Full Opinion

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-24-00396-CR ________________ JOELY JANNINE KEEN, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________________________________ On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 24-03-04751-CR ________________________________________________________________________ MEMORANDUM OPINION In November 2024, a jury convicted Joely Jannine Keen of the offense of bestiality, a state jail felony, and sentenced her to 180 days in state jail. See Tex. Penal Code Ann. §§ 12.35 (state jail felony punishment), 21.09(b) (bestiality offense). In three issues, Keen challenges her conviction. She challenges the denial of her Motion to Suppress evidence obtained from her husband’s cell phone, the denial of her request for a jury instruction under Texas Code of Criminal Procedure 1 article 38.23, and the denial of her request for mistrial. As discussed more fully below, we affirm the trial court’s judgment. Background In May 2024, a Montgomery County grand jury indicted Keen on one count of bestiality and alleged that Keen knowingly engaged in an act involving contact between her mouth and the genitals of an animal, a dog.1 Id. § 21.09(b). Before trial, Keen filed a Motion to Suppress. In the Motion, Keen generally challenged any and all evidence seized or obtained because of illegal acts that violated Keen’s constitutional and statutory rights. She contended that the State’s evidence was obtained without a valid search warrant and without probable cause to believe Keen engaged in criminal activity. She asserted that any statements were the result of illegal custodial interrogations and that any statements, written or oral, were without probable cause, absent warnings, involuntary, and without an understanding of her rights. In November 2024, Keen’s jury trial began, and outside the jury’s presence, Keen challenged the search warrant of the cell phone. The trial judge stated that he would carry any motion to suppress issues with the trial and decide them at the end of the State’s case. The trial judge asked Keen if she had standing to challenge the 1 An amended indictment was later filed to change the date of the alleged offense to the correct year. 2 search of the cell phone since it was not her phone. Though the State argued that evidence of ownership and control was required to challenge the search, Keen argued that it was a household item. The trial judge stated that it would be discussed more as the case proceeded, then the jury entered the courtroom for trial to begin. The State first called a special victims unit detective with the Montgomery County Constable’s Precinct 3 to testify about his involvement in the investigation, and Keen requested to voir dire the witness when testimony regarding the search warrant for the cell phone began. Keen began to question the detective about the arrest of Keen’s husband, William, when the trial judge stated that the subject matter of William’s arrest would not be discussed in front of the jury and Keen could “do a bill” at the conclusion of the detective’s testimony. Keen argued that a bill at the close of the testimony would be too late to “adequately defend this case for Mr. Keen,” but the trial court stated that it would not be too late because he would be ruling on the motion to suppress at the conclusion of the State’s case-in-chief. During the detective’s testimony, the trial court admitted a certified copy of the search warrant for the cell phone over Keen’s objection. The State called three other witnesses; all were officers and county employees involved in the investigation. After the State’s case-in-chief, the State rested, and Keen then called two witnesses to testify, herself and her son. The defense then rested after the two witnesses. 3 Once the defense witnesses finished testifying and the defense rested, the parties and trial court began discussing the jury charge. The trial judge then overruled Keen’s Motion to Suppress and denied her request for an article 38.23 instruction. After deliberating, the jury found Keen guilty of bestiality as alleged in the indictment, and the punishment phase of trial began. During the punishment phase, the State did not call any witnesses but offered all evidence admitted in the guilt/innocence phase. Keen’s son and sister testified for the defense. The jury then sentenced Keen to 180 days in state jail. This appeal followed. Issue One: Motion to Suppress In her first issue, Keen argues that William’s cell phone was seized and “tampered with” before officers received a search warrant. Keen contends she has standing to challenge the warrantless seizure of William’s cell phone and a reasonable expectation of privacy. She then argues that the warrant to review William’s cell phone was general and overbroad and went beyond the four corners of the affidavit because the probable cause was to look for evidence of crimes against children. Keen also asserts that as William’s wife, both she and William as “husband and wife” have “community ownership” of the cell phone. 4 The State challenges Keen’s issue with several arguments including Keen’s failure to preserve error, lack of standing to challenge the warrant and search, and that the warrant properly allowed the search and seizure. We review a trial court’s denial of a motion to suppress under a bifurcated standard of review. See Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013), abrogated on other grounds by Igboji v. State, 666 S.W.3d 607, 615 (Tex. Crim. App. 2023); see also Lopez v. State, 610 S.W.3d 487, 494 (Tex. Crim. App. 2020). We review de novo questions of law and mixed questions of law and fact that do not rely on credibility determinations. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). We afford almost total deference to a trial court’s determination of historical facts reasonably supported by the record and its resolution of mixed questions that turn on credibility and demeanor. See Lopez, 610 S.W.3d at 494. At a suppression hearing, the trial court is the sole trier of fact and judge of the witnesses’ credibility and the weight to be given the testimony, and the trial court may choose to believe or disbelieve all or part of a witness’s testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007) (citation omitted). We must uphold the trial court’s ruling on a motion to suppress if the ruling was supported by the record and was correct under any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). 5 Before determining whether Keen has a privacy right, we must first determine whether she has standing to challenge the warrant to search William’s phone. A person has “standing” to contend that a search or seizure was unreasonable if (1) she has a subjective expectation of privacy in the place or object searched, and (2) society is prepared to recognize that expectation as “reasonable” or “legitimate.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) (“Any defendant seeking to suppress evidence obtained in violation of the Fourth Amendment must first show that he personally had a reasonable expectation of privacy that the government invaded. He must prove that he was a ‘victim’ of the unlawful search or seizure. He has no standing to complain about the invasion of someone else’s personal rights.”). The “standing” doctrine ensures that a person may only claim that his own rights have been violated, and he cannot assert that he is entitled to benefit because the rights of another have been violated. State v. Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). “A person’s constitutional right to be free from unreasonable searches is a personal right that cannot be asserted vicariously.” Id. (citation omitted). “Courts have held that (1) a person has a subjective expectation of privacy in the contents of his cell phone, and (2) this expectation of privacy is one that society recognizes as reasonable and legitimate.” Id. at 405-06 (citations omitted). The Court of Criminal Appeals has explained that a “person’s subjective expectation of privacy 6 in a cell phone that he owns and possesses is supported by decades of cases on ‘standing.’” Id. at 406. Here, the record reflects that the cell phone at issue did not belong to Keen. During discussions with the trial judge, Keen argued that the phone was a household item, the bill was paid together, and that Keen could use the phone. However, the search warrant for William’s cell phone indicates that on March 13, 2024, police arrested William, confiscated the cell phone that he had, and secured the cell phone in a property box. William later provided the passcode for the cell phone and the officer put the cell phone in airplane mode. Additionally, during trial, Keen’s attorney repeatedly referred to the cell phone as William’s cell phone and presented no evidence that the cell phone belonged to Keen. Keen did not present any evidence that William’s cell phone belonged to her, or that she ever exercised complete dominion and control over it. The record supports implied findings that William, and not Keen, owned the cell phone, Keen had no reasonable expectation of privacy in the contents of the cell phone, and therefore did not have Fourth Amendment standing. See Granville, 423 S.W.3d at 405; Chavez v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000) (“Appellant lacks standing to complain about the seizure of the cocaine because [the police officer] did not obtain the cocaine in violation of appellant’s rights.”); Fuller v. State, 829 S.W.2d 191, 202 (Tex. Crim. App. 1992), overruled on other grounds by Castillo v. State, 913 S.W.2d 529, 534 n.2 (Tex. Crim. App. 1995) (explaining 7 that a complaint of illegal search and seizure is a privilege personal to the wronged person and is not available to anyone else); Grant v. State, 531 S.W.3d 898, 901 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (“[A]lthough appellant purchased the phone, the trial court reasonably could have concluded that appellant did not own it at the time it was stolen because he had given it to [another person] and thus had relinquished any property or possessory right in the phone.”). We hold that because Keen lacked standing, the trial court properly denied her motion to suppress to the extent that it was based on the search of William’s cell phone. We overrule issue one. Issue Two: Jury Instruction Request In her second issue, Keen argues that the trial court erred when it denied her request for a jury instruction tailored to Texas Code of Criminal Procedure article 38.23. See Tex. Code Crim. Proc. Ann. art. 38.23. According to Keen, the jury heard evidence on how the pictures and videos were gathered by law enforcement, and the question of whether the evidence was properly obtained was a fact issue. Article 38.23 requires a jury instruction only if there is a general dispute about a material fact. See Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007); see also Tex. Code Crim. Proc. Ann. art. 38.23. There are three requirements that a defendant must establish to trigger an article 38.23 instruction: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be 8 affirmatively contested; and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Id. Here, the trial judge denied Keen’s motion to suppress, and we have held that Keen lacked standing to challenge the search warrant and search of William’s cell phone. Though Keen requested an article 38.23 jury instruction, Keen presented no evidence to the jury that raised an issue of fact related to the search of the cell phone or its ownership. Therefore, we hold that the trial judge properly denied Keen’s request for an article 38.23 jury instruction. We overrule issue two. Issue Three: Denial of Mistrial Request In her final issue, Keen argues that she was entitled to a mistrial when the State alluded that she had an opportunity to give an interview to law enforcement but chose not to. According to Keen, the State is prohibited from using her post- arrest silence against her as an admission of guilt or embarrassment. We review a trial court’s denial of a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). “A mistrial is the trial court’s remedy for improper conduct that ‘is so prejudicial that expenditure of further time and expense would be wasteful and futile.’” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (citation omitted). “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Id. (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)). 9 Generally, instructions to the jury are considered sufficient to cure any improprieties that may have occurred during trial. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). We assume the jury followed the trial court’s instructions. Id. During redirect questioning of Montgomery County Constable Precinct 3 Detective Walter Dyches at trial, the State asked Dyches if Keen gave an interview at the time of her arrest. Dyches responded that she did not and the State passed the witness. At that point, Keen’s attorney asked to approach the bench and during the bench conference he stated that the State’s question went directly to Keen’s right to remain silent. Her attorney objected to the question and moved for a mistrial. The trial judge denied the request for mistrial, and the State explained that she was only clarifying that Keen was not interviewed. At that point the bench conference ended, and the witness was dismissed once Keen’s attorney stated that he had no questions. Although Keen argues that the State attempted to use her decision to not speak with the officer against her, and that the jury may have interpreted her silence as an admission of guilt or embarrassment, Keen fails to demonstrate how an instruction to disregard would not have cured any prejudice and a mistrial was the only remedy. The record reflects that Keen did not request an instruction to disregard or furnish any legal analysis in support of her assertion that a mistrial was the only cure. Not only did Keen fail to request an instruction, but also, she inadequately briefed her issue on appeal. See Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008) 10 (affirming that the court has no obligation “to construct and compose” a party’s “issues, facts, and arguments with appropriate citations to authorities and to the record[]”); see also Tex. R. App. P. 38.1(f), (h). Because Keen has not shown that an instruction to disregard would not have cured the question and Dyches’ response, the trial court did not abuse its discretion by denying her motion for mistrial. Accordingly, we overrule issue three. Conclusion Having considered and overruled all of Keen’s issues, we affirm the trial court’s judgment. AFFIRMED. W. SCOTT GOLEMON Chief Justice Submitted on July 10, 2026 Opinion Delivered October 28, 2026 Do Not Publish Before Golemon, C.J., Johnson and Wright, JJ. 11