Opinion issued October 22, 2019




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-18-00586-CR
                           ———————————
                  LEROY PHILLIP MITCHELL, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


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


                                 OPINION

      A jury convicted appellant, Leroy Phillip Mitchell, of murder1 and assessed

punishment at 55 years’ confinement. In two issues on appeal, appellant contends


1
      See TEX. PENAL CODE § 19.02
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.

                                  BACKGROUND

      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


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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,


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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


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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 rule does not authorize excluding:

          ****

          (c) a person whose presence a party shows to be essential to
          presenting the party’s claim or defense[.]

TEX. R. EVID. 614(c). The State responds that the trial court properly exempted

Ranger Owles from the Rule because his presence was essential to the State’s

presentation of its case.



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Background

      Here, the parties invoked The Rule before opening statements. At the first

break in the trial, during Cooley’s testimony, the State moved to exclude Ranger

Owles, from The Rule, arguing as follows:

      The State would ask that Texas Ranger [J.] Owles be designated as our
      case agent for this particular case. We’ve worked with him extensively
      on this particular investigation. And we would ask him to be exempt
      from the Rule at least at a minimum for the next witness’s testimony,
      Devante Miller, because [J.] as the crime scene investigator is the one
      that spoke to the witnesses, the one that looked at all the crime scene
      evidence; and his understanding of what Devante testifies to will be
      critical in terms of his understanding of the evidence and the facts.

      In addition, he’s also the one that interviewed the defendant and the
      defendant’s stories so I think he would need to have an understanding
      of that as well in relation to Devante’s testimony.

      So I believe that exempting him to the Rule would be critical for us so
      that he can more informatively, if that’s a word—present the evidence
      to the jury.

      Defense counsel asked to take Ranger Owles on voir dire, and, during

questioning, established that Ranger Owles was the lead investigator on the case and

had discussed the case with the prosecutor “many times.” He had listened to an

interview with Miller but was not assisting the prosecution to “schedule witnesses

and participate in key strategy and things like that.” He agreed that he was a witness

who would testify about “what [he] did and what [he] saw.”

      The prosecutor then questioned Owles and established that he was “the chief

investigator [who] was called out to the scene and worked the actual crime scene.”
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He had had the “opportunity to go [to the crime scene] and have a look at all of that

and form opinions about how this crime may have occurred[.]” He agreed that

listening to Miller’s testimony “would help [him] in communicating to the jury what

[he] believe[s] the evidence shows and what the evidence is[.]”

      The trial court then overruled appellant’s objection to exempting Ranger

Owles from the Rule and gave appellant a running objection to Owles’s testimony.

Applicable Law

      When a party invokes the Rule, or it is invoked on the court’s own motion,

the trial court orders witnesses to remain outside the courtroom. Routier v. State, 112

S.W.3d 554, 590 (Tex. Crim. App. 2003). There are exceptions to the Rule: the

parties, people who are shown to be essential to a party’s case, and generally the

victim of the offense. Id.; see TEX. R. EVID. 614. The Rule is designed to prevent

witnesses from altering their testimony, consciously or not, based on other

witnesses’ testimony. Routier, 112 S.W.3d at 590; Webb v. State, 766 S.W.2d 236,

239 (Tex. Crim. App. 1989). Under Rule 614, a party—here, the State—has the

burden to show that its witness is one of those whose exclusion from the courtroom

is not authorized by the Rule. See Russell v. State, 155 S.W.3d 176, 180 (Tex. Crim.

App. 2005). The trial court will be given discretion to decide whether a witness fits

under one of the exceptions to exclusion. See Martinez v. State, 867 S.W.2d 30, 40




                                          7
(Tex. Crim. App. 1993); Hullaby v. State, 911 S.W.2d 921, 929 (Tex. App.—Fort

Worth 1995, pet. ref’d).

