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Mitchell v. State

Court of Appeals of Texas, First District

October 22, 2019


          On Appeal from the 506th District Court Waller County, Texas Trial Court Case No. 15-04-15198

          Panel consists of Chief Justice Radack and Justices Keyes and Landau.



         A jury convicted appellant, Leroy Phillip Mitchell, of murder[1] 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.


         On 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."

         Cooley and Miller testified to the events surrounding Brisker's murder, and they each gave somewhat different versions of the event.

         Cooley 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 of him."

         After 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.

         The 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.

         A 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 nothing."

         Miller 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 here."

         Miller 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.

         A video 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."

         RULE OF EVIDENCE 614

         In his 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 ...

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