Thursday, May 10, 2007

Burglary of a Habitation: Scope of Consent

Issue:

Does a defendant commit burglary of a habitation—even though the owner consented to his presence in the habitation but limits the rooms for which the defendant has consent to enter—by entering a room for which he has not received consent to enter and commits a theft?

Short Answer:


Yes. The owner of a habitation has the right to limit the scope of her consent for the people who enter her home. Therefore, even if a defendant was lawfully present within a habitation, if the owner of the habitation limits her consent to specific rooms within the habitation and the defendant enters a room for which he did not receive consent to enter and commits a theft, then he is guilty of burglary.

Discussion:

To commit the offense of burglary, a person must, “without the effective consent of the owner . . . enter[] a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault. . . .” Tex. Pen. Code Ann. § 30.02 (Vernon 2003). But if the owner of the building or habitation consents to the entry of the defendant, then the defendant is not guilty of burglary. Britton v. State, 145 S.W.2d 878, 878 (Tex. Crim. App. 1940). Consent to enter can be given either expressly or implicitly. Eppinger v. State, 800 S.W.2d 652, 653 (Tex. App.—Austin 1990, pet. ref’d). But the owner of a building or habitation can limit the scope of her consent for another to enter by “time, place, and purpose” restrictions. Grinage v. State, 634 S.W.2d 863, 866 (Tex. App.—San Antonio 1982, pet. ref’d); see generally Tatum v. State, 649 S.W2d 139 (Tex. App.—Fort Worth 1983, pet. ref’d). Therefore, even if a building is generally open to the public, a person commits burglary if he enters an inner room of the building if the owner’s scope of consent has been limited to specific times, places, or purposes and does not include that room.[1] Williams v. State, 537 S.W.2d 936, 937 (Tex. Crim. App. 1976); Davidson v. State, 216 S.W. 624, 626 (Tex. Crim. App. 1919).

In Williams, at about 2:00 in the morning, a defendant entered a hospital chaplain’s office through the open outer doors of the visiting minister’s office. 537 S.W.2d at 937. Once the defendant was inside the office, he entered an interior office and stole several items. Id. The chaplain testified the inner offices were not open to the public at 2:00 in the morning. Id. The Court of Criminal appeals held, even assuming the outer offices were open to the public, the defendant still committed burglary by entering the inner office and committing a theft. Id. That is, because the scope of consent to enter the chaplain’s offices was limited by place restrictions—only the outer offices were open to the public—and time restrictions—the inner offices were not open during the early morning hours—the defendant did not have effective consent to enter the offices.

Although in Williams it was considering the burglary of a building, the Court of Criminal Appeals did not limit the legal rule it announced to buildings. The court said, “Burglary may be committed by entering a room which is closed, although the outer doors of the house are open.” Id. (citing Babcock v. State, 473 S.W.2d 941 (Tex. Crim. App. 1971); Davidson v. State, 216 S.W. 624 (Tex. Crim. App. 1919) emphasis added). Additionally, the Penal Code defines habitation as “a structure . . . that is adapted for the overnight accommodation of persons and includes each separately secured or occupied portion of the structure. . . .” Tex. Pen. Code Ann. § 30.01(1) (Vernon 2003) emphasis added. Even though the Texas Court of Criminal Appeals has not considered whether the owner of a habitation can limit the scope of his consent to specific times, places, or purposes within the habitation, it appears that it will uphold the conviction of any person convicted for a burglary when the owner limits the scope of his consent to specific times, places, or purposes.

And one court of appeals has upheld a defendant’s conviction for burglary when the owner limited the scope of her consent by securing her bedroom with a padlock. See generally Allison v. State, 113 S.W.3d 476 (Tex. App. Houston [1st Dist.] 2003, no pet.). In Allison, the defendant had been divorced from the victim of the burglary, and his children were living with their mother, the victim. Id. at 477. On the morning of the burglary, the defendant knocked on the door of the victim’s habitation and one of his children let him in and invited him to watch television. Id. The victim was not home but had installed a padlock on her bedroom door to conceal several Christmas presents from her children, and she was the only person with a key to unlock the door. Id.

The defendant persuaded his children to go to a nearby store, and he and an accomplice broke into the victim’s bedroom and stole a new phone and the comforter off the victim’s bed. Id. Additionally, the defendant stole the television and several items which were not located in the victim’s bedroom. Id. During his trial for burglary, the defendant argued he had received consent to be in the habitation and could not be convicted of burglary. Id. at 478. The Houston Court of Appeals rejected his claim by citing the Penal Code’s definition of habitation and explaining a habitation includes “each separately secured or occupied portion of the structure.” Id. (citing Tex. Pen. Code Ann. § 30.02(1)(A)). The court held the victim limited the scope of her consent by securing her bedroom with a padlock and her consent for the defendant to enter the home did not extend to her bedroom. Id at 478. And the court upheld the defendant’s conviction for burglary of a habitation. Id.


Conclusion:

A defendant commits burglary of a habitation—even though the owner consented to his presence in the habitation but limits the rooms for which the defendant has consent to enter—by entering a room for which he has not received consent to enter and commits a theft.

End Note

[1] But an owner cannot limit the purpose of her consent by saying, “Well, he had permission to enter my home as he pleased, but he didn’t have my permission to steal anything.” Jones v. State, 236 S.W.2d 805 (Tex. Crim. App. 1951); Britton v. State, 145 S.W.2d 878, 878 (Tex. Crim. App. 1940); Eppinger v. State, 800 S.W.2d 652, 653-54 (Tex. App.—Austin 1990, pet. ref’d).

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