Appeal from the 506th District Court Waller County, Texas
Trial Court Case No. 15-04-15198
consists of Chief Justice Radack and Justices Keyes and
RADACK CHIEF JUSTICE
convicted appellant, Leroy Phillip Mitchell, of
murder and assessed punishment at 55 years'
confinement. In two issues on appeal, appellant contends that
(1) the trial court abused its discretion when it allowed a
State's witness to remain in the courtroom in violation
of "The Rule" found in Texas Rule of Evidence 614
and (2) the evidence is legally insufficient to support the
jury's rejection of his self-defense claim. We affirm.
February 3, 2015, Tale Brisker was shot and killed in his
Prairie View apartment. At the time of the incident, several
people lived in Brisker's apartment, including Devante
Miller, William "Paco" Gongoria, and two
individuals known as "EO" and "Uncle
Nick." Aleshia Cooley, Brisker's girlfriend, was
visiting and staying with Brisker at the time of the events.
Appellant did not live in the apartment, but he was
"always there." Miller admitted that he and Paco
sold enough marihuana out of the apartment "to live
on." The area was located in a "high-crime"
neighborhood, and the apartment had previously been robbed,
so the occupants kept a "house gun." Brisker did
not get along with his roommates, and he was described by
Miller as an "asshole" that "tried to big boy
everybody, even though he was younger."
and Miller testified to the events surrounding Brisker's
murder, and they each gave somewhat different versions of the
stated that she and Brisker intended to look for another
apartment that day because Brisker and his roommates'
"personalities weren't mixing." Cooley claims
that, on the morning of the murder, Brisker left her at the
apartment to retrieve shoes from his friend. While Brisker
was gone, Cooley overheard Miller on the phone calling
Brisker a "show off" and saying that "he was
going to have someone come up there and make an example out
Brisker returned to the apartment, Cooley claims that the two
of them left the apartment to go look for a new apartment.
When Cooley and Brisker got into their car, Brisker realized
that he needed gas and his credit card to pay for it. Cooley
waited in the car while Brisker went back into the apartment
to retrieve his credit card. Cooley testified that, while
waiting in the car and talking on the phone with her brother,
she heard a gunshot. She hung up the phone and then heard
another gunshot. Cooley jumped into the driver's seat of
the car because she was going to drive away, but then decided
to stay because Brisker was still in the apartment. Cooley
saw someone she did not know leave the apartment, then jog
back in, and then leave the apartment again. The person she
saw met up with someone outside and then ran away laughing.
Several other people then came out of their apartments, but
Brisker did not.
shooting itself was witnessed by Devante Miller,
appellant's friend and Brisker's roommate. Miller
stated that, early that morning, he was sleeping on the sofa
when he awoke to the noise of Paco weighing marihuana in the
kitchen. He testified that Brisker came out of his room and
confronted Paco about the noise, which resulted in an
argument. Afterwards, Miller went upstairs to continue
sleeping. Around noon, Miller came back downstairs, and
appellant, who was visiting, complained about Brisker
slamming the front door. Appellant was annoyed that he had to
get up and close the front door after Brisker had slammed it.
little after noon, both appellant and Miller were in the
living area when Miller heard a sound like the cocking of a
gun coming from Brisker's bedroom. Appellant did not hear
the sound of a gun cocking, and when Miller said something,
appellant responded that Brisker "ain't about to do
testified that, when Brisker came out of his room, appellant
confronted him about slamming the door. Appellant said,
"Hey man, you made me get up and close the door after
you slammed it," to which Brisker responded, "Man,
I didn't slam no door." The argument became physical
and "turned into wrestling." Miller testified that
Brisker ended up on top of appellant and slammed appellant
down three times, "boom, boom, boom." Brisker let
appellant go and declared, "If he ain't out of this
house by the time I get back, I'm shooting everybody in
testified that appellant then stood up, walked around the
kitchen island, picked up the house gun, aimed it at Brisker,
and fired. The shot passed through Brisker and hit Miller in
the mouth. Miller ended up on the floor and began crawling
towards the kitchen. Miller heard another gunshot and saw
that Brisker had been hit in the stomach. Miller testified
that he saw Brisker sliding on his back towards the front
door and that Brisker "told Paco that he couldn't
feel his legs." Miller stated that appellant fled the
apartment after those two shots, but seconds later walked
back in and fatally shot Brisker at close range in the head.
on the exterior of the building corroborated Miller's
testimony and showed appellant jogging out of the apartment,
hesitating for a moment, then walking back into the unit.
During a police interview, appellant admitted to firing three
shots at Brisker, with the third shot to the head because
Brisker "was moving."
OF EVIDENCE 614
first issue, appellant contends that "the Trial Court
erred when it allowed Texas Ranger J. Owles to remain in the
courtroom during the testimony of [State's witness
Devante] Miller," in violation of Texas Rule of Evidence
614, known as "The Rule," which provides in part:
At a party's request, the court must order witnesses
excluded so that they cannot hear other witnesses'
testimony. Or the court may do so on its own. But this ...