In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00184-CR
CHRISTOPHER JAMES DELEON JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 264th District Court Bell County, Texas1 Trial Court No. 83907, Honorable Paul L. LePak, Presiding
January 8, 2024 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.
Christopher James DeLeon, Jr., Appellant, appeals his conviction for the first-
degree felony offense of murder2 and sentence of twenty-two years’ incarceration in the
Texas Department of Criminal Justice. By his appeal, Appellant contends that the trial
1 This appeal was transferred to this Court from the Third Court of Appeals by docket equalization
order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. 2 TEX. PENAL CODE ANN. § 19.02(b)(1). court erred by admitting Appellant’s video-recorded statement, and by omitting an
instruction in the charge regarding the voluntariness of his confession. We affirm.
BACKGROUND
Appellant does not contest the sufficiency of the evidence; therefore, only the facts
necessary for resolution of the appeal will be recited.
In February of 2021, shortly after midnight, Temple police officers were dispatched
to Appellant’s residence. When officers arrived, they found Claire Hernandez in the
passenger seat of her car with a gunshot wound to her head. Claire was taken by
ambulance to a nearby hospital where she was pronounced dead.
At the crime scene, Appellant told officers that he and Claire were sitting in her car
waiting for their friend Erica when someone drove by and shot Claire. He told officers
that he heard one gunshot, and he did not know which direction the shooter was driving.
Appellant stated he did not own a gun. Officers found two spent shell casings inside the
car. There was no exterior damage to the car and the windows were intact. All indications
were that Claire had been shot inside the car as she sat in the passenger seat. Appellant
initially denied drinking any alcohol, but later admitted that he had been drinking earlier in
the evening. The discrepancies between the evidence at the scene and Appellant’s
explanations led to his detention and transportation to the police department for
questioning. Because Appellant showed signs of intoxication and had difficulty staying
awake, he was unable to be interviewed for approximately twelve hours. Ultimately,
Appellant was charged with Claire’s murder.
2 At trial, forensic pathologist Dr. Chester Gwin testified that Claire sustained a
contact or near-contact wound to the left side of her forehead. The handgun used to kill
Claire was found by law enforcement beside a mattress leaning against the outside of
Appellant’s house. The handgun, identified as a 9mm Glock, was loaded; there was a
live round in the chamber and two bullets in the magazine. A firearm analyst, Ryan Mudd,
testified that the bullet recovered from Claire’s brain was fired from the weapon found
outside Appellant’s house. Additionally, the two shell casings found inside the car were
fired from the same gun.
At the end of the first day of testimony, the trial court considered the admissibility
of Appellant’s videotaped interview with Temple Police Detective John Leach. After a
hearing outside the presence of the jury, the trial court denied the motion to suppress and
ruled that Appellant’s statements were admissible. Detective Leach testified that he
attempted to interview Appellant at the police station, but he was unable to do so because
of Appellant’s apparent intoxication and inability to stay awake. Detective Leach was able
to interview Appellant at the jail after he “sobered up.” The interview was admitted into
evidence and the video was played for the jury.
In the interview, Appellant stated that he had the gun when he came out of his
house to meet Claire.3 He could not remember how the gun came out of his pocket, but
he admitted that he squeezed the trigger and the gun went off. Appellant said he blacked
out and could not remember what happened to the gun after Claire was shot. According
3 According to Appellant, he found the gun on the previous Monday.
3 to Appellant, both he and Claire had been drinking “a little bit” before she was shot. He
had also consumed a Xanax tablet “hours before” but he was not high.
At the conclusion of the trial on the merits, Appellant did not request a jury
instruction on the voluntariness of his statement to Detective Leach, nor did he object to
the absence of such an instruction in the jury charge. The jury found Appellant guilty, and
the trial court sentenced Appellant to twenty-two years in the Texas Department of
Criminal Justice. Appellant timely filed this appeal.
ANALYSIS
Issue One: Denial of Motion to Suppress
In his first issue, Appellant contends that the trial court erred by failing to suppress
his video-recorded interview with Detective Leach. He argues that admission of his
recorded oral statement violated both federal law under Miranda, and state law under
article 38.22 of the Texas Code of Criminal Procedure. See TEX. CRIM. PROC. CODE ANN.
art. 38.22; Miranda v. Arizona, 384 U.S. 436, 498–99, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). We review a trial court’s ruling on a motion to suppress for an abuse of discretion.
Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We apply a bifurcated
standard of review, affording almost total deference to a trial judge’s determination of
historical facts and reviewing the trial court’s application of law to the facts de novo.
Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016).
