Affirmed and Memorandum Opinion filed February 25, 2014.

In The

Fourteenth Court of Appeals

NO. 14-11-00778-CR

LAUREN ASHLEY ADETUNJI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 1715891

MEMORANDUM OPINION

Appellant Lauren Adetunji appeals her conviction for prostitution. See Tex. 

Penal Code Ann. § 43.02(a)(1) (West Supp. 2013). In three issues, appellant 

argues that (1) the evidence presented at trial was insufficient to support her 

conviction, and that the trial court erred by (2) admitting evidence of an extraneous 

offense, and (3) omitting a jury instruction regarding illegally obtained evidence 

requested under Article 38.23(a) of the Texas Code of Criminal Procedure. 
Because we conclude the evidence was sufficient, admitting the extraneous offense 

was not an abuse of discretion, and the omission of the jury instruction was proper, 

we affirm the judgment of the trial court. 

BACKGROUND

Officers Tomlinson and Fondon went to a club as undercover officers for the 

narcotics division of the Houston Police Department, looking for prostitution or

narcotics offenses. The officers wore plain clothes and used a cover story that they 

were in town for an oil and gas convention, staying at a nearby hotel. 

Appellant, one of the dancers at the club, approached the officers who would 

arrest her later that evening on a charge of prostitution. Officer Tomlinson 

purchased a “table dance” from appellant, which caused the two to leave Officer 

Fondon and go to a booth near the officers’ table. At appellant’s trial, Officer 

Tomlinson admitted to purchasing two alcoholic beverages for appellant prior to 

their conversation recounted below, at least one of which she consumed. In 

addition, both Officer Tomlinson and the appellant agreed that during her 

performance, Officer Tomlinson asked appellant about oral sex and the appellant 

informed him that she does not enjoy it. Their accounts differed as to the 

remainder of the conversation. 

Officer Tomlinson testified that the conversation began because he asked 

appellant how much she would charge him for oral sex, and that after appellant 

hinted that she liked other sexual acts, he asked her how much she would charge 

him for intercourse. According to Officer Tomlinson, appellant then quoted a 

price of $300. Officer Tomlinson testified that they “agreed on it” and that 

appellant immediately suggested they go to the V.I.P. room. Officer Tomlinson 

testified that because he could not actually engage in the act, he suggested a later 

meeting at “the hotel they had been discussing” rather than the V.I.P. room, and 

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that the appellant agreed to meet him there once she finished work. At the end of 

the conversation, Officer Tomlinson had the “understanding that [he was] going to 

meet somewhere else with the [appellant] and someone else and Officer Fondon.” 

In contrast, appellant testified that Officer Tomlinson only asked her about 

her sexual preferences in the abstract, and did not ask her about performing any 

sexual acts with him specifically. She also testified that Officer Tomlinson was the 

one who brought up the V.I.P. room by asking about its cost. Appellant testified 

that she told him the club charged $300 for the use of the V.I.P. room, which 

included a minimum of 15 dances and a bottle of liquor.

At her trial, appellant moved to exclude testimony about her conversation

with Officer Tomlinson, as well as any other statements she made after Officer 

Tomlinson purchased alcoholic beverages for her. Appellant, who was twenty 

years old at the time, argued that her statements should be excluded pursuant to 

Article 38.23(a) of the Texas Code of Criminal Procedure because Officer 

Tomlinson illegally “purchased . . . alcohol [for her] in order to gain her trust to get 

close enough to her to have dances to then engage her in . . . conversation.” 

Although the State did not deny Officer Tomlinson’s violation of Texas’s

Alcoholic Beverage Code, it argued the evidence was admissible because appellant 

had not proved that the illegal act caused her to make the statements at issue. The 

trial court denied appellant’s motion. 

During the charge conference, appellant moved to include a jury instruction 

that would permit the jury to disregard any testimony it believed was improperly 

obtained by a violation of Texas law. Although the witnesses’ testimony 

conflicted regarding Officer Tomlinson’s awareness of appellant’s age, Officer 

Tomlinson admitted to purchasing alcohol for appellant. Appellant argued the jury 

instruction was mandatory in light of unresolved fact questions regarding Officer 

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Tomlinson’s knowledge that appellant was underage and whether her statements 

were obtained as a result of his purchases of alcohol. The trial court denied the 

motion. 

