree Felony Punishment
2
State of Texas. Texas Penal Code 30.02 – Burglary
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State of Texas. Texas Penal Code 12.33 – Second Degree Felony Punishment
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State of Texas. Texas Penal Code 30.01 – Definitions
5
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
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State of Texas. Texas Penal Code 46.04 – Unlawful Possession of Firearm
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Bureau of Alcohol, Tobacco, Firearms and Explosives. Most Frequently Asked Firearms Questions and Answers
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Texas Courts. An Overview of Orders of Nondisclosure