Summary
holding that the jury may believe all, some, or none of a witness's testimony
Summary of this case from Lopez v. StateOpinion
NO. PD-1246-18
04-01-2020
Lydia METCALF, Appellant v. The STATE of Texas
OPINION
Hervey, J., delivered the opinion of the Court in which Keasler, Richardson, Newell, and Walker, JJ., joined.
Appellant, Lydia Metcalf, was convicted as a party of second-degree felony sexual assault based on her husband's anal rape of their then 16-year-old daughter, Amber. Metcalf was sentenced to three years' imprisonment but was not fined. On appeal, she argued that the evidence is legally insufficient because it did not show that she had the intent to promote or assist her husband's sexual assault of their daughter. The court of appeals agreed and rendered an acquittal. We granted the State's petition for discretionary review asking us to review the decision of the court of appeals.
Amber is the pseudonym adopted by the court of appeals, and we will continue to use it. Metcalf v. State , 562 S.W.3d 48, 50 n.1 (Tex. App.—Texarkana 2018).
The court of appeals did not address Metcalf's three other points of error.
Because we agree with the lower court, we will affirm its acquittal. Under the hypothetically correct jury charge, the State had to prove that Metcalf, at the time of the offense, intended to promote or assist the commission of the anal penetration alleged in the indictment. But because the evidence does not show that it was Metcalf's conscious objective or desire for Allen to sexually assault Amber, the evidence is insufficient to show that she intended to promote or assist commission of that offense.
FACTS & PROCEDURAL HISTORY
Metcalf's husband, Allen Metcalf (Allen), sexually assaulted their daughter, Amber, over several years. He pled guilty to twelve counts of second-degree sexual assault and three counts of indecency with a child. Metcalf was indicted on one count of anal-penetration sexual assault that occurred on or about December 2010. She was charged as the primary actor, but the jury was instructed that it could convict her as a party under Section 7.02(a)(2) or Section 7.02(a)(3). The jury convicted Metcalf as a party, and she was sentenced to three years' imprisonment.
Since this offense was committed, the legislature has added a new statutory subsection under which Allen could have been charged with first-degree felony sexual assault. Act of May 24, 2019, 86th Leg., R.S., ch. 738, § 2, 2019 Tex. Sess. Law Serv. 2049–50 (codified at Tex. Penal Code § 22.011(f)(2) ) (citing Tex. Penal Code § 25.02 (prohibiting sexual intercourse and deviate sexual intercourse with certain family members)).
Section 7.02(a)(2) and (a)(3) of the Penal Code state that,
(a) person is criminally responsible for an offense committed by the conduct of another if:
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(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
Tex. Penal Code § 7.02(a)(2) –(a)(3).
The abuse began when Amber was 13 years old and lived in Houston. Allen would go into her room at night and sexually abuse her. At first, he would touch her breasts under her clothes. But his behavior escalated. He began to digitally penetrate her, and later, he began engaging in vaginal intercourse with her. In a voluntary statement, Metcalf said that one time she woke up at 2:30 a.m. when they lived in Houston "to find Allen coming back to bed. He said he was just checking on the kids[,] but I thought it was strange." Amber did not tell anyone about the abuse at the time because Allen threatened to hurt her young siblings, and she believed him since he was already sexually abusing her.
At that time, one of her siblings was almost 5 years old and the other was 4 years old.
When Amber was about 14 years old, her family moved to Carthage. After they moved, Allen went into her room every night except when she was menstruating. He also began to anally rape her. One time when Allen was anally raping her, she called out for her mother. According to Amber, her mother never came to investigate, but Amber also said that she did not know whether her mother was home. Another time she cried out, Amber's two young siblings knocked on the bedroom door to find out what was going on, but Allen told them to go back into the living room and watch a movie. Amber also said that, sometimes when she cried out at night, her mother would stand by her bedroom door and ask, "What's going on?" When Allen left Amber's room, he would tell Metcalf that Amber was having a nightmare. Amber testified that she stopped crying out because she thought that her mother was "letting it happen."
It appears from Amber's testimony that, when she cried out for her mother, she called for her by name but did not say anything else. Amber testified that she did not tell her mother that Allen had been raping her until she was 22 years old.
When she was 15 years old, Amber told Metcalf that Allen was a "monster" who was doing "bad things," but she gave no more details, and Metcalf did not ask what she meant. Allen denied doing anything "bad," and Amber thought that Metcalf believed Allen.
