Conclusion Having overruled all of Appellant's points, we affirm the judgment of the trial court. v. << (2012)

Court of Appeals of Texas, Waco.

As the State correctly points out, however, Appellant has no standing to complain that the seizure of Ashley's cell phone––which, the record shows, she voluntarily relinquished to law enforcement––violated Appellant's constitutional rights.  Proof of a “reasonable expectation of privacy” is at the forefront of all Fourth Amendment claims.  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 violated.  Id.;  see Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428 (1978) (noting that the issue of standing involves two inquiries:  first, whether defendant has alleged an “injury in fact”;  second, “whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties”).  One does not have standing to complain about the invasion of someone else's personal rights.  Kothe, 152 S.W.3d at 59 (citing United States v. Salvucci, 448 U.S. 83, 84–85, 100 S.Ct. 2547, 2549 (1980)).  Only after a defendant has established his standing to complain may a court consider whether he has suffered a substantive Fourth Amendment violation.  Id.;  Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). Appellant has not shown that he personally had a reasonable expectation of privacy in Ashley's cell phone or the text messages recorded on it.  See Villarreal, 935 S.W.2d at 138.  The record shows that officers asked Ashley for her cell phone and that she gave it to them.  Appellant presented no evidence showing that he had any ownership interest in the messages he sent to Ashley or that he took any steps to keep the messages private once he sent them to her phone.  Accordingly, we hold that Appellant has failed to meet his burden to show that he personally had a reasonable expectation of privacy that the government violated, and we overrule his first point.  See Kothe, 152 S.W.3d at 59. In Appellant's second point, he argues that because Ashley was a co-defendant who had invoked her right not to testify at Appellant's trial, he did not have a chance to cross-examine her about the circumstances under which she had given her phone to the police and was therefore denied his constitutional right to confront a witness against him.  The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.”  U.S. Const.  Amend.  VI;  see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004).  But the Confrontation Clause is not implicated when a criminal defendant's own incriminating statements are used against him.  See, e.g.,Vasquez v. Kirkland, 572 F.3d 1029, 1037 (9th Cir.2009) (noting that the Fifth Amendment's right against self incrimination and not the Sixth Amendment's right to confront witnesses is implicated by use of a defendant's own statement), cert. denied, 130 S.Ct. 1086 (2010);  United States v. Brown, 441 F.3d 1330, 1358–59 (11th Cir.2006) (holding that admitting defendant's own statement did not violate Confrontation Clause because “a party cannot seriously claim that his or her own statement should be excluded because it was not made under oath or subject to cross-examination”), cert. denied, 549 U.S. 1182 (2007);  United States v. Lafferty, 387 F.Supp.2d 500, 511 (W.D.Pa.2005) (“Inherent in Justice Scalia's analysis in the Crawford opinion was the idea that the right of confrontation exists as to accusations of third parties implicating a criminal defendant, not a criminal defendant implicating herself.”).  Furthermore, in the Crawford line of cases, the Supreme Court held that the Confrontation Clause was violated by a trial court's admitting statements that were testimonial hearsay.  The statements Appellant claims the trial court erroneously admitted were his own statements recorded on Ashley's cell phone.  By definition, a party's own statements offered against that party are admissions by a party-opponent––they are not hearsay.  See Tex.R. Evid. 801(e)(2).  Because Appellant's rights under the Confrontation Clause were not violated by the admission of his own statements recorded on Ashley's cell phone, we overrule Appellant's second point. Jury Argument In his third point, Appellant contends that the trial court erred by denying his motion for mistrial after sustaining one objection and instructing the jury to disregard and by overruling a second objection to remarks the prosecutor made during her closing argument.  Appellant claims that by using the words, “I find” and “I hope,” as set out below, the prosecutor improperly and harmfully “interjected her personal feelings in the final arguments” and that her interjection caused Appellant harm. MS FERGUSON [for the State]:  I'm not even going to waste your time talking about the page [in the jury charge] on manslaughter and talking about how this might be a reckless act because I find that insulting.  MR. RAY [for Appellant]:  Excuse me.  I object to what she finds. THE COURT:  Sustained.  MR. RAY:  Ask the jury to be instructed to disregard that.  THE COURT:  Jury will disregard.  MR. RAY:  It's the second time she's done it.  I didn't object the first time.  I would respectfully ask for a mistrial.  THE COURT:  Overruled.  MR. RAY:  Thank you.  MS FERGUSON:  This is capital murder and nothing else.  Capital murder is the only proper verdict in this case, because he knowingly did these acts by doing what he did.  By slamming her against whatever he slammed her against, anyone would know as a mother, as a parent, anyone would know that you can't do that and not harm your child.  You can't do that and not kill your child.  Elena Contreras was two months old when she died.  She didn't have a chance against this Defendant;  her father.  And I hope that by seeing fractures–– MR. RAY:  Excuse me.  She's interjecting her personal feelings, a third time.  THE COURT:  Overruled.  MR. RAY:  Thank you.  MS. FERGUSON:  The fractures, everything you've heard from all the witnesses, all of the doctors, the autopsy reports, the CPS workers, they all believe this is capital murder.  The first remark that Appellant contends was an improper interjection of the prosecutor's personal feelings into the argument is “I find that insulting.”  The trial court sustained Appellant's objection, instructed the jury to disregard but denied Appellant's request for mistrial.  The issue, therefore, is whether the trial court erred by denying a mistrial.  Even if we were to assume the prosecutor's remark was improper, we cannot conclude that it was within that class of highly prejudicial and incurable errors that warrants the extreme remedy of a mistrial.  See Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.2009) (“A mistrial is an appropriate remedy in ‘extreme circumstances' for a narrow class of highly prejudicial and incurable errors.”).  This is especially true in view of the trial court's prompt instruction to disregard, which in the absence of evidence to the contrary, we presume the jury followed.  See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.), cert. denied, 484 U.S. 905 (1987).  We overrule Appellant's third point as it relates to the first complained-of remark. As far as the second remark, Appellant's objection swiftly cut it off before it was completed, so we cannot tell what it was going to be.  All the prosecutor got out before Appellant rose to object was “I hope that by seeing fractures––”.  While we can assume the prosecutor was not going to say “I hope by seeing fractures you will vote not guilty,” the point is that it is difficult to determine error, much less one that is harmful, from an incomplete remark.  But even if we assume that the prosecutor intended to say that she hoped by seeing the fractures the jury would find Appellant guilty of capital murder, that would hardly have been news to anyone in the courtroom.  It is not lost upon juries that prosecutors hope for a guilty verdict or that defendants and their counsel hope for an acquittal.  Even if prosecutors are not supposed to inject their personal feelings into a case, we cannot hold in this case that the prosecutor's expressing to the jury her hope that it would find the evidence of fractures probative of the issue of Appellant's guilt affected any of Appellant's substantial rights.  See Tex.R.App. P. 44.2(b);  Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.Crim.App.2000);  Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466 (1999).  This point is overruled. Conclusion Having overruled all of Appellant's points, we affirm the judgment of the trial court.

NO. 02–11–00252–CR

Decided: August 30, 2012