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What charges might I expect for someone who walked into my

home, door was open as...
What charges might I expect for someone who walked into my home, door was open as I had construction workers here, took my cell phone and texted on my behalf?
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1/5/2015
CrimDefense
CrimDefense, CriminalDefenseAtty
Category: Criminal Law
Satisfied Customers: 28,673
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Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.
Good morning. I certainly understand the situation and your concern. They are likely to be charged with burglary of an occupied dwelling, criminal trespass, theft and depending on what they did with the phone and text messages, possible identity theft if it was something more then just sending messages. The prosecutor is going to look over the facts of the case and see what they can charge them with, as there could be numerous counts that they have to proceed on. I have provided the code below for you to review as well.
PENAL CODE
TITLE 7. OFFENSES AGAINST PROPERTY
CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS
Sec. 30.01. DEFINITIONS. In this chapter:
(1) "Habitation" means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:
(A) each separately secured or occupied portion of the structure or vehicle; and
(B) each structure appurtenant to or connected with the structure or vehicle.
(2) "Building" means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.
(3) "Vehicle" includes any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation, except such devices as are classified as "habitation."
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 30.02. BURGLARY. (a) A person commits an offense if, without the effective consent of the owner, the person:
(1) enters 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; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
(b) For purposes of this section, "enter" means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
(c) Except as provided in Subsection (d), an offense under this section is a:
(1) state jail felony if committed in a building other than a habitation; or
(2) felony of the second degree if committed in a habitation.
(d) An offense under this section is a felony of the first degree if:
(1) the premises are a habitation; and
(2) any party to the offense entered the habitation with intent to commit a felony other than felony theft or committed or attempted to commit a felony other than felony theft.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 8, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 727, Sec. 1, eff. Sept. 1, 1999.
Sec. 30.03. BURGLARY OF COIN-OPERATED OR COIN COLLECTION MACHINES. (a) A person commits an offense if, without the effective consent of the owner, he breaks or enters into any coin-operated machine, coin collection machine, or other coin-operated or coin collection receptacle, contrivance, apparatus, or equipment used for the purpose of providing lawful amusement, sales of goods, services, or other valuable things, or telecommunications with intent to obtain property or services.
(b) For purposes of this section, "entry" includes every kind of entry except one made with the effective consent of the owner.
(c) An offense under this section is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 62, Sec. 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 30.04. BURGLARY OF VEHICLES. (a) A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft.
(b) For purposes of this section, "enter" means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
(c) For purposes of this section, a container or trailer carried on a rail car is a part of the rail car.
(d) An offense under this section is a Class A misdemeanor, except that:
(1) the offense is a Class A misdemeanor with a minimum term of confinement of six months if it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this section; and
(2) the offense is a state jail felony if:
(A) it is shown on the trial of the offense that the defendant has been previously convicted two or more times of an offense under this section; or
(B) the vehicle or part of the vehicle broken into or entered is a rail car.
(d-1) For the purposes of Subsection (d), a defendant has been previously convicted under this section if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision.
(e) It is a defense to prosecution under this section that the actor entered a rail car or any part of a rail car and was at that time an employee or a representative of employees exercising a right under the Railway Labor Act (45 U.S.C. Section 151 et seq.).
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1999, 76th Leg., ch. 916, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 308 (H.B. 1887), Sec. 1, eff. September 1, 2007.
Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so.
(b) For purposes of this section:
(1) "Entry" means the intrusion of the entire body.
(2) "Notice" means:
(A) oral or written communication by the owner or someone with apparent authority to act for the owner;
(B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock;
(C) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden;
(D) the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:
(i) vertical lines of not less than eight inches in length and not less than one inch in width;
(ii) placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground; and
(iii) placed at locations that are readily visible to any person approaching the property and no more than:
(a) 100 feet apart on forest land; or
(b) 1,000 feet apart on land other than forest land; or
(E) the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.
(3) "Shelter center" has the meaning assigned by Section 51.002, Human Resources Code.
(4) "Forest land" means land on which the trees are potentially valuable for timber products.
(5) "Agricultural land" has the meaning assigned by Section 75.001, Civil Practice and Remedies Code.
(6) "Superfund site" means a facility that:
(A) is on the National Priorities List established under Section 105 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Section 9605); or
(B) is listed on the state registry established under Section 361.181, Health and Safety Code.
(7) "Critical infrastructure facility" means one of the following, if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders:
(A) a chemical manufacturing facility;
(B) a refinery;
(C) an electrical power generating facility, substation, switching station, electrical control center, or electrical transmission or distribution facility;
(D) a water intake structure, water treatment facility, wastewater treatment plant, or pump station;
(E) a natural gas transmission compressor station;
(F) a liquid natural gas terminal or storage facility;
(G) a telecommunications central switching office;
(H) a port, railroad switching yard, trucking terminal, or other freight transportation facility;
(I) a gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas; or
(J) a transmission facility used by a federally licensed radio or television station.
(8) "Protected freshwater area" has the meaning assigned by Section 90.001, Parks and Wildlife Code.
(9) "Recognized state" means another state with which the attorney general of this state, with the approval of the governor of this state, negotiated an agreement after determining that the other state:
(A) has firearm proficiency requirements for peace officers; and
(B) fully recognizes the right of peace officers commissioned in this state to carry weapons in the other state.