When Amber was 16 years old, she came home from jogging with Allen and was crying. Amber told Metcalf that Allen had slapped her and tried to pull down her shorts. Allen admitted to slapping Amber and trying to pull down her shorts, but he denied that it was sexual. He said that Amber started "whining about having to use the bathroom" a few minutes after they left the house, "so he took her behind a tree and pulled at her shorts." Metcalf did not believe Allen that it was not sexual and kicked him out of the house, but she let him return later that day. She told police that even though she did not believe Allen, she had no proof. Before allowing Allen to return, Metcalf gave Amber a cell phone and a whistle "[i]n case [Allen] did something." According to Amber, Metcalf told Amber to call her, not the police, if something happened. Metcalf also put up a beaded curtain on Amber's bedroom door.
On another occasion when the family was living in Carthage, Metcalf left the house to stay at a motel for an evening. Amber said that she asked to go with her, but her mother would not let her. Amber did not know why, but defense counsel suggested that it was because Metcalf had a migraine that day. Allen raped Amber later that night.
A year or two after the charged offense, in 2011 or 2012, Metcalf walked into Amber's room and saw Allen on top of Amber touching her vagina. Allen and Metcalf argued in their bedroom, and Metcalf kicked him out of the house again. While Allen was gone, he repeatedly called Metcalf begging to return. Metcalf called Amber and asked if Allen could return. She told her that she should think about the kids because they "need their dad." Amber testified that she finally relented and agreed to let him return. Amber and Metcalf slept together in the master bedroom for two weeks while Allen slept on the couch. Amber testified that Allen never sexually assaulted her again.
In a letter Metcalf later wrote to Amber after the abuse, she said that,
When I saw what I saw ... I kicked him out and he was out for four hours. I felt bad for you that he was doing that to you. I felt angry wanting to call the cops on him but I also felt bad for [Amber's two young siblings] because that is their dad. So when he begged to talk to you, and I (sic) And begged to let him back in. I was filled with different emotions. Judged (By other people) (sic), Angry, hurt, heartbroken, sad, depressed, etc. I made the worst decision of my life and left it up to you.
I should have been stronger. I should have called the cops. I should have shown my anger toward him and just let him have it. I will regret this for the rest of my life.
In 2013, when Amber was 19 years old, she moved into her great aunt, Emma Blakeman's, house to work towards earning her General Education Development (GED) certificate. Blakeman learned of Allen's sexual abuse a couple of years after Amber moved in with her. Amber was then 22 years old. After learning about the abuse, Blakeman told Metcalf that the three of them needed to talk to her about "some things." This was the first time Amber told her mother that Allen began sexually abusing her, beginning when she was 13 years old. Blakeman and Amber subsequently went to the Panola County Sheriff's Office and reported the abuse.
COURT OF APPEALS
The court of appeals first addressed the hypothetically correct jury charge. The court of appeals concluded that, under Section 7.02(a)(3), the State had to prove that,
(1) having a legal duty to prevent the commission of sexual assault (2) and acting with intent to promote or assist its commission, (3) Metcalf (4) failed to make a reasonable effort to prevent the commission of the offense of sexual assault
(5) by penetration of Amber's anus (6) by the "defendant's sexual organ."
Although the indictment alleges that Metcalf penetrated Amber's anus with her sexual organ, the evidence shows that Allen penetrated Amber's anus with his sexual organ. As the court of appeals correctly pointed out, this raises a variance issue, but like the court of appeals, we need not further address the variance given our disposition of the case. Metcalf v. State , 562 S.W.3d 48, 54 (Tex. App.—Texarkana 2018).
Metcalf , 562 S.W.3d at 53. According to the lower court, to prove the intent to promote or assist, the evidence must show that "the parties were acting together, each doing some part of the execution of the common purpose," and the agreement to act "must be made before or contemporaneous with the criminal event." Id. at 57. The court of appeals found that the evidence insufficient to prove the "intent to promote or assist" element because it does not show that Metcalf knew about the anal penetration alleged in the indictment, so there could not have been an agreement to act. Id. at 60.
