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My AccountChapter 30
- 30.1 Burglary Generally; Culpable Mental States
- 30.2 Note on Definition of “Habitation”
- 30.3 Instruction—Burglary of Building by Entry with Intent to Commit Offense
- 30.4 Instruction—Burglary of Building by Entry and Commission of Offense
- 30.5 Instruction—Burglary of Habitation by Entry with Intent to Commit Offense
- 30.6 Instruction—Burglary of Building by Entry with Intent to Commit Offense or Entry and Commission of Offense
- 30.7 Burglary of a Vehicle Generally
- 30.8 Instruction—Burglary of a Vehicle
- 30.9 Statutory Framework of Criminal Trespass
- 30.10 Lesser Included Offense Analysis and Relationship between Trespass and Burglary
- 30.11 Culpable Mental State Analysis of Criminal Trespass
- 30.12 Terminology: “Of Another” and “Ownership”
- 30.13 Instruction—Criminal Trespass by Entering Building
- 30.14 Instruction—Criminal Trespass by Entering Habitation—Class A Misdemeanor
- 30.15 Instruction—Criminal Trespass by Remaining in Building
Comment
The definition of “habitation” in Tex. Penal Code § 30.01(1)(B) includes within that term “each structure appurtenant to or connected with [a] structure or vehicle [adapted for the overnight accommodation of persons].” This definition applies to both burglary and criminal trespass.
The Committee concluded that for purposes of both burglary and criminal trespass, the definition in the instructions should not use the phrase appurtenant to. That phrase is not widely understood, at least as it is used in the statute.
Jones v. State, 690 S.W.2d 318 (Tex. App.—Dallas 1985, pet. ref’d), upheld a conviction of burglary of a habitation based on entry into an unheated garage unconnected to the house. The court explained:
Because the term “appurtenant” is not defined in the statute, we must construe it according to its generally accepted usage. “Appurtenant” is defined in Black’s Law Dictionary 94 (rev. 5th ed. 1979) as “belonging to; accessory or incident to; adjunct, appended or annexed to.... A thing is ‘appurtenant’ to something else when it stands in relation of an incident to a principal and is necessarily connected with the use and enjoyment of the latter.” Under this definition, the garage can be said to be “appurtenant to” the residence here. It is “necessarily connected with the use and enjoyment” of the house, and it is secondary or “incident to” the principal building, the house.
Jones, 690 S.W.2d at 319 (citations omitted). Jones has been followed in other cases. See Andrus v. State, 495 S.W.3d 300, 305 (Tex. App.—Beaumont 2016, no pet.) (open garage and breezeway were part of habitation); Shakesnider v. State, 477 S.W.3d 920, 922–23 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (rejecting defendant’s sufficiency challenge to burglary of habitation conviction where detached garage was nine to ten steps from house it served); Darby v. State, 960 S.W.2d 370, 371–72 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (rejecting defendant’s sufficiency challenge to his conviction for burglary of habitation where evidence showed that unattached garage was approximately nine feet from home).
The instructions define “habitation” without the phrase appurtenant to and in terms taken from Jones.