Analysis

      Appellant, citing White v. State, argues that the trial court abused its discretion

in exempting Ranger Owles from the Rule because the State failed to meet its burden

to show that his presence was essential to the presentation of its case. See 958

S.W.2d 460, 467 (Tex. App.—Waco 1997, no pet.). Specifically, appellant argues

that “the State’s proffered reasons were conclusory[.]”

      In White, the State requested, and the trial court agreed, to exempt a Texas

Ranger from the Rule, arguing that “his presence is necessary for the presentation of

its case.” Id. at 461 n.1. The court held that the trial court abused its discretion in

exempting the Ranger from the rule based only on the comment that “his presence

is necessary to the presentation of the State’s case.” Id. at 463. The court also noted

that it could find no evidence in the record to show that the trial court carefully

considered the “critical importance” or the impact of the Ranger’s testimony and that

the State’s showing on the issue was “wholly inadequate.” Id.

      In Allen v. State, the State argued that its witness should be allowed to remain

in the courtroom because she “had been previously designated as an outcry witness

in other cases before the trial court.” 436 S.W.3d 815, 823 (Tex. App.—Texarkana

2014, pet. ref’d). The State also argued that its witness needed to remain in the


                                           8
courtroom because she was an expert. Id. The court of appeals held that simply

noting that the witness was an “outcry witness” or an “expert” did not show that the

witness’s presence in the courtroom was essential to the presentation of its case. Id.

      White and Allen stand for the proposition that the State does not meet its

burden to show that an exemption is required by stating such as a conclusion or by

simply labeling its witness as “necessary,” an “outcry witness,” or an “expert.” See

also Russell, 155 S.W.3d at 181 (holding that “designating a witness as a ‘case agent’

does not make a witness one whom the court may not exclude from the courtroom

under Rule 614”); see also Hendley v. State, 783 S.W.2d 750, 752 (Tex. App.—

Houston [1st Dist.] 1990, no pet.) (holding prosecutor’s “one-sentence, conclusory

statement that [probation officer] was essential” insufficient to meet State’s burden

to show witness’s presence essential); Barnhill v. State, 779 S.W.2d 890, 892 (Tex.

App.—Corpus Christi 1989, no pet.) (holding State failed to prove entitlement to

exemption by arguing, “[W]e are entitled to have a case worker.”).

      In contrast, in Bath v. State, the trial court did not abuse its discretion in

applying an exemption because “the prosecution explained that [the witness] was

involved with the investigation of this case since the date of the offense; that he was

the lead investigator for the prosecution and helped coordinate with all the law

enforcement agencies; that he assisted the prosecution in preparing this case for trial;

and that his assistance and expertise would be needed with numerous items of


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evidence” to be presented at trial. 951 S.W.2d 11, 23 (Tex. App.—Corpus Christi

1997, pet. ref’d).

      Similarly, in Kelley v. State, the trial court did not abuse its discretion by

allowing the witness, a Texas Ranger, to remain in the courtroom, noting, “In the

instant case, the prosecutor, under oath, establish the witness’s connection with the

case as the lead investigator, his expertise in certain fields, the number of evidentiary

items to be offered and the expert witnesses to be called, and her need for the

witness’s assistance during trial.” 817 S.W.2d 168, 172 (Tex. App.—Austin 1991,

pet. ref’d); see also Hullaby v. State, 911 S.W.2d 921, 929 (Tex. App.—Fort Worth

1995, pet. ref’d) (holding no abuse of discretion in allowing police officer to remain

in courtroom “to hear and interpret the meaning of ‘gang’ slang and symbolism”);

Tell v. State, 908 S.W.2d 535, 543–44 (Tex. App.—Fort Worth 1995, no pet.)

(holding no abuse of discretion in allowing defense investigator to remain in

courtroom because “the defense relied on [his] investigation in preparing [] defense”

and “trial court’s order granting [the defendant’s] pretrial motion for an investigator”

gave rise to inference that investigator was necessary to defense).