Having found the evidence insufficient, the court proceeded to consider whether Metcalf's conviction could be reformed to reflect that she was convicted of indecency with a child. It concluded that the conviction could not be reformed because the evidence is insufficient to show that Metcalf had the intent to promote or assist the commission of indecency with a child. According to the court, Metcalf "did not witness[,] and was never told of any act of indecency with Amber committed by Allen[,] prior to the occurrence of the offense for which she was on trial," and "[a]lthough a jury could have concluded that Metcalf was concerned that Allen had sexual desires toward Amber, the allegation that Allen tried to pull down Amber's pants fell short of establishing that Allen succeeded in the act of pulling down Amber's pants or engaged in sexual contact with her." The court of appeals also distinguished cases cited by the State, explaining that the defendants in those cases actively encouraged commission of the offense, had actual knowledge of the offense, or were active participants. DISCRETIONARY REVIEW
The indecency-with-a-child statute states that,
(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or
(B) causes the child to expose the child's anus or any part of the child's genitals.
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(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.
Tex. Penal Code § 21.11.
See Guevara v. State , 152 S.W.3d 45 (Tex. Crim. App. 2004) (the appellant was an active participant in the commission of the offense); Beardsley v. State , 738 S.W.2d 681 (Tex. Crim. App. 1987) (the appellant was an active participant in the commission of the offense); Sandoval v. State , No. 14-12-00879-CR, 2014 WL 3870504 (Tex. App.—Houston [14th Dist.] Aug. 7, 2014, no pet.) (mem. op., not designated for publication) (the appellant had actual knowledge of the offense); Carson v. State , 422 S.W.3d 733 (Tex. App.—Texarkana 2013, pet. ref'd) (the appellant actively encouraged commission the offense.); Perez v. State , No. 08-12-00340-CR, 2015 WL 4940375 (Tex. App.—El Paso Aug. 19, 2015, no pet.) (not designated for publication); (the appellant had actual knowledge of the offense); Simon v. State , 743 S.W.2d 318, 320 (Tex. App.—Houston [1st Dist.] 1987, pet. ref'd) (the appellant actively encouraged commission of the offense).
The State argues that the court of appeals reached the wrong result because it considered the evidence in isolation, dismissing its cumulative impact. It agrees that Amber did not tell Metcalf that Allen had been sexually assaulting her until she was 22 years old, but it argues that the evidence is nonetheless sufficient to prove the intent to promote or assist. Specifically, it cites the following evidence,
We limit our review to the court of appeals's holding regarding Section 7.02(a)(3) since the State does not challenge the court of appeals's Section 7.02(a)(2) holding.
• Amber testified that she thought that her mother was letting the abuse happen because, sometimes when Allen sexually assaulted her, she would cry out but her mother did not investigate after Allen told her that Amber was having a nightmare;
• Metcalf did not believe Allen that it was not sexual when he tried to pull down Amber's shorts while they were jogging;
• Even though Metcalf did not believe him about the jogging incident and kicked him out of the house, she let him return that same day;
• Metcalf put a beaded curtain on Amber's door, gave her an old cell phone and a whistle, and told her to call her, not the police, if Allen tried "something"; and
• Even after Metcalf walked in on Allen touching Amber's vagina and kicked him out, she allowed him to return, "indicating just how desperate she was to cater to Allen's wishes to keep him happy."
State's Brief on the Merits at 18–19.
According to the State, "Metcalf had a legal duty to prevent Allen from raping her daughter; but, acting with intent to promote or assist the offense, she failed to make a reasonable effort to prevent the commission of the offense." Id. at 19.
SUFFICIENCY OF THE EVIDENCE
a. Standard of Review
Evidence is sufficient to support a conviction if a rational jury could find each essential element of the offense beyond a reasonable doubt. When reviewing the sufficiency of the evidence, we consider all the admitted evidence in the light most favorable to the verdict. Jackson v. Virginia , 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury is the sole judge of the credibility of a witness's testimony and the weight to assign to that testimony. Id. at 319, 99 S.Ct. 2781. This means that the jury can believe all, some, or none of a witness's testimony. Esquivel v. State , 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). Juries can draw reasonable inferences from the evidence so long as each inference is supported by the evidence produced at trial. Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ; see Hooper v. State , 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them." Hooper , 214 S.W.3d at 16. The jury is not allowed to draw conclusions based on speculation even if that speculation is not wholly unreasonable because speculation is not sufficiently based on the evidence to support a finding of guilt beyond a reasonable doubt. Id. "Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented." Id. If the record supports contradictory reasonable inferences, we presume that the jury resolved the conflicts in favor of the verdict. Jackson , 443 U.S. at 326, 99 S.Ct. 2781.