Appellant also disputed the substance of a conversation she had with Officer 

Fondon later the same evening. Appellant testified that although Officer Fondon 

requested that she bring other dancers over to his table, he never asked her about 

sex or anything of a sexual nature. Officer Fondon testified, however, that 

appellant entered into an agreement with him “that she was going to get a friend to 

go with us to a hotel room for sex” for a fee of $300. He also testified that 

appellant instructed him to “pay her first.” According to Officer Fondon, this 

agreement took place after Officer Tomlinson received his second table dance. 

In addition to disputing the substance of the conversation, appellant objected 

to the introduction of Fondon’s testimony about their agreement, characterizing it 

as extraneous to the act of prostitution with which she was charged. Appellant 

argued that she lacked notice that the conversation would be introduced and that it 

had no relevance either as a separate act of prostitution or as a suggestion that 

appellant was promoting prostitution. The State argued that appellant’s interaction 

with Officer Fondon provided evidence of her mental state and that it was “all part 

of [the] conversation to engage in prostitution.”

The jury found appellant guilty of committing prostitution by agreeing to 

engage in sexual conduct with Officer Tomlinson for a fee. This appeal timely 

followed. 

ANALYSIS

Appellant raises three issues on appeal. First, appellant contends that the 

evidence admitted at trial was insufficient to support her conviction. Second, 

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appellant argues that the trial court abused its discretion in admitting evidence of a 

separate act of prostitution with Officer Fondon. Third, appellant argues that the 

trial court erred in refusing to submit a jury instruction that would have permitted 

the jury to disregard key evidence if it found Officer Tomlinson obtained that 

evidence by illegally purchasing alcohol for her. We consider each issue in turn. 

I. Sufficient evidence supports appellant’s prostitution conviction.

Appellant argues that the evidence at trial proved at most an offer to engage 

in sexual conduct. Because she was not charged with offering to engage in sexual 

conduct, but only with agreeing to engage in such conduct, she contends this 

evidence is insufficient to support her conviction. We hold that sufficient evidence 

was presented for the jury to infer that appellant did agree to engage in sexual 

conduct for a fee, and we therefore overrule appellant’s first issue.

Due process requires that the record contain sufficient evidence from which

a rational fact finder could find each essential element of the charge beyond a 

reasonable doubt. Hughes v. State, 625 S.W.2d 827, 829 (Tex. App.—Houston 

[14th Dist.] 1981, no pet.) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). The 

fact finder is free to credit all or part of a witness’s testimony as well as to resolve 

conflicts in testimony. Coe v. State, No. 14-10-00929-CR, 2012 WL 1899179, at 

*12 (Tex. App.—Houston [14th Dist.] May 24, 2012, pet. ref’d). The testimony of 

a single eyewitness can be sufficient to support a conviction. Romero v. State, 406 

S.W.3d 695, 697 (Tex. App.—Houston [14th Dist.] 2013, pet. struck).

When reviewing the sufficiency of the evidence, we view the evidence in the 

light most favorable to the verdict. Uyamadu v. State, 359 S.W.3d 753, 757 (Tex. 

App.—Houston [14th Dist.] 2011, pet. ref’d). If the “record support[s] 

contradictory inferences, we presume the jury resolved conflicts in favor of the 

verdict.” Lashley v. State, 401 S.W.3d 738, 743 (Tex. App.—Houston [14th Dist.] 

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2013, no pet.) (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 

2012)).

The offense of prostitution is committed by knowingly offering to engage, 

agreeing to engage, or engaging in sexual conduct for a fee. See Tex. Penal Code 

Ann. § 43.02(a)(1). Offering to engage in sexual conduct for a fee and agreeing to 

engage in sexual conduct for a fee are distinct means of committing the offense,

Milczanowski v. State, 645 S.W.2d 445, 446 (Tex. Crim. App. 1983), and here 

appellant was charged only with agreeing. The jury may rely on circumstantial 

evidence to infer the existence of an agreement, for which there is rarely direct 

evidence. Nwosoucha v. State, 325 S.W.3d 816, 831 (Tex. App.—Houston [14th 

Dist.] 2010, pet. ref’d).

Here, the evidence was sufficient to establish that appellant agreed to engage 

in sexual conduct for a fee. It was within the province of the jury to determine 

whether Officer Tomlinson and appellant were discussing appellant’s sexual 

preferences in general or in the specific context of services available for purchase. 

Disregarding appellant’s conflicting testimony, the jury could reasonably have 

believed Officer Tomlinson’s testimony that the $300 fee appellant quoted was for 

intercourse and not the use of the V.I.P. room. Officer Tomlinson testified that he 

and appellant agreed on this fee.

