Austin Breaking & Entering Defense

If you have been charged with theft, breaking & entering or burglary, it is important that you consult with an experienced Austin criminal defense lawyer. From both sides, as an assistant District Attorney, to defending charges as an Austin criminal lawyer Hector Gonzalez III has handled several hundred cases involving theft crimes and has the experience and knowledge to aggressively protect your rights.

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Breaking and Entering in the Daytime
Breaking and Entering in the Nighttime for Felony
Entry of Dwelling House at Night
Larceny From a Building
Larceny of a Motor Vehicle
Larceny From the Person
Possession of Burglarious
Receiving Stolen Property
Shoplifting
Unarmed Robbery

Breaking and entering is the crime of entering a residence or other enclosed property without authorization and some element of force. If there is intent to commit a crime, this is burglary. Without an intent to commit a crime, breaking and entering by itself usually carries a charge of the crime of trespass.

There are cases of minors committing breaking and entering in recreational pursuits, unaware of the legal consequences of their offense. In many states, a minor can be charged and subject to serious penalties, including institutionalization, under a state's juvenile offender laws covering offenses such as breaking and entering. This charge may also have a lasting affect on employment and other opportunities in adulthood

Breaking can be either actual, such as by forcing open a door, or constructive, such as by fraud or threats. Breaking does not require that anything be "broken" in terms of physical damage occurring. A person who has permission to enter part of a house, but not another part, commits a breaking and entering when they use any means to enter a room where they are not permitted, so long as the room was not open to enter.

Entering can involve either physical entry by a person or the insertion of an instrument with which to remove property. Insertion of a tool to gain entry may not constitute entering by itself. Note that there must be a breaking and an entering for common law burglary. Breaking without entry or entry without breaking is not sufficient for common law burglary.

Although rarely listed as an element, the common law required that entry occur as a consequence of the breaking. For example, if a wrongdoer partially opened a window by using a pry bar and then noticed an open door through which he entered the dwelling, there is no burglary at common law. The use of the pry bar would not constitute an entry even if a portion of the prybar "entered" the residence. Under the instrumentality rule the use of an instrument to effect a breaking would not constitute an entry. However, if any part of the perpetrator's body entered the residence in an attempt to gain entry, the instrumentality rule did not apply. Thus, if the perpetrator uses the prybar to pry open the window and then used his hands to lift the partially opened window, an "entry" would have taken place when he grasped the bottom of the window with his hands.

House includes a temporarily unoccupied dwelling, but not a building used only occasionally as a habitation

Night time is defined as hours between half an hour after sunset and half an hour before sunrise

Typically this element is expressed as the intent to commit a felony “therein”. The use of the word “therein” adds nothing and certainly does not limit the scope of burglary to those wrongdoers who break and enter a dwelling intending to commit a felony on the premises. The situs of the felony does not matter, and burglary occurs if the wrongdoer intended to commit a felony at the time he broke and entered