ELIZABETH YOUNG, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 14, 2010
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00267-CR
............................
ELIZABETH YOUNG, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-81664-06
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OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Morris
        After the trial court denied her motion to suppress evidence of the stored messages on a cell phone, Elizabeth Young pleaded guilty to three counts of sexual assault of a child. The trial court deferred adjudicating appellant's guilt and placed her on ten years' probation for each count. She now contends on appeal that the trial court erred in denying the motion to suppress.
Factual Background
        Appellant, a friend of the fifteen-year-old complainant's parents, checked the complainant out of his public high school thirteen times between August and October 2005. The complainant's parents had no idea she was doing this and did not become aware of the situation until they began investigating the decline in the complainant's academic performance in October 2005. When they realized what had occurred, they deleted appellant's name from the list of people who could remove him from school. They then contacted each of the boy's teachers to let them know about the situation and requested that the teachers notify them immediately if they noticed any odd behaviors in the complainant.
        Jennifer Redden, the complainant's math teacher during the 2005-2006 school year, testified that she confiscated a cell phone from the complainant during her class two times during the fall of that year. In February 2006, she again confiscated a cell phone from appellant during class at approximately 11:40 a.m. because she could see that he was sending or receiving text messages on the phone. Class ended at noon, and by 12:05 that afternoon Redden had a voice message from appellant on her classroom phone. On the message, appellant claimed that the complainant was her son's friend and that the confiscated cell phone belonged to her husband. She continued, “My husband will kill me if he knows that [the complainant] has it. I will pay you for it. . . .” She requested that Redden call her back.
        Redden recalled meeting with the complainant's parents in October 2005 about their concerns that a family friend had been checking him out of school without their knowledge, and she became suspicious. She saw the school's principal in the cafeteria and confirmed that it was appellant who had previously been checking the complainant out of school without his parents' knowledge. The principal told her it was school policy for a student's parent to pick up a confiscated cell phone. When Redden returned to the classroom, she switched on the cell phone, found text messages of a sexual nature on the phone, and contacted police. Redden later learned that appellant had left her a second message at 12:30 requesting that Redden return her call. In addition, she learned that while she was out of her classroom making a police report later in the day, a woman had called her classroom phone two more times asking to speak to her.
        The complainant's mother testified that she and her husband paid the bills for appellant's cell phone service. She testified that the complainant had a problem with breaking and losing cell phones, so she was not aware of what type of phone he was using when it was confiscated from him in February 2006. The complainant testified that the phone belonged to appellant and that she bought it with her own money. He admitted he was not with appellant when the phone was purchased. The complainant stated that appellant let him “borrow” the phone until he got money to buy his own phone. He stated, “Her husband did use it and he did buy it for her or she did buy it for him, but I was using it until I got a phone.”
        The complainant acknowledged that he switched the phone service to his own number and used it as his personal cell phone once he received it, approximately one to two weeks before Redden took it from him. He claimed the phone was appellant's “so she could use it whenever she wanted.” According to an affidavit filed by the complainant in support of the motion to suppress, the complainant told Redden the phone did not belong to him. He further testified in the affidavit that he believed and expected that the text and voice conversations recorded on the phone were private and confidential.
        In her own affidavit filed in support of the motion to suppress, appellant testified:
 
        On the 1st day of October, 2005, I received a phone call from [the complainant]. He told me that my phone had been confiscated. He told me that he told the teacher that the phone was not his. I decided to call the teacher and get my phone back.
        I was not able to speak with the teacher. I did leave a message on her phone that explained to her the fact that the phone that she confiscated from [the complainant] was mine and he had told her that the phone was mine. I asked her to call me back to make arrangements for its return.
        Later I was asked to the police station to discuss the contents of my phone. In the phone were many text messages that were authored by me. I did not consent for anyone except [the complainant] to see my messages to [the complainant]. They were private conversations and I expected the messages to be treated as if they were confidential and private.
 