Moreover, given the evidence that appellant and Officer Tomlinson were 

negotiating for sexual favors, the jury could infer that an agreement had been 

reached when the conversation turned to suitable locations. Thus, the jury could 

infer that appellant had agreed to perform the act when she said they could use the 

V.I.P. room. See Anguiano v. State, 774 S.W.2d 344, 346 (Tex. App.—Houston 

[14th Dist.] 1989, no pet.) (holding evidence sufficient where defendant’s 

statement that she and the undercover officer would “have to go to a motel down 

6
the street” followed a discussion about pricing for various sexual acts); cf.

Melendez v. State, 194 S.W.3d 641, 643–44 (Tex. App.—Houston [14th Dist.] 

2006, pet. ref’d) (noting that defendant’s invitation to a private room would afford 

the opportunity to engage in physical contact which would violate applicable laws 

without being observed by others). In addition, the jury could reasonably infer that 

appellant had agreed to perform the act when, as Officer Tomlinson testified, she 

instead agreed to meet him later at a hotel.

Because Officer Tomlinson’s testimony provided sufficient evidence from 

which the jury could infer an agreement to have sexual intercourse for money, we 

overrule appellant’s first issue.

II. The trial court did not abuse its discretion by admitting Officer 

Fondon’s testimony. 

In her second issue, appellant complains that the trial court admitted 

evidence of an extraneous act of prostitution involving Officer Fondon. As 

explained above, the trial court allowed Officer Fondon to testify that appellant 

agreed “to get a friend to go with us to a hotel room for sex” for a fee of $300, and 

told Fondon to pay her first. Appellant argues that admitting Officer Fondon’s 

testimony harmed her because (1) her lack of notice affected her ability to defend 

against Officer Fondon’s allegation, and (2) his testimony significantly bolstered 

the State’s case. Because we hold the trial court could reasonably have viewed 

Officer Fondon’s testimony as evidence of appellant’s knowledge, as well as 

admissible same-transaction contextual evidence exempt from Rule 404(b)’s notice 

requirement, we overrule appellant’s second issue.

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A. Officer Fondon’s testimony can reasonably be viewed as evidence 

of knowledge and same-transaction contextual evidence.

We review a trial court’s determination of the admissibility of extraneous 

acts for abuse of discretion. Lacaze v. State, 346 S.W.3d 113, 121 (Tex. App.—

Houston [14th Dist.] 2011, pet. ref’d). A trial court’s ruling is an abuse of 

discretion if it is “so clearly wrong as to lie outside the zone within which 

reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. 

Crim. App. 2008).

During the guilt-innocence phase of a criminal trial, admitting evidence of 

“other crimes, wrongs or acts” is erroneous if the evidence’s only relevance is to 

suggest that the defendant committed the charged offense in conformity with a bad 

character. Tex. R. Evid. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. 

App. 2011). Such evidence is admissible, however, if it is relevant to other 

matters, including “proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.” Tex. R. Evid. 404(b); see 

Berry v. State, 233 S.W.3d 847, 858 (Tex. Crim. App. 2007). 

Additionally, evidence of an uncharged offense is admissible as sametransaction contextual evidence if it is “intermixed or blended with [the charged 

offense], or connected so that they form an indivisible criminal transaction, such 

that full proof of one could not be given without showing the other.” Buchanan v. 

State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995). An extraneous offense that 

constitutes same-transaction contextual evidence is admissible not because it “has 

any evidential purpose” in proving the charged offense, but “simply because in 

narrating the one it is impracticable to avoid describing the other.” Mayes v. State, 

816 S.W.2d 79, 86 n.4 (Tex. Crim. App. 1991) (quoting 2 Wigmore, Evidence, 

Sec. 365 (Chadborne rev. 1979)). For example, the extraneous offense is 

8
admissible where “avoiding reference to it would make the State’s case incomplete 

or difficult to understand.” Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 

2005). Same-transaction contextual evidence is therefore admissible only to the 

extent necessary to the jury’s understanding of the charged offense. Wyatt v. State, 

23 S.W.3d 18, 25 (Tex. Crim. App. 2000); see also Moreno v. State, 721 S.W.2d 

295, 301 (Tex. Crim. App. 1986) (“[T]he jury is entitled to know all the relevant 

surrounding facts and circumstances of the charged offense; an offense is not tried 

in a vacuum.”).