b. Hypothetically Correct Jury Charge
The sufficiency of the evidence is measured by comparing the evidence produced at trial to "the essential elements of the offense as defined by the hypothetically correct jury charge." Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. The law "authorized by the indictment" consists of the statutory elements of the offense as modified by the indictment allegations. Curry v. State , 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). "Party liability is as much an element of an offense as the enumerated elements prescribed in a statute that defines a particular crime." In re State ex rel. Weeks , 391 S.W.3d 117, 124 (Tex. Crim. App. 2013).
c. Law of Parties
Section 7.02(a)(3) of the Penal Code states that,
As we noted earlier, we confine our analysis to the legal-duty theory of party liability under Section 7.02(a)(3) because that is the only part of the court of appeals's holding that the State challenges.
(a) A person is criminally responsible for an offense committed by the conduct of another if:
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(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
TEX. PENAL CODE § 7.02(a)(3). To prove the intent-to-promote-or-assist element, the State must show that it was the defendant's conscious objective or desire for the primary actor to commit the crime. In assaying the record for evidence of intent, we look to "events before, during and after the commission of the offense." Wygal v. State , 555 S.W.2d 465, 468–69 (Tex. Crim. App. 1977). Although we can look to events taking place after commission of the offense, the intent to promote or assist must have been formed contemporaneously with, or before, the crime alleged was committed. Id. Circumstantial evidence is as probative as direct evidence when determining whether a person was a party to an offense.
Section 6.03(a) states that "[a] person acts intentionally, or with intent, with respect to the nature of his conduct ... when it is his conscious objective or desire to engage in the conduct ...." Tex. Penal Code § 6.03(a).
Gross v. State , 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (citing Ransom v. State , 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (op. on reh'g)).
d. Analysis
1. The Hypothetically Correct Jury Charge
According to the court of appeals, the hypothetically correct jury charge required the State to prove that,
The jury was charged on the law of parties in the abstract under Section 7.02(a)(2) and (a)(3), but the application part of the jury charge wholly failed to apply the law of parties. That part of the charge states in its entirety that,
(1) having a legal duty to prevent the commission of sexual assault[,] (2) and acting with intent to promote or assist its commission, (3) Metcalf[,] (4) failed to make a reasonable effort to prevent the commission of the offense of sexual assault[,] (5) by penetration of Amber's anus[,] (6) by the "defendant's sexual organ."
Metcalf , 562 S.W.3d at 53 (emphasis removed).
The State argues that the court of appeals erred because it required it to prove that Metcalf knew about the sexual assault alleged in the indictment. It asserts that Metcalf did not need to know whether Allen penetrated Amber's anus or vagina because those are only manner-and-means allegations, not essential elements of the offense, and therefore are not included in the hypothetically correct jury charge.
If the phrase "penetration of the anus or sexual organ" describes different manners and means of committing a single offense, as the State argues, those allegations are not incorporated into the hypothetically correct jury charge because they are not essential elements of the offense. But if "penetration of the anus or sexual organ" defines two distinct criminal offenses, the State had to prove that Metcalf intended to promote or assist the anal penetration in the indictment because the anal-penetration allegation is an essential element of the offense.
We have previously decided an identical issue in the aggravated-sexual-assault statute. It controls our analysis here. In Gonzales v. State , 304 S.W.3d 838 (Tex. Crim. App. 2010), we had to decide whether the same phrase—"penetration of the anus or sexual organ"—in the aggravated-sexual-assault statute defined one or two offenses. We concluded that the phrase defined two separate offenses, reasoning that aggravated sexual assault is a nature-of-conduct offense, penetration of the anus and penetration of the sexual organ are distinct acts, and the words anus and sexual organ are written in the disjunctive. Id. at 848–49 ; see Huffman v. State , 267 S.W.3d 902, 906 (Tex. Crim. App. 2008) (stating that sex offenses are nature-of-conduct crimes).
This analysis applies with equal force to Section 22.011(a)(1)(A) of the sexual-assault statute. Like the aggravated-sexual-assault statute, sexual assault is a nature-of-conduct offense, penetration of the anus and sexual organ constitute discrete acts, and the words sexual organ and anus are disjunctive. See TEX. PENAL CODE § 22.011(a)(1)(A). Therefore, we conclude that "penetration of the anus or sexual organ" under Section 22.011(a)(1)(A) of the sexual-assault statute are different offenses, not merely two different ways of committing the same offense. Accordingly, those allegations are included in the hypothetically correct jury charge when assessing the sufficiency of the evidence because they are essential elements of their respective offenses.
