Oluwaseun Elijah Shomefun v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00231-CR
___________________________
OLUWASEUN ELIJAH SHOMEFUN, Appellant
V.
THE STATE OF TEXAS
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
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
1
According 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.
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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
2
The 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
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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.”
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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:
3
On 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.
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• 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.”).
4
The 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.
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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
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