Here, the agreement and “understanding” Officer Tomlinson ultimately 

testified he had with appellant was that she would be paid $300 to engage in sexual 

intercourse with him when she and a friend met him and Officer Fondon at the 

officers’ supposed hotel later in the evening. Officer Tomlinson testified he could 

not agree to pay appellant to engage in sex with him in the V.I.P. room because she 

would have expected him to consummate the agreement immediately. In order to 

postpone her expectations without raising suspicion, he chose instead to agree to a 

meeting later in the evening between the two officers and appellant and her friend. 

Reading this testimony together with Officer Fondon’s supports a reasonable 

conclusion that when Officer Fondon testified appellant agreed “to get a friend to 

go with us to a hotel room for sex” for the same sum of $300, the “us” included 

Officer Tomlinson as well. Officer Fondon’s testimony thus tends corroborate that 

appellant’s agreement to engage in sexual conduct for a fee was made knowingly. 

See Tex. R. Evid. 404(b) (evidence of extraneous offense may be admissible if 

relevant to prove knowledge). Moreover, the officers’ testimony taken together 

tends to show that appellant’s discussions with each of them formed part of an 

indivisible criminal transaction. See Buchanan, 911 S.W.2d at 15. 

9
Because this evidence could reasonably be viewed as an agreement by 

appellant to involve a friend in the bargain, and not to engage in sexual conduct

with Officer Fondon herself, the trial court had discretion to conclude that Officer 

Fondon was not testifying to appellant committing an additional act of prostitution. 

Furthermore, given the evidence that the contemplated transaction involved four 

parties, rather than two, it may have been impractical for either officer to narrate 

his discussion with appellant while avoiding any reference to the other two parties 

to the agreement. See Prible, 175 S.W.3d at 731 (holding it was within the zone of 

reasonable disagreement to admit testimony that the fire defendant set resulted in 

the death of two children, although they were not the complainants, because the 

evidence “was necessary to fully understand the situation as neighbors and 

firefighters found it”). It was therefore within the zone of reasonable disagreement 

for the trial court to admit Officer Fondon’s testimony as same-transaction 

contextual evidence.

Appellant’s characterization of her discussion with Officer Fondon as a 

separate and unrelated transaction is not an incredible one. Our role on appeal, 

however, is to determine whether the State’s alternative characterization—that 

appellant and Officer Tomlinson were engaged in negotiations resulting in an 

agreement involving four parties—is outside the zone of reasonable agreement. 

See Ross v. State, 154 S.W.3d 804, 808 (holding that in reviewing the admission of 

evidence, “our role is limited to determining whether the record supports the trial 

court’s ruling”). We cannot say that it is. 

Of course, it may not have been necessary for Officer Tomlinson to involve 

Officer Fondon or appellant’s friend in order to induce appellant to agree to engage 

in sexual conduct with him. But even if true, this fact would not refute the 

reasonableness of the State’s characterization of the agreement. Instead, 

10
appellant’s arguments at trial merely suggested that Officer Tomlinson could have 

entered into a different and simpler agreement with the appellant than the one to 

which he testified. These arguments do not attack the reasonableness of the trial 

court’s admission of the evidence so much as Officer Tomlinson’s choices during 

the investigation, which are not the subject of our review.

Nor can we say that it was outside the zone of reasonable agreement for the 

trial court to conclude that Officer Fondon’s testimony was necessary to the jury’s 

proper understanding of the agreement. Because Officer Tomlinson testified only 

that it was his understanding that he was “going to meet somewhere else with 

[appellant] and someone else and Officer Fondon,” excluding Officer Fondon’s 

testimony might have made the offense seem incomplete and difficult for the jury 

to understand. For example, without Officer Fondon’s testimony, the jury might 

have been confused as to why Officer Tomlinson and appellant were meeting with 

two other people when they were supposedly planning to engage in intercourse 

with each other. 

Nor was it outside the zone of reasonable agreement for the trial court to 

conclude that appellant’s instruction to Officer Fondon to “pay her first” was 

integral to his narrative of their discussion. The instruction provides a reason for 

appellant to have approached Officer Fondon at all in order to discuss the 

arrangements she had already made with Officer Tomlinson. Cf. Lockhart v. State, 

847 S.W.2d 568, 569–71 (Tex. Crim. App. 1992) (in trial for police officer’s death, 

evidence that the officer was following up on an earlier sighting of appellant 

driving a car with a stolen license plate was vital to the jury’s comprehension of 

why the officer was in appellant’s motel room when he was murdered); Crivello v. 

