Background
A Montgomery County grand jury charged Joely Jannine Keen with bestiality, alleging that she knowingly engaged in contact between her mouth and a dog’s genitals. A jury convicted Keen of the state-jail felony in November 2024 and sentenced her to 180 days in state jail.
Evidence used at trial came from a cellphone belonging to Keen’s husband, William. Police confiscated the phone when they arrested William, and he later supplied its passcode. Keen moved to suppress evidence obtained from the phone, arguing in part that it was a household or community-owned item and that the search warrant was overbroad. She also sought an instruction under Texas Code of Criminal Procedure article 38.23 and moved for a mistrial after a detective testified that she did not give an interview when arrested.
The Court’s Holding
The court affirmed the conviction. It held that Keen lacked Fourth Amendment standing to challenge the search of her husband’s cellphone because the record supported implied findings that William owned the phone and that Keen had no reasonable expectation of privacy in its contents. Keen presented no evidence that the phone belonged to her or that she exercised complete dominion and control over it.
The court also upheld the denial of an article 38.23 jury instruction because Keen did not present evidence raising an affirmatively contested factual issue material to the legality of the cellphone search. Finally, the trial court did not abuse its discretion by denying a mistrial over the detective’s testimony that Keen did not give an interview. Keen did not request an instruction to disregard, did not show that such an instruction would have been inadequate to cure any prejudice, and inadequately briefed the issue on appeal.
Key Takeaways
- A defendant cannot challenge the search of another person’s cellphone without showing a personal, reasonable expectation of privacy in the device or its contents.
- Marriage, shared payment of household bills, and occasional ability to use a spouse’s phone did not establish ownership, dominion, or control sufficient for Fourth Amendment standing on this record.
- An article 38.23 instruction requires an affirmatively contested factual issue material to the lawfulness of obtaining the evidence, while a mistrial generally is unavailable when an instruction to disregard could cure the alleged prejudice.
Why It Matters
The decision underscores that privacy rights in digital devices are personal and do not automatically extend to a spouse’s cellphone based on marriage or asserted community ownership. A defendant seeking suppression must develop evidence showing her own protected privacy interest in the device searched.
The opinion also illustrates the importance of creating a factual dispute to obtain an article 38.23 instruction and of requesting an instruction to disregard before seeking the extraordinary remedy of a mistrial.