      Unlike White and Allen, this case does not involve a mere conclusory

allegation by the State that Ranger Owles was necessary to its presentation or simply

labeling him as a “case agent.” Here, the trial court held a bench conference, outside

the presence of the jury, that occupied 10 pages of the reporter’s record. The hearing


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included argument by both parties’ counsel, as well as voir dire examination of the

witness, Ranger Owles. Presented at this hearing was evidence that established

Ranger Owles’s connection to the State’s case “as the crime scene investigator . . .

the one that spoke to the witnesses, the one that looked at all the crime scene

evidence; and [that] his understanding of what Devante testifie[d] to w[ould] be

critical in terms of his understanding of the evidence and the facts.” The prosecutor

argued that exempting Ranger Owles would be critical in presenting its evidence to

the jury. There was also evidence that Ranger Owles was the lead investigator, had

been to the crime scene, and had met with the prosecutor on the case “many times.”

The prosecutor represented that Ranger Owles knew the State’s strategy of the case

and “that [he] [was] not going to change his testimony or his opinion based on what

he hear[d] on direct examination or on cross-examination.”

      Because the State presented more than “mere conclusions” to the trial court,

this case is more like Bath and Kelley, and not like White and Allen. As such, the

trial court did not abuse its discretion in exempting Ranger Owles from the Rule.

      Accordingly, we overrule issue one.

  SUFFICIENCY OF EVIDENCE ON REJECTION OF SELF-DEFENSE

      In issue two, appellant contends that “the State did not present legally

sufficient evidence that [appellant’s] actions were not justified.” Specifically,




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appellant argues that “[t]he State did not remove all reasonable doubt that [appellant]

did not shoot Brisker in self-defense.”

Standard of Review and Applicable Law

      A person commits murder if it is shown that the person: (1) intentionally or

knowingly causes the death of an individual; or (2) intends to cause serious bodily

injury and commits an act clearly dangerous to human life that causes the death of

an individual. TEX. PENAL CODE § 19.02(b)(1)–(2).

      Self-defense is statutorily defined: “A person is justified in using deadly force

against another: (1) if the actor would be justified in using force against the other

under Section 9.31; and (2) when and to the degree the actor reasonably believes the

deadly force is immediately necessary [.]” Id. § 9.32. Section 9.31 provides that “a

person is justified in using force against another when and to the degree the actor

reasonably believes the force is immediately necessary to protect the actor against

the other’s use or attempted use of unlawful force.” Id. at § 9.31.

      The defendant has the initial burden to produce some evidence to support a

claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.

2003). Once the defendant produces some evidence, the burden shifts to the State,

which bears the ultimate burden of persuasion to disprove the raised defense. Saxton

v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Thus, to convict a defendant

of murder after he has raised the issue of self-defense, the State is required to prove


                                          12
the elements of the offense beyond a reasonable doubt and to persuade the jury

beyond a reasonable doubt that the defendant did not kill in self-defense. Zuliani, 97

S.W.3d at 594; McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d).

       We review the legal sufficiency of the evidence to support a jury’s rejection

of a self-defense claim under the Jackson v. Virginia standard. Smith v. State, 355

S.W.3d 138, 144 (Tex. App.—-Houston [1st Dist.] 2011, pet. ref’d) (applying

standard to jury’s rejection of self-defense claim); see also Saxton, 804 S.W.2d at

914 (distinguishing standard of review for defensive claims in which State bears

burden of persuasion and affirmative defenses in which defendant bears burden of

proof). Under that standard, we must examine all the evidence in the light most

favorable to the verdict and determine whether a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson

v. Virginia, 443 U.S. 307, 319 (1979).

