## In the

Cour t of Appeals Second Appellate District of Texas

at Fort Worth

_____________

______________

No. 02

- 23

- 00231

- CR

_________

__________________

On Appeal from County Criminal Court No. 10

Tarrant County, Texas
Trial Court N o. 1754056

Before Sud derth, C.J.; Kerr, and Walker, JJ.

M emorandum Opinion by Justice Walker 

### O LUWASEUN 

### E LIJAH 

### S HOMEFUN



### , Appellant

V



### .

T HE 

### S TATE OF 

### T EXAS2 ME MORANDUM OPINION

Appellant Oluwaseun Elijah Shomefun appeals hi s conviction for driving while

intoxicated with an alcohol concentration of 0.15 or more , a Clas s A misdemeanor.

See Tex. Penal Code Ann. § 49.04 (d)

. In a single issue

, S homefun compla in s tha t the

trial court erre d in failing to ins truct the jury pursuant to Texas Code of Criminal

Procedure Article 38.23 to disregard evidence it found to be illegal l y obtained

. We

affirm.

I

. BACKGROUND

Around 8:30 p.m. on September 26, 2 022, Elizabeth Day was sitting in her car

and talking with her friend

. The friend ’ s minivan was parked right next to Day ’ s in

the otherwise empty parki ng lot

. Suddenly, they not iced “ a silver Mercedes SUV

- type

c ar ” with its hazard lights on enter the p arking lot “ really quickly ” and park at an angle

“ really , really close ” to her friend ’ s car

. 1 Concerned

, Day moved her car to a different

spot in the parking lot and call ed the Gra pevine Police Departmen t ’ s non emergency

number

. Officer Marcus Debruno arrived on scene and observed a silver Mercede s

with its hazard lights blinking parked at an angle next to a white minivan

. Officer

Debrun o got out of his patrol u nit and approached t he Mercedes, wherei n he found

Shomefun in the driver ’s seat as the vehicle ’s sole occupant. Officer Debruno noticed

that Shomefun “ was listening to h is music excessivel y loud and did not notice [ the

1 According to Day’s testimony

, her vehicle was parked i mmediately next to the

space where her friend’s van was parked

. The Mercedes came and parked on the

o th er side of the van

.3

officer ] despite [

his ] lights being right behind [ Shomef un ’ s ] vehicle and [ the officer ]

taking [ his ] flashlight and illuminatin g the cab before approaching .”

After getting Shomefun ’ s attention and speaking to him fo r a few moments,

Of ficer Debruno smelled “ an odor of an alcoholic beverage emitting from within the

vehicle

. ” As they continued talking

, the odor became stronger, which Debruno

testified at Shomefun ’s trial indicated “ a strong odor of metabolization o f alcohol on

his breath

. ” Officer Debruno also observed that Shomefun “ had heavy, bloodshot,

water ed eyes ; [

h ] is speech was slurred ; ” and he “ seemed a little confused and

disoriented. ” Based on his training and exp eri ence, Officer Debru no believ ed that

Shomefun was intoxicated

. He had Shomefun step out of the vehicle and perform

three field sobriety tests

. A fter admi nistering the tests to Shomefun

, Officer Debruno

placed him und er arrest fo r drivi ng while intoxicated

. A few hours later at a nearby

hospital, a registered nurse drew a sample of Shomefun ’s blood

.

A t his trial, a forensic sc ientist w ho had tested a sample of Shomefun ’s blood

testifie d that the samp le s he had tested return ed a blood alcohol concentration of

0 .236 grams of alcohol per 10 0 milliliters of blood

. Shomefun did not testify or call

any witnesses in h i s defense

, but he did re que st that an Art icle 38.23 instruction be

included in the jury charge

. 2 See Tex. Code Crim. Proc. Ann. art. 38

. 23 (a )

. He ar g ued

2 The Article 38.23 instruction that Sho mefun requested at trial would have permitted the jury to consider “ the evidence ” if the jury believed “ beyond a reasonable doubt that the peace officer lawfully obtained ” it but tha t “ [ i ] f you have a4

that h e was entitled to this jury instruction because there was a “ lack of probable

cause to arres t [ due to ] the is sue of ope ratio n of a motor vehicl e

. ” The trial court

denied this request and submitted the case to the j ury , wh o then con v icted Shomefun

.

The t r ial court sentence d Shomefun to sixty days in jail

. Shomefun time ly filed

a notice o f app eal

.

I I

. DISCUSS ION

In his lone issue

, Shomefun argues that the trial court erred in failing to instruct

the jury pursua nt to Texas Code of Criminal Procedure Article 38.23 that the jury

should d isregard evid ence it found w as obtained illegal ly because there was a fact is sue

in dis pute

—

whether Shomefun had driven to the location where he was found and

ultimately ar rested su ch that his arrest was th erefore illegal

. In reviewing a jury

c harge, we first determin e whether error oc c urred; if not, then our analysis ends.

