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Many people confuse the difference between burglary and theft, assuming both crimes are simply about stealing. However, Texas law treats them as distinct offenses with unique definitions and consequences. Theft involves unlawfully taking someone’s property with the intent to deprive them of it. Burglary, on the other hand, focuses on unlawful entry—into a building, home, or vehicle—with the intent to commit a crime, even if nothing is actually taken. This critical difference often affects how cases are charged, defended, and sentenced. Understanding the legal separation between burglary and theft helps clarify rights, responsibilities, and outcomes in the justice system.
What Is Theft?
Theft involves taking someone else’s property without consent and with the intent to keep it. Texas Penal Code § 31.03 defines theft as unlawfully appropriating property with intent to deprive the owner of it. The act must include both an action (taking) and a purpose (keeping it).
Common Examples of Theft
- Shoplifting from a store
- Taking a purse off a park bench
- Using someone else’s credit card to make a purchase
- Stealing tools from a neighbor’s garage
Penalties for Theft in Texas
Texas classifies theft charges based on the value of the stolen property. As the value increases, so does the punishment.
- Under $100: Class C misdemeanor
- $100 to $749: Class B misdemeanor
- $750 to $2,499: Class A misdemeanor
- $2,500 to $29,999: State jail felony
- $30,000 or more: Higher-level felonies with increased prison time
Prior convictions, use of force, or special circumstances like theft from the elderly may increase the penalties.
What Is Burglary?
Burglary involves entering a structure without permission and with intent to commit a crime inside. Texas Penal Code § 30.02 defines burglary as unlawfully entering or remaining in a building with intent to commit theft, assault, or another felony.
The key point is intent. The person doesn’t have to actually steal anything. Just entering with the intent to commit a crime qualifies as burglary.
Common Examples of Burglary
- Breaking into a house to steal electronics
- Entering a closed store after hours to commit theft
- Sneaking into a home to assault someone
- Hiding in a business after closing to commit a crime later
Types of Burglary in Texas
Texas law outlines several types:
- Burglary of a building: Entering a non-residential structure (like a storage unit)
- Burglary of a habitation: Breaking into a home or apartment
- Burglary of a vehicle: Entering a car without permission to commit a crime
- Burglary of a coin-operated machine: Tampering with vending or laundry machines
Penalties for Burglary
Burglary penalties depend on the type of structure involved:
- Building (non-residential): State jail felony
- Habitation (residence): Second-degree felony
- Habitation with intent to commit another felony (e.g., assault): First-degree felony
- Vehicle: Class A misdemeanor (or higher if repeat offense)
Punishment may include jail or prison time, fines, probation, and permanent criminal records.
Key Differences Between Burglary and Theft
Understanding how these charges differ helps clarify their legal consequences. The chart below highlights the main contrasts.
| Aspect | Theft | Burglary |
|---|---|---|
| Main Action | Taking property | Entering a place unlawfully |
| Required Intent | Deprive owner of property | Commit theft, assault, or a felony |
| Location Requirement | No specific location | Must enter a structure |
| Must Property Be Taken? | Yes | No, intent is enough |
| Common Locations | Anywhere (stores, streets) | Homes, buildings, vehicles |
| Legal Codes | § 31.03 | § 30.02 |
Why This Distinction Matters
The difference between burglary and theft can change the entire legal outcome of a case. Here’s how:
1. Sentencing Impact
Burglary charges often carry higher penalties than theft charges, even if no property was stolen. The act of unlawful entry raises the severity.
2. Burden of Proof
Prosecutors must prove intent in burglary cases. If they can’t show the person planned to commit a crime inside, the charge might not hold.
In theft cases, prosecutors must prove that the property was taken without consent and with intent to keep it.
3. Legal Defenses
Defendants in burglary cases may argue they had permission to enter or never intended to commit a crime. In theft cases, they may argue the owner gave them the item, or they intended to return it.
4. Social Stigma
Burglary often carries a stronger social stigma. It implies trespassing, privacy invasion, and sometimes violence. Theft may seem less serious to some, especially when it involves small amounts.
How Charges Can Overlap
Some situations involve both burglary and theft. For example, someone who breaks into a house and steals a TV faces both charges. In such cases, the court may stack the penalties or focus on the higher charge.
Police and prosecutors often add burglary to theft cases to increase leverage in plea deals or secure longer sentences. This adds pressure on the accused to settle out of court.
What To Do If You Face Either Charge
Anyone charged with burglary or theft in Texas should take the accusation seriously. These steps can help:
1. Avoid Speaking to Police Without a Lawyer
Many people harm their case by trying to explain or justify their actions. Stay silent until you speak with an attorney.
2. Gather Evidence
Collect messages, receipts, photos, or anything that could show you had consent or lacked criminal intent.
3. Identify Witnesses
If someone saw you with permission to enter a property or borrow an item, their testimony may help your case.
4. Understand the Charges
A lawyer can explain the difference between burglary and theft in your case and guide you on the best defense.
Final Thoughts
The difference between burglary and theft can be subtle but carries major legal weight. Theft is about taking someone’s property without permission. Burglary, by contrast, involves unlawfully entering a building or vehicle with the intent to commit a crime—whether or not anything is actually stolen. One is about the act of stealing; the other is about the intent behind an unlawful entry. Understanding this difference helps clarify criminal charges, protect your rights, and prepare you for what to expect in court.
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FAQs
Yes, if an individual unlawfully enters a building with the intent to commit a theft inside, it can be considered burglary. The unlawful entry with criminal intent distinguishes it from a standalone theft offense.
Yes, the defenses for these crimes can differ. For burglary, defenses may focus on disproving unlawful entry or intent. Theft defenses may center on issues like consent, mistaken ownership, or lack of intent to permanently deprive.
Yes, many jurisdictions classify both burglary and theft into degrees or levels based on severity. For theft, this often depends on the value of stolen property. For burglary, it can involve factors like whether the property was occupied.
If you’re facing charges for burglary or theft, it’s crucial to seek legal counsel. An experienced attorney can assess your case, explore potential defenses, and guide you through the legal process to protect your rights and interests.
In some cases, depending on the circumstances and jurisdiction, a theft charge may be subject to negotiation or reduced to a lesser offense, such as a misdemeanor, through plea bargaining or other legal strategies. Legal representation is essential in such situations.