(10) "Recreational vehicle park" has the meaning assigned by Section 13.087, Water Code.
(11) "Residential land" means real property improved by a dwelling and zoned for or otherwise authorized for single-family or multifamily use.
(c) Repealed by Acts 2009, 81st Leg., R.S., Ch. 1138, Sec. 4, eff. September 1, 2009.
(d) An offense under this section is:
(1) a Class B misdemeanor, except as provided by Subdivisions (2) and (3);
(2) a Class C misdemeanor, except as provided by Subdivision (3), if the offense is committed:
(A) on agricultural land and within 100 feet of the boundary of the land; or
(B) on residential land and within 100 feet of a protected freshwater area; and
(3) a Class A misdemeanor if:
(A) the offense is committed:
(i) in a habitation or a shelter center;
(ii) on a Superfund site; or
(iii) on or in a critical infrastructure facility; or
(B) the person carries a deadly weapon during the commission of the offense.
(e) It is a defense to prosecution under this section that the actor at the time of the offense was:
(1) a firefighter or emergency medical services personnel, as defined by Section 773.003, Health and Safety Code, acting in the lawful discharge of an official duty under exigent circumstances;
(2) a person who was:
(A) an employee or agent of:
(i) an electric utility, as defined by Section 31.002, Utilities Code;
(ii) a telecommunications provider, as defined by Section 51.002, Utilities Code;
(iii) a video service provider or cable service provider, as defined by Section 66.002, Utilities Code;
(iv) a gas utility, as defined by Section 101.003, Utilities Code, which for the purposes of this subsection includes a municipally owned utility as defined by that section;
(v) a gas utility, as defined by Section 121.001, Utilities Code;
(vi) a pipeline used for the transportation or sale of oil, gas, or related products; or
(vii) an electric cooperative or municipally owned utility, as defined by Section 11.003, Utilities Code; and
(B) performing a duty within the scope of that employment or agency; or
(3) a person who was:
(A) employed by or acting as agent for an entity that had, or that the person reasonably believed had, effective consent or authorization provided by law to enter the property; and
(B) performing a duty within the scope of that employment or agency.
(f) It is a defense to prosecution under this section that:
(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and
(2) the person was carrying a concealed handgun and a license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun.
(g) It is a defense to prosecution under this section that the actor entered a railroad switching yard or any part of a railroad switching yard and was at that time an employee or a representative of employees exercising a right under the Railway Labor Act (45 U.S.C. Section 151 et seq.).
(h) At the punishment stage of a trial in which the attorney representing the state seeks the increase in punishment provided by Subsection (d)(3)(A)(iii), the defendant may raise the issue as to whether the defendant entered or remained on or in a critical infrastructure facility as part of a peaceful or lawful assembly, including an attempt to exercise rights guaranteed by state or federal labor laws. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the increase in punishment provided by Subsection (d)(3)(A)(iii) does not apply.
(i) This section does not apply if:
(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and
(2) the actor at the time of the offense was a peace officer, including a commissioned peace officer of a recognized state, or a special investigator under Article 2.122, Code of Criminal Procedure, regardless of whether the peace officer or special investigator was engaged in the actual discharge of an official duty while carrying the weapon.
(j) Repealed by Acts 2009, 81st Leg., R.S., Ch. 1138, Sec. 4, eff. September 1, 2009.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1979, 66th Leg., p. 1114, ch. 530, Sec. 3, eff. Aug. 27, 1979; Acts 1981, 67th Leg., p. 2385, ch. 596, Sec. 1, eff. Sept. 1, 1981; Acts 1989, 71st Leg., ch. 139, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 308, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 24, Sec. 1, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 1229, Sec. 1, 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 161, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 169, Sec. 1, 2, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 765, Sec. 1, 2, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 16.002, 21.001(94), eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1078, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1178, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 14B.001, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1093 (H.B. 2110), Sec. 3, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1337 (S.B. 9), Sec. 20, eff. June 18, 2005.
Acts 2005, 79th Leg., Ch. 1337 (S.B. 9), Sec. 21, eff. June 18, 2005.
Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 17.001(61), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 17.002(13), eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 1138 (H.B. 2609), Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1138 (H.B. 2609), Sec. 2, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1138 (H.B. 2609), Sec. 3, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1138 (H.B. 2609), Sec. 4, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 20.001, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 564 (S.B. 701), Sec. 1, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 613 (S.B. 1268), Sec. 1, eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1302 (H.B. 3142), Sec. 12, eff. June 14, 2013.
Sec. 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN. (a) A license holder commits an offense if the license holder:
(1) carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and
(2) received notice that:
(A) entry on the property by a license holder with a concealed handgun was forbidden; or
(B) remaining on the property with a concealed handgun was forbidden and failed to depart.
(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.
(c) In this section:
(1) "Entry" has the meaning assigned by Section 30.05(b).
(2) "License holder" has the meaning assigned by Section 46.035(f).
(3) "Written communication" means:
(A) a card or other document on which is written language identical to the following: "Pursuant to Section 30.06, Penal Code (trespass by holder of license to carry a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun"; or
(B) a sign posted on the property that:
(i) includes the language described by Paragraph (A) in both English and Spanish;
(ii) appears in contrasting colors with block letters at least one inch in height; and
(iii) is displayed in a conspicuous manner clearly visible to the public.
(d) An offense under this section is a Class A misdemeanor.
(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.
Please let me know if you have any follow up questions or need any clarification on something which I stated above. Also, remember to rate my service before exiting the site, so I can receive credit for my help. I hope you found it to be Excellent! Only rate my answer when you are 100% satisfied. If you feel the need to click either of the two lower ratings to the left, please stop and reply to me. I want to make sure your experience with the site was as pleasurable as possible and that you are satisfied with the help I provided.
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Customer reply replied 2 years ago