State, 4 S.W.3d 792, 796, 98 (Tex. App.—Texarkana 1999, no pet.) (testimony that 

police were following up on a bar fight was necessary to the jury’s understanding 

11
of why the police were at the apartment and why chase was initially given). In 

addition, appellant’s payment instruction to Officer Fondon contextualizes the 

transaction: it suggests payment would be made just before the agreed-upon sexual 

conduct, thereby helping to explain why—as appellant pointed out in her crossexamination of Officer Tomlinson—the officers did not recover any money that 

had been exchanged for sex. 

We note that the trial court did place limits on Officer Fondon’s testimony in 

order to ensure the jury would not hear more than was necessary to understand the 

parameters of the agreement. The trial court prevented the jury from hearing, or 

instructed them to disregard, testimony and argument suggesting that appellant 

intended to “take a cut” from the money Officer Fondon was to pay. This limited 

the extent to which Officer Fondon’s testimony would suggest the separate offense 

of promotion of prostitution. See Tex. Penal Code § 43.03 (West Supp. 2013) 

(promotion of prostitution requires intent to receive compensation for prostitution 

services rendered by someone else).

Because Officer Fondon’s testimony can reasonably be viewed as evidence 

of appellant’s knowledge and as same-transaction contextual evidence, we hold the 

trial court’s ruling admitting his testimony was within the zone of reasonable 

disagreement and thus not an abuse of discretion.

B. Notice of intent to use same-transaction contextual evidence is not 

required.

Appellant also argues that her lack of notice of Officer Fondon’s allegation 

affected her ability to defend against it, depriving her of her constitutional right to 

due process and a fair trial. Even the erroneous admission of an extraneous offense 

would not be constitutional error, however. Fox, 283 S.W.3d at 95. Furthermore, 

Rule 404(b) states that its provision for pre-trial notice of the State’s intent to 

12
admit evidence of other crimes, wrongs, or acts does not apply to evidence “arising 

in the same transaction,” i.e. same-transaction contextual evidence. See McDonald 

v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005). Because the State was not 

required to give notice that it would introduce Officer Fondon’s conversation with 

appellant, we need not consider whether appellant was provided with sufficient 

notice or whether she suffered harm from the lack of notice. We therefore overrule 

appellant’s second issue.

III. Appellant did not identify a material factual dispute that would warrant 

a jury instruction pursuant to Article 38.23(a).

In her third issue, appellant argues that the trial court committed reversible 

error in denying her request for a jury instruction pursuant to Article 38.23(a) of 

the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. Art. 38.23(a) 

(West 2005). Appellant has not appealed the trial court’s refusal to suppress the 

officers’ testimony, so we do not address whether the testimony was properly 

admitted, but only whether appellant was entitled to a jury instruction authorizing

the jury to disregard the contested testimony. Because appellant did not 

affirmatively contest a material factual issue regarding how the evidence was 

obtained, we hold the trial court correctly omitted the instruction.

In reviewing the correctness of a jury charge, we determine first whether 

error exists, and second whether the error resulted in a sufficient degree of harm to 

require reversal of the conviction. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. 

App. 2005).

The Code of Criminal Procedure requires the exclusion of evidence

“obtained by an officer or other person in violation of any provisions of the 

Constitution or laws of the State of Texas.” Tex. Code Crim. Proc. Ann. Art. 

38.23(a). The defendant must show a causal connection between the alleged 

13
violation and the acquisition of evidence. Pham v. State, 175 S.W.3d 767, 773 

(Tex. Crim. App. 2005); Gonzales v. State, 67 S.W.3d 910, 912 (Tex. Crim. App. 

2002) (“Our decisions have established that evidence is not ‘obtained . . . in 

violation’ of a provision of law if there is no causal connection between the illegal 

conduct and the acquisition of evidence.”); State v. Callaghan, 222 S.W.3d 610, 

615–16 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). Once this causal 

connection has been shown, the burden shifts to the State to either disprove the 

defendant’s causal evidence or show that the violation is so far removed from the 

acquisition of evidence that the causal chain is broken. Pham, 175 S.W.3d at 773.

Where the evidence’s admissibility hinges on a question of fact, Article 

38.23(a) provides for an instruction directing the jury to disregard evidence that it

believes or reasonably doubts was obtained in violation of the Constitution or laws 

of the State of Texas. Tex. Code Crim. Proc. Art. 38.23(a). In contrast, “[w]here 

the issue raised by the evidence at trial does not involve controverted historical 

facts, but only the proper application of the law to undisputed facts, that issue is 

properly left to the determination of the trial court.” Robinson v. State, 377 S.W.3d 

712, 719 (Tex. Crim. App. 2012) (emphasis removed). 

