Lauren Ashley Adetunji v. State ( 2014 )

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
2
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
3
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,
4
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.]
5
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.
7
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 same-
transaction 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 cross-
examination 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 cross-
examination 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