### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00128-CR

Leroy Manning, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT

NO. 2022703, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Leroy Manning was convicted after a bench trial of at tempted sexual

assault and sentenced to eight years’ imprisonment. S ee Tex. Pen. Code Ann. § 15.01 (West 2003),

§ 22.011 (West Supp. 2004). On appeal, Manning challenges the legal and factual sufficiency of the

ev idence to support the specific-intent element of the offense. We will affirm the trial court’s

judgment of conviction.

Manning was at the emergency room of Brackenridge Hospital on July 12, 2002, to

get some Haldol medication, which he takes to control his schizophrenic paranoia. He arrived at the

hospital wearing only a loose pair of jeans, without any shoes or a shirt. He was whispering a lot and

wandering around. While Manning waited for his medication, an emergency room nurse, Lori

Whittaker, asked Manning to accompany her to a closet where the hospital kept extra clothing so that

they could find something more suitable for him to wear.1 It is not clear from the record whether Manning was on his medication that day. He was

asked on cross-examination, “Do you recall, Mr. Manning, on the date alleged in the indictment, July

12th of this year, whether or not you were on your medication?” He replied, “I was on medication,

but I had just got out of Shoal Creek Hospital. I had went out to Shoal Creek that day and I was

coming back to go to this friend’s house I was living at, at Jay Jay’s home to get the prescription for

it. I couldn’t get no medicine without the prescription.” He earlier testified that he was trying to get

his medicine on July 12.

2

Whittaker testified that she entered the closet, and Manning follow ed her in. As

Whittaker held up a pair of pants to see if they would fit Manning, he turned away from her, closed

the door, removed his erect penis from his pants, and turned back towards Whittaker. Manning then

moved towards Whittaker, backing her up against the wall, pressing against her mid-section with his

exposed penis, and inserting his fingers into the waistband of her pants. Manning was whispering

incoherently or inaudibly throughout the closet incident.

Whittaker began screaming for help. Within seconds, a hospital employee entered

the closet and removed Manning, who did not struggle or attempt to flee. Some minutes later, a

police officer arrived and arrested Manning. The officer also attempted to adjust Manning’s pants

to c over his still exposed penis. Whittaker testified that Manning did not appear to be violent or

angry at any point in the episode and that he had appeared confused while waiting for his medication,

wandering about the hospital. She also testified that Manning was able to follow commands.

At trial, Manning testified that he did not remember any portion of the alleged

incident, the individuals involved, or even going to Brac k enridge the day in question. Instead, he

remembered going to get medication from a different hospital on that day. 1 Manning did not present

testimony from his treating physicians at Shoal Creek Hospital or introduce any evidence about his3

illness specifically or about schizophrenia generally, such as its effect on an affected individual’s

ability to comprehend or control his actions or the effects of the illness going untreated; he also did

not pursue an insanity defense.

On appeal, Manning asserts that his conviction must be reversed because the evidence

is legally and factually insufficient to support the requirement of the offense that he knowingly or

intentionally attempted to cause the penetration of Whittaker’s sexual organ. S ee Tex. Pen. Code

Ann. §§ 15.01, 22.011. A person acts intentionally with respect to the nature of his conduct or to

a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause

the result. I

d. § 6.03(a) (West 2003). A person acts knowingly with respect to the nature of his

conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct

or that the circumstances exist; he acts knowingly with respect to a result of his conduct when he is

aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b).

Manning argues that due to his mental illness he was not functioning normally on July

12th and therefore could not have knowingly or intentionally attempted to commit the offense. He

cites the following evidence in the record as support: he appeared confused on the day of the

in c ident, he was not violent towards Whittaker, he mumbled incoherently, he wandered about the

hospital awaiting his medication, and he wore ill-fitting clothing. The State rejoins that despite this

evidence, Manning’s intent to commit sexual assault can be inferred from his acts and conduct. S ee

Patrick v. State

, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (citing Beltran v. State

, 593 S.W.2d

688, 689 (Tex. Crim. App. 1980)); Hernandez v. State

, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991)

(jury may infer intent from any facts that tend to prove its existence, such as acts, words, and conduct4

of defendant). Intent is most often proven through the circumstantial evidence surrounding the

crime. Hernandez , 819 S.W.2d at 810.