Although the State must prove that the defendant had the intent to promote or assist the offense alleged (i.e., anal or vaginal penetration), it might be possible to prove that intent even if the defendant did not know how the victim was penetrated. Consider a defendant who acts as a lookout while one of his friends rapes someone inside a nearby room. Maybe the defendant thought that his friend would anally rape the victim, but his friend vaginally raped the victim. Depending on the facts, a rational jury might reasonably infer that the defendant had the intent to promote or assist his friend's vaginal rape even though he did not witness it because it was his conscious objective or desire for his friend to sexually assault the victim in some way.
That reasoning is inapplicable here, however, because the evidence is insufficient to show that Metcalf knew that Allen was sexually assaulting Amber at all, before, or at the time, that the offense was committed. We agree with Judge Keel that the transferred-intent doctrine might apply under different facts. We need not definitively resolve the issue, however, because doing so is unnecessary to our disposition of the case. Here, even if the transferred-intent doctrine is applicable, there is no intent to transfer.
3. The Evidence is Insufficient to Prove that Metcalf Had the Intent to Promote or Assist
The State argues that the court of appeals erred because it did not consider the cumulative impact of all the admitted evidence, instead engaging in a divide-and-conquer analysis. It is true that a reviewing court must consider the cumulative impact of all the inculpatory evidence, but it cannot do so without also discussing individual pieces of evidence. Here, the court of appeals laid out the evidence and then addressed its cumulative impact.
Amber testified that the abuse began when she was 13 years old and lived in Houston. Metcalf said in a voluntary statement that one time she woke up at 2:30 a.m. "to find Allen coming back to bed. He said he was just checking on the kids[,] but I thought it was strange." Amber said that she did not tell anyone about the abuse because Allen threatened to hurt her siblings. When she was 14 years old, the family moved to Carthage. That is also when Allen began to anally rape her. Amber called out for her mother a few times when Allen was in her room abusing her, but her mother never came to investigate. Amber testified that sometimes her mother would stand by her door and ask, "What's going on." After Allen left the room, he would tell Metcalf that Amber was having nightmares, and Metcalf never investigated further. On another occasion when Amber cried out, two of her young siblings knocked on the bedroom door, but Allen told them to go back into the living room and watch a movie. Amber testified that she cried out for her mother when Allen committed the charged sexual assault, but she did not know if Metcalf was home. When she was 15 years old, Amber told Metcalf that Allen was a "monster" who was doing "bad things," but Amber never said what she meant, and her mother did not ask. When Amber was 16 years old, Allen slapped her and tried to pull down shorts when they were outside jogging. He admitted to Metcalf that he slapped her and tried to pull down her shorts, but he claimed that it was not sexual. Metcalf did not believe him. She thought that it was sexual and kicked Allen out of the house again. Metcalf let Allen return to the house that same day and gave Amber a cell phone and a whistle and put up a beaded curtain on Amber's bedroom door. A year or two after the charged offense, Metcalf walked into Amber's room and saw Allen on top of her with his hand on her vagina. Metcalf kicked Allen out of the house, but she eventually allowed him to return. After he returned, Amber and Metcalf slept together in the master bedroom for two weeks, and Allen slept on the couch. Amber testified that Allen never sexually assaulted her again.
According to the court of appeals, testimony establishing that Metcalf failed to respond to Amber's cries after Allen told her that Amber was having nightmares did not support a reasonable inference that "Metcalf knew about the anal penetration" unless other evidence showed that Metcalf did not believe Allen that Amber was having a nightmare. Metcalf , 562 S.W.3d at 56. It continued that, "[b]ecause no other evidence was offered to support this inference, a conclusion that Metcalf knew Amber was crying out because she was being sexually abused, instead of having nightmare, was based on speculation." Id. The State argues that a jury could have reasonably inferred that Metcalf "saw through Allen's ruse that Amber was just having a nightmare." State's Brief on the Merits at 18. But we agree with the court of appeals.
We draw all reasonable inferences in favor of the verdict. Anderson v. State , 416 S.W.3d 884, 888 (Tex. Crim. App. 2013). But "juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions." Hooper , 214 S.W.3d at 15. "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented." Id. While "[a] conclusion reached by speculation may not be completely unreasonable," and it might even prove to be true, it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt. Id.