We first address the State’s argument that Appellant waived any issue regarding
the admission of his recorded statement by declaring he had “no objection” to the
admission of such evidence at trial. Preservation of error is a systematic requirement on
4 appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Though a trial court’s
denial of a prior motion to suppress normally preserves a complaint for review, the
situation changes when the complainant states, at trial, that he has no objection to the
evidence. Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013). Stating “no
objection” may, but does not necessarily, result in the abandonment of any complaint
regarding the admission of the evidence. See id. (whether statement of “no objection”
forfeits earlier preserved error is “context-dependent”). If the record plainly demonstrates
the defendant did not intend to abandon his earlier objection to the admission of the
evidence and the trial court did not construe the statement as such, then the reviewing
court should not regard it as waived. Id. If the record does not make it clear, then we
should consider the issue waived. Id. at 885–86.
From the record before us, it appears that the trial court granted Appellant’s
request for a motion in limine regarding the testimony of Detective Leach, who interviewed
Appellant at the jail.
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00184-CR
CHRISTOPHER JAMES DELEON JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 264th District Court Bell County, Texas1 Trial Court No. 83907, Honorable Paul L. LePak, Presiding
January 8, 2024 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.
Christopher James DeLeon, Jr., Appellant, appeals his conviction for the first-
degree felony offense of murder2 and sentence of twenty-two years’ incarceration in the
Texas Department of Criminal Justice. By his appeal, Appellant contends that the trial
1 This appeal was transferred to this Court from the Third Court of Appeals by docket equalization
order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. 2 TEX. PENAL CODE ANN. § 19.02(b)(1). court erred by admitting Appellant’s video-recorded statement, and by omitting an
instruction in the charge regarding the voluntariness of his confession. We affirm.
BACKGROUND
Appellant does not contest the sufficiency of the evidence; therefore, only the facts
necessary for resolution of the appeal will be recited.
In February of 2021, shortly after midnight, Temple police officers were dispatched
to Appellant’s residence. When officers arrived, they found Claire Hernandez in the
passenger seat of her car with a gunshot wound to her head. Claire was taken by
ambulance to a nearby hospital where she was pronounced dead.
At the crime scene, Appellant told officers that he and Claire were sitting in her car
waiting for their friend Erica when someone drove by and shot Claire. He told officers
that he heard one gunshot, and he did not know which direction the shooter was driving.
Appellant stated he did not own a gun. Officers found two spent shell casings inside the
car. There was no exterior damage to the car and the windows were intact. All indications
were that Claire had been shot inside the car as she sat in the passenger seat. Appellant
initially denied drinking any alcohol, but later admitted that he had been drinking earlier in
the evening. The discrepancies between the evidence at the scene and Appellant’s
explanations led to his detention and transportation to the police department for
questioning. Because Appellant showed signs of intoxication and had difficulty staying
awake, he was unable to be interviewed for approximately twelve hours. Ultimately,
Appellant was charged with Claire’s murder.
2 At trial, forensic pathologist Dr. Chester Gwin testified that Claire sustained a
contact or near-contact wound to the left side of her forehead. The handgun used to kill
Claire was found by law enforcement beside a mattress leaning against the outside of
Appellant’s house. The handgun, identified as a 9mm Glock, was loaded; there was a
live round in the chamber and two bullets in the magazine. A firearm analyst, Ryan Mudd,
testified that the bullet recovered from Claire’s brain was fired from the weapon found
outside Appellant’s house. Additionally, the two shell casings found inside the car were
fired from the same gun.
At the end of the first day of testimony, the trial court considered the admissibility
of Appellant’s videotaped interview with Temple Police Detective John Leach. After a
hearing outside the presence of the jury, the trial court denied the motion to suppress and
ruled that Appellant’s statements were admissible. Detective Leach testified that he
attempted to interview Appellant at the police station, but he was unable to do so because
of Appellant’s apparent intoxication and inability to stay awake. Detective Leach was able
to interview Appellant at the jail after he “sobered up.” The interview was admitted into
evidence and the video was played for the jury.
In the interview, Appellant stated that he had the gun when he came out of his
house to meet Claire.3 He could not remember how the gun came out of his pocket, but
he admitted that he squeezed the trigger and the gun went off. Appellant said he blacked
out and could not remember what happened to the gun after Claire was shot. According
3 According to Appellant, he found the gun on the previous Monday.
3 to Appellant, both he and Claire had been drinking “a little bit” before she was shot. He
had also consumed a Xanax tablet “hours before” but he was not high.
At the conclusion of the trial on the merits, Appellant did not request a jury
instruction on the voluntariness of his statement to Detective Leach, nor did he object to
the absence of such an instruction in the jury charge. The jury found Appellant guilty, and
the trial court sentenced Appellant to twenty-two years in the Texas Department of
Criminal Justice. Appellant timely filed this appeal.