       In self-defense cases, we are required to review all the evidence presented at

trial in the light most favorable to the verdict to determine if any rational trier of fact

would have found the essential elements of the charged offense beyond a reasonable

doubt and also would have found against appellant on the self-defense issue beyond

a reasonable doubt. Saxton, 804 S.W.2d at 914. Further, the court must defer to the

jury’s determinations of the witnesses’ credibility and the weight to be given their


                                            13
testimony, as the jury is the sole judge of those matters. Jackson, 443 U.S. at 326;

Brooks v. State, 323 S.W.3d 893, 899–900 (Tex. Crim. App. 2010). We must be

mindful that self-defense is a fact issue to be determined by the jury and that the jury

is free to accept or reject any defensive evidence on the issue. Saxton, 804 S.W.2d

at 913–14.

Analysis

      Appellant claims that the State “did not demonstrate beyond a reasonable

doubt that [he] did not shoot Brisker in self-defense.” In support, appellant points

only to the evidence in his favor: (1) that Miller admitted that he had handled the

gun used to shoot Brisker, (2) that Cooley indicated to a Waller County Sheriff’s

Office investigator, by clapping, that she heard three shots in rapid succession, not

two, (3) that the Rangers did not “take any action to test theories about the sequence

or timing of the shots that left Brisker dead,” (4) that the medical examiner did not

negate the defense theory that the shots were fired in self-defense, and (5) that the

defendant, who was so upset that he defecated on himself, told a friend immediately

after the shooting that Brisker was threatening him with a gun.

      Here, the evidence was sufficient to support appellant’s conviction for

murder. While it is true that appellant and Brisker were “arguing” and “wrestling”

before the shooting, and Brisker slammed appellant to the ground repeatedly, Miller

saw Brisker let appellant go. Appellant then, instead of fleeing through an unblocked


                                          14
side door, picked up a gun from the kitchen bar, pointed it at Brisker, and fired.

Miller did not see Brisker with a gun, despite Brisker’s earlier verbal threats “to

shoot[] everybody in here.”

      Miller saw appellant fire two shots, and Cooley testified that she heard two

shots. Miller saw appellant flee the apartment, only to return and fire a final shot

into Brisker’s head. Cooley, although unable to identify appellant as the man she

saw leaving the apartment, testified that she saw a man leave the apartment, go back

in, and then leave again. This corroborated Miller’s testimony about appellant

leaving and returning before firing his final shot at Brisker’s head. Additionally,

video evidence corroborates the eyewitness testimony. The video showed that

appellant fled the scene of the shooting, returned to the scene, and then fled again.

Finally, there was evidence that appellant admitted firing a third shot because

Brisker was “moving.”

      Appellant was not entitled to use deadly force against an unarmed and injured

man. See Graves v. State, 452 S.W.3d 907, 911 (Tex. App.—Texarkana 2014, pet.

ref’d) (finding no evidence of self-defense when initial aggressor was shot only after

he was in the process of backing away from defendant); Sanchez v. State, 418

S.W.3d 302, 310 (Tex. App.—Fort Worth 2013, pet. ref'd) (finding defendant “acted

out of anger, not protective instinct, in pursuing the unarmed [complainant]”);

Wilson v. State, No. 01-17-00788-CR, 2019 WL 346892, at *3 (Tex. App.—Houston


                                         15
[1st Dist.] Jan. 29, 2019, pet. ref’d) (finding no evidence of self-defense when man

was shot after stepping back and throwing his hands up after wrestling with

defendant).

      Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that a rational trier of fact could have found the essential elements of the

charged offense beyond a reasonable doubt and could also have found against

appellant on the self-defense issue beyond a reasonable doubt. See TEX. PENAL CODE

ANN. § 9.32(a); Saxton, 804 S.W.2d at 914. As such, the evidence is legally

sufficient to support appellant’s conviction.

      Accordingly, we overrule issue two.

                                    CONCLUSION

      We affirm the trial court’s judgment.



                                                Sherry Radack
                                                Chief Justice

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

Publish. TEX. R. APP. P. 47.2(b).




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