Kirsc h v . State , 357 S.W.3d 645, 649 (T ex. Crim. App. 2012).

Article 38

. 23 (a) provides

,

No evid ence o btained by an officer or other person i n violation of any provisions of the Constitutio n

. . . shall be ad mitted in evidence against the accused o n the tr ial of any cr iminal case.

In any case where the lega l evidence raises an issue hereunder, the ju ry shall be instructed that if it belie ves, or has a reasonable doubt , that

th e e vidence was obtained in violati on of the provisions of this Article,

t h en an d i n such event, the jury shall disregard any such evid ence so obtained.

reasonable doubt that the peace officer lawfully obtain ed the evidence

, you may not consider it

. ”5

Tex. Code Crim. Proc . Ann. art. 38

. 23 (a )

. To be entitled to an A r ti cle 38.23

instruction, the defendant mu st show that (1) an issue of historical fact was raised in

front o f the jury , (2) the defend ant contested the fact by affirmative ev idence at trial,

and (3) the fact is material to the constitutional or statutory v io lation that the

defendant ha s identifie d a s rendering the particular evid ence inadmissible. Robinson v.

State

, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012 ). Accordingly, al though a fact issue

on a defensive th eory may be raised “from any source, and the ev idence may b e

strong, weak, contradicte d, unimpeached, or unbeliev able,” an Article 38.23 jury

instruction must be i ncluded in t he j ury charge only if there is a factual di spute about

how the evidence was obta ined. Wh ite v. State , 201 S.W.3d 233, 248 (Tex . App.

— Fort

Worth 2006, pet. ref’d) ( qu otin g Garza v. State , 126 S.W.3d 7 9, 85 (Tex. Crim.

App. 2004

) )

.

Shomefun con tends that there is a contested issue of fact as to whether he was

the one who had actually d riven to that location

. Because the arrest was based in part

on Shomefun operating the motor vehicle

, he contends, “ whether an objectively

reasonable basis for th e arrest existed was a contested fact that was material to the

lawfulness of the ar rest

. ” 3 Shomefun directs us to the following evidence that he

claims “ affirm atively contest ed ” this fact :

3 On appeal, Shomefun has not identified wh at particular “ evidence ” he believes
would have been rendered in admissib le if his arrest lacked probable cause, but we interpret him to argue that, if his arrest was illegal , then any evidenc e obtained as a
result of his arrest

— including his blood test

— was i llegally obtained.6

• Alth ough Officer Debruno testi fied that Shomefun described himsel f driving earlie r in the day, Officer Debruno acknowledged that he did not
kno w exactly when Shomefun was actually operating the vehicle

• None of the witnesses confirmed seeing Shomefun in the vehicle prior
to when Officer Debruno approac h ed the car.

• Ac cording to Shome fun

, Day testifi ed tha t she never saw who was driving, that she could not say the number of people who ar rived in the vehicle, and that she lost line of sight of the vehicle

. 4

None of this testimony

— or any other evidence in the rec ord

— cre ated a fact

issu e that entitled Shomefun to the A r ti cle 38.23 instruction that he requested

. There

was n o affirmative evidence that Shomefun had not driven to that location or tha t

anyone e lse had operated his vehicle

. The fact that none of the witn esses p ositively

te st ified that they saw Shomefun “ operate ” his vehicle that night did not raise a

factual di s pute about the lawfulness of Shomefun ’s arrest

. See Robinson v. State , No.

02

- 21

- 00113

- CR, 2022 WL 3453549, at *9 (Tex. App.

— Fort Worth Aug . 18 , 2022, no

pet.) (m em. op., not designate d for publication) ( “ The officers’ admission s that they

did not know wit h certainty whether Robinson was intoxicated or not when they

approached hi s vehicle is not affirmative evidence that Robinson did not appe ar

i ntoxicat ed, which i s wh at he needed to get his requested instruction. ” )

.

4 The rec ord belies Sho m efun ’ s assertio n that Day t est ified tha t she lost line of sight of his vehicle

. To the contrary

, Day testified tha t when she m oved her ca r , she
ke p t her eye on the vehicle through her rearview mirror at all ti mes

. She never
testified otherwise

.7

Be cause Shomefun did not contest the fac t that it was he

— and only he

— who

had driven to the location where he was fo und and ultimately ar rested

, he was not

entitled to the Article 38. 23 instru ction he r eques ted

. See White v. St ate , 549 S.W.3d

146, 154 n.21 (Tex. Crim. App. 2018) (stating that ap pellant did not establish that

there was an issue of fact in dispute becaus e he presented no evidence controverting

the evidence presented by the State ) ; see als o Rob inson

, 2022 WL 3453549, at *9

. We

o verrule Shomefun ’s sole issue

.

III. CONCLUSION

H avin g overr uled Shomefun ’s only issue, we affirm the tria l court ’ s judgment

.

Tex . R. App. P. 4 3 .2( a

)

.

/ s/ Brian Walker

B rian Walk e r Justice

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

Del iv er ed : June 27, 2024