Criminal Defense for State Jail Felony Through First-Degree Felony Charges
A burglary charge in Texas doesn’t land in one fixed category. Depending on what the prosecution alleges about the location and your intent, the same arrest can result in a state jail felony, a second-degree felony, or a first-degree felony. Each tier carries a dramatically different sentencing range. Knowing which charge tier you’re actually facing and why it was filed that way is the first real step in building a defense.
At Milam & Fanning, PLLC, we represent clients facing burglary charges throughout Waco and McLennan County. Our team combines the personalized attention you’d expect from a smaller practice with the resources a serious felony charge demands.
Founded in 2014, Milam & Fanning, PLLC has spent over a decade handling the full spectrum of Texas criminal charges, from misdemeanors to first-degree felonies. That range matters for a burglary case because the defense approach shifts considerably depending on what the state is actually trying to prove. Challenging a state jail felony based on an unlawful entry into a commercial building is a different task than defending against an allegation of entering a habitation with intent to commit a felony.
We develop a strategy tailored to the specific facts and charge tier in your case. That means reviewing the prosecution’s evidence closely, identifying constitutional or factual weaknesses early, and keeping you informed at every stage. When roadblocks appear, we work through them with clear-eyed problem-solving rather than a one-size-fits-all approach.
Where Burglary Cases Are Prosecuted in McLennan County
Burglary cases in Waco and the surrounding area are prosecuted by the McLennan County Criminal District Attorney’s Office, currently led by District Attorney Josh Tetens. Both felony and misdemeanor charges are handled through that office. Criminal proceedings take place at the McLennan County Courthouse in Waco, where cases move through bond hearings, pretrial settings, and, when necessary, trial.
Familiarity with local prosecution patterns and courthouse procedures shapes how a defense is built. We work within this jurisdiction regularly and apply that knowledge when advising clients on how to approach their cases.
Discuss Your Case with Our Criminal Defense Attorneys
The earlier you have counsel, the more options are typically available. From bond conditions to evidence review to plea negotiations, decisions made in the early weeks of a case can affect how everything unfolds later.
Under Texas Penal Code 30.02(a), burglary can be committed in three ways: entering a habitation or building not open to the public without the owner’s consent and with intent to commit a felony, theft, or assault; remaining concealed in such a structure with that same intent; or entering and actually committing or attempting to commit a felony, theft, or assault once inside.
The legal definition of “entry” is broader than most people expect. Under subsection (b), it includes intruding any part of the body or any physical object connected to the body. No broken window or forced door is required. A “habitation” covers structures or vehicles adapted for overnight use, including attached garages and separately secured portions of a building.
Burglary Penalties Under Texas Penal Code 30.02
The charge tier turns primarily on whether the structure involved is a habitation and what the alleged intent was once inside:
State jail felony: Burglary of a building other than a habitation carries 180 days to 2 years in a state jail facility and a fine up to $10,000.
Second-degree felony: Burglary of a habitation is punishable by 2 to 20 years in prison and a fine up to $10,000.
First-degree felony: When the person entered a habitation intending to commit a felony other than theft, or actually committed or attempted such a felony, the charge escalates to a first-degree felony carrying 5 to 99 years or life in prison and a fine up to $10,000.
Burglary generally carries a five-year statute of limitations under the Texas Code of Criminal Procedure, though the relevant dates in a specific case can affect how that period is calculated.
How a Felony Burglary Case Moves Through the Courts
A felony burglary case typically begins with an arrest and a bond hearing that sets release conditions. From there, the defense obtains police reports, witness statements, and other discovery materials to evaluate what the state can actually prove. Those materials shape the strategy going forward.
Most cases involve multiple court settings where plea offers are discussed, motion deadlines are set, and procedural matters are resolved. If the case doesn’t resolve through negotiation, it proceeds to trial, where a jury is selected and the state presents its evidence through witness testimony and cross-examination. Preparation at each earlier stage directly affects how the trial phase unfolds.
Common Defenses in Burglary Cases
Because burglary requires the prosecution to prove criminal intent, the intent element is a natural target for the defense. If the state can’t establish that the accused entered with the required purpose, the charge may not stand regardless of what else the evidence shows.
Other defenses depend on the specific facts of the case:
Consent or permission: Evidence that the owner authorized the entry undermines a core element of the offense.
Mistaken identity: Challenging whether the accused was actually the person involved.
Insufficient evidence: Arguing that the state’s evidence doesn’t meet the burden of proof beyond a reasonable doubt.
Fourth Amendment violations: When police conducted an unlawful search or seizure to gather evidence, a motion to suppress may result in that evidence being excluded from trial.
The right combination of defenses depends on what the state has and how the charge was constructed. We review the full record before advising on which approach gives a client the strongest position.