ANALYSIS
Issue One: Denial of Motion to Suppress
In his first issue, Appellant contends that the trial court erred by failing to suppress
his video-recorded interview with Detective Leach. He argues that admission of his
recorded oral statement violated both federal law under Miranda, and state law under
article 38.22 of the Texas Code of Criminal Procedure. See TEX. CRIM. PROC. CODE ANN.
art. 38.22; Miranda v. Arizona, 384 U.S. 436, 498–99, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). We review a trial court’s ruling on a motion to suppress for an abuse of discretion.
Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We apply a bifurcated
standard of review, affording almost total deference to a trial judge’s determination of
historical facts and reviewing the trial court’s application of law to the facts de novo.
Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016).
We first address the State’s argument that Appellant waived any issue regarding
the admission of his recorded statement by declaring he had “no objection” to the
admission of such evidence at trial. Preservation of error is a systematic requirement on
4 appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Though a trial court’s
denial of a prior motion to suppress normally preserves a complaint for review, the
situation changes when the complainant states, at trial, that he has no objection to the
evidence. Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013). Stating “no
objection” may, but does not necessarily, result in the abandonment of any complaint
regarding the admission of the evidence. See id. (whether statement of “no objection”
forfeits earlier preserved error is “context-dependent”). If the record plainly demonstrates
the defendant did not intend to abandon his earlier objection to the admission of the
evidence and the trial court did not construe the statement as such, then the reviewing
court should not regard it as waived. Id. If the record does not make it clear, then we
should consider the issue waived. Id. at 885–86.
From the record before us, it appears that the trial court granted Appellant’s
request for a motion in limine regarding the testimony of Detective Leach, who interviewed
Appellant at the jail. Appellant did not file a written motion to suppress and the legal basis
of his motion is unclear. A hearing was held at the conclusion of the first day of testimony
after State’s counsel stated, “Your Honor, I think it’s time for the motion.”4 The trial court
held a hearing on the “motion” outside the presence of the jury. Detective Leach testified
that he attempted to interview Appellant at the police department, but Appellant “appeared
to be under the influence of some sort of substance and was having trouble staying
awake.” He placed Appellant on a felony hold and delayed the interview to later that
afternoon. The second time he met Appellant was at an interrogation room at the jail
4 According to a docket entry, Appellant’s counsel presented an oral motion to exclude “confession/statement which was subject of motion in limine.”
5 approximately twelve hours after the first attempt. According to Detective Leach,
Appellant had “sobered up” and was able to stay awake and speak coherently. He did
not appear to be intoxicated. Appellant was given his Miranda warnings and he
acknowledged each warning individually. When asked if he understood the warnings,
Appellant stated that he did. Detective Leach opined that Appellant waived his rights
under the warnings and “freely and voluntarily” submitted to the interrogation. Appellant’s
counsel’s brief cross-examination confirmed he answered “yes” to each individual
question asked when the Miranda warnings were given and reaffirmed his willingness to
talk to the detective. Appellant’s counsel did not elicit a response indicating Appellant’s
statements were involuntary.5 The trial court admitted the video recording of Appellant’s
interview with Detective Leach for the purpose of the hearing and announced it would
hear argument on the motion the next morning before the jury returned.
When trial resumed the following morning, the trial court asked for argument.
Trial counsel: Judge, I would say just depends on the evidence. The Court has already seen and heard from yesterday’s testimony. And in addition to that, I just ask the Court to grant the motion pled.6
State: Your, honor, there’s absolutely no evidence on those, any of those exhibits of any force, pressure, coercion, promise, anything that would render a confession involuntary. In fact[,] even though the detective could have talked to the defendant while he was intoxicated, the detective chose not to. The defendant was read his rights off of a card. Freely and voluntarily waived those rights and wanted to tell his story. This is a voluntary and knowing confession.
Trial Court: All right. I am denying the motion to suppress and to the extent that we have had a motion in limine this has been approaching the bench
5 In his brief, Appellant concedes he is not claiming that any law enforcement official intimidated,
coerced, or deceived him in securing his waiver of his Miranda rights. 6 Again, the record does not contain a written motion to suppress. Counsel’s response to the trial court is vague and tantamount to no argument at all.
6 outside the presence of the jury and statements of the defendant may be referenced at this time in evidence or argument.
...
Trial Court: Anything further on the record at this time?
Trial counsel: No, your honor.
When the videotaped interview was offered at trial, Appellant’s counsel stated, “No
objection.” The trial court replied, “Very good,” and the interview was played for the jury.
In our view, Appellant’s affirmative, “No objection, Judge” when the recorded
interview was offered, evinces an intent to abandon Appellant’s earlier opposition to the
admission of his interview. See Thomas, 408 S.W.3d at 885–86 (“no objection” statement
should be considered in context of entirety of record; statement waives previously
preserved error unless the record “plainly demonstrates” that defendant and trial court
understood otherwise). Moreover, the record indicates that, given the opportunity to note
his objection to the trial court’s ruling, Appellant’s counsel stated he had nothing further.