When reviewing the legal sufficiency of the evidence, we look at all the evidence in

the light most favorable to the verdict to determine whether a rational finder of fact could have found

the essential elements of the crime beyond a reasonable doubt. J ackson v. Virginia

, 443 U.S. 307,

319 (1979); Johnson v. State

, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). This standard of review is

also applicable to bench trials. S ee Diaz v. State , 902 S.W.2d 149, 151 (Tex. App.—Houston [1st

Dist.] 1995, no pet.). In a bench trial, the trial court is the trier of fact and the judge of the credibility

of the witnesses and the weight to be given their testimony; the trial court is free to accept or reject

any or all of any witness’s testimony. S ee Joseph v. State

, 897 S.W.2d 374, 376 (Tex. Crim. App.

1995); Wicker v. State

, 667 S.W.2d 137, 141 (Tex. Crim. App. 1984), c ert. denied

, 469 U.S. 892

(1984). The appellate court’s duty is not to re-weigh the evidence from reading a cold record, but

to act as a due-process safeguard ensuring only the rationality of the fact-finder. W illiams v. State

,

937 S.W.2d 4 79, 483 (Tex. Crim. App. 1996). Any inconsistencies in the evidence should be

resolved in favor of the verdict. Moreno v. State , 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

Viewing all the evidence in the light most favorable to a finding of guilt, we conclude

that a rational fact-finder could have found that Manning knowingly or intentio nally attempted to

commit sexual assault beyond a reasonable doubt. Manning followed Whittaker into the closet,

closed the door, removed his erect penis from his pa nts, pushed Whittaker up against the wall,

pressed his exposed penis against her mid-section, and slipped his fingers into her waistband despite

her cries for help. From this evidence, the trial court could infer Manning’s intent to sexually assault5

Whittaker. Although there is evidence that Manning is mentally ill and was perhaps confused,

disoriented, and off his medication at the time of the incident, there is legally sufficient evidence to

support the trial court’s finding beyond a reasonable doubt that Manning knowingly or intentionally

intended to commit sexual assault. We overrule Manning’s second point of error.

In a factual-sufficiency review, the reviewing court “views all the evidence without

the prism of ‘in the light most favorable to the prosecution,’” and sets aside the verdict only if it is

“so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” C lewis

v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In such a review, the court asks whether a

neutral review of all the evidence, both for and against the finding, demonstrates that the proof of

guilt is too weak or that the contrary evidence is too strong to ratio nally support a finding of guilt

beyond a reasonable doubt. Z uniga v. State

, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20

(Apr. 21, 2004). In other words, considering all the evidence in a neutral light, the court determines

whether the jury was rationally justified in finding guilt beyond a reasonable doubt. I d. Appellate

courts are not free to reweigh the evidence and set aside a jury verdict merely because the reviewing

judges feel that a different result is more reasonable. C lewis , 922 S.W.2d at 135. A factualsufficiency review must employ appropriate deference to the fact-finder’s role as the sole judge of

the weight and credibility to be given to witness testimony. Johnson , 23 S.W.3d at 7.

Although the State does not ap pear to contest that Manning has schizophrenic

paranoia, there is no evidence in the record concerning what effects such an illness might have had

on Manning’s ability to comprehend or be conscious of his actions or their consequences on July 12.

Although Manning’s testimony was that he did not remember the events of that day, three

witnesses—Whittaker, the hospital employee who rescued her, and the arresting officer—recounted6

consistent stories and conduct by Manning from which a rational fact-finder could infer his criminal

intent. The trial judge, as the sole judge of the weight and credibility of the witnesses, was free to

disbelieve Manning’s testimony or discount its worth. Being confused, wandering about, and

whispering incoherently may have been symptoms of Manning’s untreated schizophrenia; however,

such symptoms do not, without more, compel the inference that Manning lacked the specific intent

to commit sexual assault against Whittaker. Rather, the actions he took against Whittaker compel

the opposite inference: that he intended to sexually assault her and would have had he not been

apprehended. The evidence Manning cites to support his argument that he was not functioning

normally on July 12 due to his mental illness a nd lack of medication is not so overwhelmingly

contrary t o a finding of guilt as to render the trial court’s verdict clearly wrong or unjust. We

overrule Manning’s first point of error.

CONCLUSION

For the foregoing reasons, we overrule Manning’s points of error and affirm the trial

court’s judgment.

__________________________________________

Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Affirmed

Filed: June 24, 2004

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