In the

Court 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 No. 1754056

Before Sudderth, C.J.; Kerr, and Walker, JJ.

Memorandum Opinion by Justice Walker

OLUWASEUN ELIJAH SHOMEFUN, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

Appellant Oluwaseun Elijah Shomefun appeals his conviction for driving while 

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

See Tex. Penal Code Ann. § 49.04(d). In a single issue, Shomefun complains that the 

trial court erred in failing to instruct the jury pursuant to Texas Code of Criminal 

Procedure Article 38.23 to disregard evidence it found to be illegally obtained. We 

affirm.

I. BACKGROUND

Around 8:30 p.m. on September 26, 2022, 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 parking lot. Suddenly, they noticed “a silver Mercedes SUV-type 

car” with its hazard lights on enter the parking 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 called the Grapevine Police Department’s nonemergency

number. Officer Marcus Debruno arrived on scene and observed a silver Mercedes

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

Debruno got out of his patrol unit and approached the Mercedes, wherein he found 

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

that Shomefun “was listening to his music excessively loud and did not notice [the 

1According to Day’s testimony, her vehicle was parked immediately next to the 

space where her friend’s van was parked. The Mercedes came and parked on the 

other side of the van.
3

officer] despite [his] lights being right behind [Shomefun’s] vehicle and [the officer]

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

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

Officer 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 of alcohol on 

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

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

disoriented.” Based on his training and experience, Officer Debruno believed that

Shomefun was intoxicated. He had Shomefun step out of the vehicle and perform 

three field sobriety tests. After administering the tests to Shomefun, Officer Debruno

placed him under arrest for driving while intoxicated. A few hours later at a nearby 

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

At his trial, a forensic scientist who had tested a sample of Shomefun’s blood

testified that the sample she had tested returned a blood alcohol concentration of

0.236 grams of alcohol per 100 milliliters of blood. Shomefun did not testify or call 

any witnesses in his defense, but he did request that an Article 38.23 instruction be 

included in the jury charge.

2 See Tex. Code Crim. Proc. Ann. art. 38.23(a). He argued

2The Article 38.23 instruction that Shomefun 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 that “[i]f you have a 
4

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

cause to arrest [due to] the issue of operation of a motor vehicle.” The trial court 

denied this request and submitted the case to the jury, who then convicted Shomefun. 

The trial court sentenced Shomefun to sixty days in jail. Shomefun timely filed

a notice of appeal. 

II. DISCUSSION

In his lone issue, Shomefun argues that the trial court erred in failing to instruct 

the jury pursuant to Texas Code of Criminal Procedure Article 38.23 that the jury 

should disregard evidence it found was obtained illegally because there was a fact issue 

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

ultimately arrested such that his arrest was therefore illegal. In reviewing a jury 

charge, we first determine whether error occurred; if not, then our analysis ends. 

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). 

Article 38.23(a) provides,

No evidence obtained by an officer or other person in violation of 

any provisions of the Constitution . . . shall be admitted in evidence 

against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the 

jury shall be instructed that if it believes, or has a reasonable doubt, that 

the evidence was obtained in violation of the provisions of this Article, 

then and in such event, the jury shall disregard any such evidence so 

obtained.

reasonable doubt that the peace officer lawfully obtained the evidence, you may not 

consider it.”
5

Tex. Code Crim. Proc. Ann. art. 38.23(a). To be entitled to an Article 38.23

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

front of the jury, (2) the defendant contested the fact by affirmative evidence at trial, 

and (3) the fact is material to the constitutional or statutory violation that the 

defendant has identified as rendering the particular evidence inadmissible. Robinson v. 

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

on a defensive theory may be raised “from any source, and the evidence may be 

strong, weak, contradicted, unimpeached, or unbelievable,” an Article 38.23 jury 

instruction must be included in the jury charge only if there is a factual dispute about 

how the evidence was obtained. White v. State, 201 S.W.3d 233, 248 (Tex. App.—Fort

Worth 2006, pet. ref’d) (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. 

App. 2004)).

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

the one who had actually driven to that location. Because the arrest was based in part

on Shomefun operating the motor vehicle, he contends, “whether an objectively 

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

lawfulness of the arrest.”

3 Shomefun directs us to the following evidence that he

claims “affirmatively contested” this fact:

3On appeal, Shomefun has not identified what particular “evidence” he believes 

would have been rendered inadmissible if his arrest lacked probable cause, but we 

interpret him to argue that, if his arrest was illegal, then any evidence obtained as a 

result of his arrest—including his blood test—was illegally obtained. 
6

• Although Officer Debruno testified that Shomefun described himself 

driving earlier in the day, Officer Debruno acknowledged that he did not 

know exactly when Shomefun was actually operating the vehicle 

• None of the witnesses confirmed seeing Shomefun in the vehicle prior 

to when Officer Debruno approached the car.

• According to Shomefun, Day testified that she never saw who was 

driving, that she could not say the number of people who arrived in the 

vehicle, and that she lost line of sight of the vehicle.

4

None of this testimony—or any other evidence in the record—created a fact 

issue that entitled Shomefun to the Article 38.23 instruction that he requested. There 

was no affirmative evidence that Shomefun had not driven to that location or that 

anyone else had operated his vehicle. The fact that none of the witnesses positively 

testified that they saw Shomefun “operate” his vehicle that night did not raise a 

factual dispute 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.) (mem. op., not designated for publication) (“The officers’ admissions that they 

did not know with certainty whether Robinson was intoxicated or not when they 

approached his vehicle is not affirmative evidence that Robinson did not appear

intoxicated, which is what he needed to get his requested instruction.”).

4The record belies Shomefun’s assertion that Day testified that she lost line of 

sight of his vehicle. To the contrary, Day testified that when she moved her car, she

kept her eye on the vehicle through her rearview mirror at all times. She never 

testified otherwise. 
7

Because Shomefun did not contest the fact that it was he—and only he—who 

had driven to the location where he was found and ultimately arrested, he was not 

entitled to the Article 38.23 instruction he requested. See White v. State, 549 S.W.3d 

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

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

the evidence presented by the State); see also Robinson, 2022 WL 3453549, at *9. We 

overrule Shomefun’s sole issue.

III. CONCLUSION

Having overruled Shomefun’s only issue, we affirm the trial court’s judgment.

Tex. R. App. P. 43.2(a).

/s/ Brian Walker

Brian Walker

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: June 27, 2024