The phone was only used for texting and calling one person representing themselves as me and giving derogatory information.

Thank you for the additional information. What exactly was said and was anyone damaged as a result of it? Just trying to get an idea of what they wanted to accomplish.
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Customer reply replied 2 years ago

It was a made up story about my family's Christmas and an OB/gyn visit to a significant other.

If you suffered damages as a result of this defamation, you could have possible grounds for a civil lawsuit and seek recovery, if you were injured as a result of this. It is certainly something to address with the prosecutor assigned to the case but defamation is more of a civil issue, not criminal but they may be able to tie in a criminal charge since this was done from a stolen cell phone and they misrepresented you.
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Customer reply replied 2 years ago

And when should I expect to hear from the prosecutor?

Was this reported to the police? If so, how long ago?
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Customer reply replied 2 years ago

No it was not.

If it was never reported to the police, then it must be done. The reason why I say this is because the police would investigate the matter and gather the evidence and if there is enough to proceed, they will then turn the case over to the State for prosecution. If this was never reported to the police or anyone regarding the theft, then no action would be taken. As such, file a police report today to start the case. Please let me know if there is anything else, as I would be happy to respond. If not, please remember to rate my help, so I can get credit for my answer.
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Customer reply replied 2 years ago

One last question, roughly what would the sentence/fine be if he were convicted with just the acts committed - leaving defamation of character out? As far as I know he has no criminal record.

He could be facing felony charges but based upon the facts which you described above and that he is a first time offender, the State would likely impose a probationary sentence, along with restitution, fines and court costs. The restitution would be the amount to make you whole from your loss and the fines/ court costs could be a few hundred dollars.
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Customer reply replied 2 years ago

That is what I needed to know, thanks for your help!

You are welcome and best of luck with the situation. If you could rate my help at this time, it would be greatly appreciated. Thank you again.
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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