
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 attempted sexual
assault and sentenced to eight years' imprisonment.  See Tex. Pen. Code Ann. § 15.01 (West 2003),
§ 22.011 (West Supp. 2004).  On appeal, Manning challenges the legal and factual sufficiency of the
evidence 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.  
	Whittaker testified that she entered the closet, and Manning followed 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 cover 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 Brackenridge 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 his
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.  See 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.  Id. § 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
incident, 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.  See
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 conduct
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.  Jackson 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.  See 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.  See 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), cert. 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.  Williams v. State,
937 S.W.2d 479, 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 intentionally attempted to
commit sexual assault beyond a reasonable doubt.  Manning followed Whittaker into the closet,
closed the door, removed his erect penis from his pants, 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 assault
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."  Clewis
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 rationally support a finding of guilt
beyond a reasonable doubt.  Zuniga 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.  Id.  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.  Clewis, 922 S.W.2d at 135.  A factual-sufficiency 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 appear 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--recounted
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 and lack of medication is not so overwhelmingly
contrary to 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
Do Not Publish
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.  