To establish that admissibility hinges on a fact question and therefore an 

instruction is warranted, the defendant must show that (1) the evidence heard by 

the jury raises an issue of fact, (2) the defendant affirmatively contests the 

evidence on that issue of fact, and (3) the contested factual issue is “material to the 

lawfulness of the challenged conduct in obtaining the evidence.” Madden v. State, 

242 S.W.3d 504, 510 (Tex. Crim. App. 2007); see also Grubbs v. State, No. 14-12-

00681-CR, 2013 WL 4487565, at *5 (Tex. App.—Houston [14th Dist.] Aug. 22, 

2013) (Because cross-examiner’s questions could not affirmatively contest the 

officers’ undisputed testimony, “there was no conflict in the evidence that raised a 

14
disputed fact issue material to the legal question . . . .”). 

Here, appellant was not entitled to a jury instruction under Article 38.23(a) 

because the only disputed issue of fact that she identifies—Officer Tomlinson’s 

awareness of her underage status—is immaterial to either the lawfulness of the 

officer’s conduct or whether that conduct caused her to commit the offense. See

Boutang v. State, 402 S.W.3d 782, 792 (Tex. App.—San Antonio 2013, pet. ref’d) 

(“Although [appellant] raise[d] some disputed facts, they are not material to the 

provision of a jury instruction on probable cause.”). 

The Texas Alcoholic Beverage Code criminalizes the purchase of an 

alcoholic beverage for a person under the age of twenty-one without regard to 

whether the purchaser knows the recipient is underage. See Tex. Alco. Bev. Code 

Ann. § 106.01, 106.06(a) (West 2007 & Supp. 2013). There is no dispute in the 

record that Officer Tomlinson purchased alcoholic beverages for appellant when 

she was under the age of twenty-one. Instead, appellant points to the conflicting

testimony regarding Officer Tomlinson’s awareness that she was underage. While 

this conflict certainly raises a fact question, that question is immaterial to the 

lawfulness of Officer Tomlinson’s purchases of alcohol for appellant. Therefore, 

this fact question did not warrant a jury instruction under Article 38.23(a).

1

Nor was there any other factual dispute calling for an instruction. Even if 

appellant’s potential intoxication could be considered an issue of fact bearing on 

how her agreement was obtained (an issue we do not decide),

2 appellant does not 

1 Because we hold that the fact question appellant identified was immaterial to the 

lawfulness of the purchases, we need not address the State’s argument that the scope of Article 

38.23(a) does not include violations of section 106.06 of the Alcoholic Beverages Code because 

such violations are “unrelated to the purpose of the exclusionary rule or the prevention of the 

illegal procurement of evidence of crime.” See Wilson v. State, 311 S.W.3d 452, 459 (Tex. 

Crim. App. 2010).

2 Compare Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (evidence must 

15

 
point to any evidence of intoxication to contest this issue. Appellant’s crossexamination of Officer Tomlinson during the suppression hearing emphasized that 

his opinion of appellant’s lack of intoxication was “just based on a visual 

observation” and that he had never received any special training in that field. But

cross-examination questions themselves are not an affirmative contest for Article 

38.23(a) purposes, so appellant did not meet the prerequisites for a jury instruction 

on this issue. See Grubbs, 2013 WL 4487565, at *5.

Because appellant did not identify a factual issue raised by the evidence that 

was both material to the officers’ obtainment of evidence and disputed, we affirm 

the trial court’s rejection of appellant’s request for an Article 38.23(a) jury 

instruction. We overrule appellant’s third issue.

CONCLUSION

Having overruled appellant’s three issues, we affirm the judgment of the 

trial court. 

/s/ J. Brett Busby

Justice

Panel consists of Justices McCally, Busby, and Donovan.

Do Not Publish — Tex. R. App. P. 47.2(b).

raise a “factual dispute about how the evidence was obtained”) and Thomas v. State, 723 S.W.2d 

696, 707 (Tex. Crim. App. 1986) (Article 38.23(a) instruction “directs a jury to disregard 

evidence if it resolves, in a defendant’s favor, the factual dispute concerning the manner in which 

the evidence was obtained”) with Madden, 242 S.W.3d at 510 (factual dispute must be “material 

to the lawfulness of the challenged conduct” (emphasis added)).

16