Notably, in admitting the recorded interview, the trial judge’s response of “very good”
indicates the trial court’s understanding that Appellant relinquished any objection to the
admissibility of his interview. See Harper v. State, 443 S.W.3d 496, 498 (Tex. App.—
Texarkana 2014, pet. ref’d) (record reveals nothing contradicting Appellant’s intention to
relinquish his previous challenge to the evidence and nothing inconsistent with the trial
court’s acceptance of that relinquishment). There is nothing in the record where Appellant
informed the trial court that his acquiescence to the admission of the interview was subject
to any objection under Miranda or article 38.22 of the Code of Criminal Procedure.
7 Therefore, we conclude that Appellant waived his complaint regarding the trial court’s
denial of his motion to suppress. We overrule Appellant’s first issue.7
Issue Two: Voluntariness Instruction
In his second issue, Appellant contends the trial court committed egregious error
by failing to sua sponte instruct the jury as to the voluntariness of his recorded statement
pursuant to article 38.22 of the Texas Code of Criminal Procedure.
A trial judge has an absolute duty to prepare a jury charge that accurately sets out
the law applicable to the case, whether requested by the defendant or not. Oursbourn v.
State, 259 S.W.3d 159, 179–81 (Tex. Crim. App. 2008). When a statute, such as article
38.22, requires an instruction under certain circumstances, that instruction is part of the
“law applicable to the case,” and the trial court commits error if it fails to include a written
instruction in the jury charge as required under the statute. Id. at 180–81.
Purported error in a jury charge is reviewed using a two-step process. Kirsch v.
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether error
exists. Second, we determine whether the error was sufficiently harmful to require
reversal based on the test set forth in Almanza.8 Id. The issue of error preservation is
not relevant until harm is assessed because the degree of harm required for reversal
7 The granting of a pre-trial motion in limine will not by itself preserve error. Martinez v. State, 98
S.W.3d 189, 193 (Tex. Crim. App. 2003). For error to be preserved with regard to the subject matter of the motion in limine, it is necessary that an objection be made at the time when the subject is raised during trial and an adverse ruling secured from the trial court. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). Here, Appellant did not object when the recorded interview was offered. As such, Appellant failed to preserve any error for review. 8 See Almanza v. State, 686 S.W.2d 157, 171–72 (Tex. Crim. App. 1985) (en banc) (holding that if
no proper objection was made at trial, an accused will obtain a reversal only if the error is so egregious and created such harm that he was denied a “fair and impartial trial.”).
8 depends on whether the error was preserved. Id. Where, as here, the defendant fails to
raise a timely objection to the omission of a voluntariness instruction, reversal is required
only if the error was fundamental in the sense that it was egregious and created such
harm that the defendant was deprived of a fair and impartial trial. Villarreal v. State, 453
S.W.3d 429, 433 (Tex. Crim. App. 2015); Oursbourn, 259 S.W.3d at 165, 174.
Jury charge error is egregiously harmful if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory. Villarreal,
453 S.W.3d at 433. Egregious harm is a “high and difficult standard” to meet. Id. A
determination of egregious harm must be made on a case-by-case basis and be
adequately supported by the record. Id. In examining the record to determine whether
charge error is egregious, we consider: (1) the entirety of the jury charge itself, (2) the
state of the evidence, including contested issues and the weight of probative evidence,
(3) the arguments of counsel, and (4) any other relevant information revealed by the trial
record as a whole. Id.; Gelinas v. State, 398 S.W.3d 703, 705–06 (Tex. Crim. App. 2013).
Here, Appellant contends that the voluntariness of his videotaped statement to
Detective Leach was litigated before the trial court when it considered his motion to
suppress. We disagree. During the hearing on the oral motion, Appellant’s counsel did
not cite article 38.22 or address the language of the statute as grounds for his motion, did
not argue that the statement made by Appellant was involuntary, and did not seek or
secure rulings from the trial court regarding whether Appellant’s statement was
involuntary. See TEX. CRIM. PROC. CODE ANN. art. 38.22, § 6. When the video statement
was admitted into evidence and played for the jury, Appellant’s counsel did not object on
the basis of article 38.22 or otherwise argue that the statement was involuntary.
9 Moreover, Appellant did not present evidence before the jury that his statement was
involuntary. As such, a voluntariness instruction was not warranted. See Watts v. State,
371 S.W.3d 448, 464 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“For the instruction
to be warranted, the record must also contain some evidence presented at trial that would
permit a reasonable jury to conclude that the statement was not voluntary.”). Without any
evidence that the statement was involuntary, we cannot say that article 38.22 ever
became the law applicable to the case. Id. at 464–65. We overrule Appellant’s second
issue.
CONCLUSION
Having overruled both of Appellant’s issues on appeal, we affirm the judgment of
the trial court.
Judy C. Parker Justice
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