        The complainant's high school had a policy in place for the students' use of cell phones in class. On the first offense, the phone is confiscated and returned to the student's parent. On the second and third offenses, the confiscated phone is not returned to the student's parent until the parent pays a fifteen dollar fine. On the fourth offense, the confiscated phone is retained by the school for the rest of the school year, to be returned at the end of the school year with the payment of an additional fifteen dollar fine.
        At the conclusion of the hearing on appellant's motion to suppress, the trial court ruled that appellant had standing to challenge the search of the phone as a joint possessor of it. The court further ruled, however, that Redden had sufficient cause to search it. Following the court's ruling, appellant entered her guilty pleas.
Discussion
        In her sole issue on appeal, appellant complains the trial court erred when it denied her motion to suppress the results of the search of the cell phone. She argues the search violated her protections against unreasonable searches and seizures under the constitutions of Texas and the United States. Because we conclude appellant did not have standing to contest the search, we resolve her sole issue against her.
         It was appellant's burden to establish her standing to challenge the search. See Davidson v. State, 249 S.W.3d 709,725 (Tex. App.-Austin 2008), cert. denied, 129 S. Ct. 1345 (U.S. 2009). Whether a defendant has standing to contest a search and seizure is a question of law, which we review de novo. See Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006). A defendant possesses standing to challenge a search only when that defendant has a legally protected right to the expectation of privacy. To determine whether a defendant has a reasonable expectation of privacy in an item searched by the government, we use a two-pronged method.   See Footnote 1  First, we ask whether the defendant had a subjective expectation of privacy in the item searched. If the answer is yes, we then ask whether the defendant's expectation of privacy is one that society recognizes as objectively reasonable or justifiable under the circumstances. See id. at 925-26 (citing Smith v. Maryland, 442 U.S. 735 (1979)).
        To determine whether the defendant's claim of privacy is objectively reasonable we consider: (1) whether the defendant had a property or possessory interest in the item invaded; (2) whether she legitimately possessed the item; (3) whether she had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, she took normal precautions customarily taken by those seeking privacy; (5) whether she put the item to some private use; and (6) whether her claim of privacy is consistent with historical notions of privacy. See Smith v. State, 176 S.W.3d 907, 913 (Tex.App.-Dallas 2005, pet. ref'd). None of the factors is dispositive; instead, we examine the circumstances surrounding the search in their totality. Id. The test of legitimacy is not whether the defendant chose to conceal an activity she asserts was private, but instead whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment. See California v. Ciraolo, 476 U.S. 207, 212 (1986).
        In appellant's case, it is clear from her affidavit and the affidavit of the complainant that she believed she had an expectation of privacy in the cell phone. Assuming that to be the case, we must still determine whether that expectation is one that society recognizes as objectively reasonable or justifiable under the circumstances. To begin, the record indicates appellant had some property interest in the phone, although it appears it may have actually been purchased by or for her husband. She was not in the possession of the phone when it was confiscated. Moreover, according to Redden's account of events, when she discovered the confiscation, she stated in her voice message to Redden that the phone belonged to her husband, who would “kill” her if he discovered she had given it to the complainant. She did not have complete dominion over the phone or the right to exclude others; to the contrary, the record contains no evidence showing she insisted that the complainant - a teenage boy who had already lost more than one cell phone - prevent others from using or viewing the phone or protect the information inside with a password. According to the complainant, she simply retained the right to get it back if she asked for it.
        The precautions appellant took to protect her privacy in the phone were minimal. The complainant never testified that he was to use the phone for voice or text exchanges with appellant only. And, according to Redden, when appellant called to request the return of the phone, she claimed it belonged not to her but to her husband. She did not put the phone to private use; instead she gave it to the complainant to use as long as he needed it. He changed the phone's number to his own, and his parents paid for the service. Finally, we do not see how appellant's claim of privacy is consistent with historical notions of privacy. The phone was essentially a gift she had at least temporarily relinquished with no strings attached.
        Based on the record before us, we conclude appellant's claimed expectation of privacy is not objectively reasonable or justifiable under the circumstances. Thus, we conclude appellant did not have standing to challenge the search of the complainant's cell phone. We therefore conclude the trial court did not err in denying appellant's motion to suppress the results of the search. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). We resolve appellant's sole issue against her.
        We affirm the trial court's order deferring appellant's adjudication of guilt.
 
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JOSEPH B. MORRIS
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47 090267F.U05
 
Footnote 1 In this case, the agent of the government was Redden, the public school teacher.