A rational jury could have believed or disbelieved Amber's testimony that she heard Allen tell Metcalf that Amber was just having nightmares, but there is no evidence from which a rational jury could have reasonably inferred that Metcalf did not believe Allen and that she knew he was actually sexually assaulting Amber. Similarly, while Amber's statements to Metcalf that Allen was a "monster" and was doing "bad things" are incredibly troubling, the State concedes that Amber's comments were too ambiguous to support a reasonable inference that Metcalf knew that Allen was sexually assaulting Amber. We agree. Amber never told Metcalf what she meant, and Metcalf never asked. Without more context, Amber's comments are insufficient to support a reasonable inference that Metcalf knew that Amber meant that Allen was sexually assaulting her. Also, a rational jury could have believed Amber's testimony that she cried out for her mother and that she was unsure whether her mother was home when she cried out, but that evidence does not support a reasonable inference that Metcalf was home, that Metcalf heard Amber, and that she did nothing because she knew that Allen was sexually assaulting her.
With respect to the jogging incident, the court of appeals found the evidence sufficient to show that Metcalf thought that Allen was sexually interested in Amber, but it concluded that Metcalf's belief does not support a reasonable inference that, since Metcalf thought that it was sexual for Allen, she must have known that Allen had been sexually assaulting Amber or that he would in the future. We agree.
The jury charge included an instruction that,
You are instructed to disregard the incident where the defendant entered [the victim]'s bedroom and Allen Metcalf was touching [the victim] for any purpose in considering the guilt or innocence of the defendant for the criminal offense for which the defendant is on trial.
The trial judge said that she included the instruction because Metcalf's failure to take reasonable steps to prevent the commission of the offense, which she had a legal duty to prevent, must have occurred before the later extraneous offense. Morrison v. State , 608 S.W.2d 233, 235 (Tex. Crim. App. [Panel Op.] 1980) (stating that "[a]cts committed after the [offense] was completed could not make [Morrison] a party to the offense. The circumstances must prove some culpable act before or during the [offense]."). We note, however, that, while the jury could not convict Metcalf based on her acts after the charged sexual assault was committed, events taking place after the commission of the offense can inform whether a defendant had the intent to promote or assist at the time the crime was committed. Wygal , 555 S.W.2d at 468–69.
According to the State, while the whistle, cell phone, and beaded curtain were ostensibly to protect Amber, the pitiful "protection" showed that Metcalf knew that Allen was sexually assaulting Amber and that she intended to promote or assist Allen in sexually assaulting Amber. The problem with the State's argument is that, if Metcalf gave Amber the whistle and cell phone and put up the beaded curtain to protect her—even though the measures were woefully inadequate—that tends to show that it was not Metcalf's intent to promote or assist Allen in sexually assaulting Amber. While a rational jury did not have to believe that Metcalf gave Amber the cell phone and whistle and put up the beaded curtain to protect her, there is no other evidence showing why Metcalf gave Amber those items and put the curtain up. In other words, even if the jury disbelieved Metcalf, it could not have reasonably inferred from that disbelief that Metcalf gave Amber the cell phone and whistle because she knew for a fact that Allen was sexually assaulting Amber and that it was her intention to promote or assist in the commission of those sexual assaults, including the charged offense.
Addressing the extraneous incident when Metcalf saw Allen sexually assaulting Amber, the court of appeals concluded that,
While the 2011 incident, when coupled with Amber's statements that she cried out for her mother and believed her "mother was letting it happen," could have contributed to the belief that Metcalf may have known or suspected some untoward behavior on Allen's part prior to that incident, Amber testified that she did not inform Metcalf that Allen was sexually abusing her before the anal penetration alleged in the State's indictment occurred.
Metcalf , 562 S.W.3d at 57.
While it is indisputable that Metcalf knew that Allen was sexually assaulting Amber when she walked into Amber's room and saw Allen with his hand on Amber's vagina a year or two after the charged offense, the evidence does not prove that Metcalf knew that Allen was sexually assaulting Amber at the time of the charged offense, and there is no other evidence showing that it was Metcalf's conscious objective or desire for Allen to sexually assault Amber, so she could not have intended to promote or assist the commission of that offense. Even after viewing the cumulative impact of all the admitted evidence in the light most favorable to the verdict, we conclude that no rational jury could have reasonably inferred that Metcalf intended to promote or assist the sexual assault of Amber.
4. Did the Court of Appeals Conflate the Requirements of Section 7.02(a)(2) and (a)(3) ?
The court of appeals said that the evidence is insufficient to show that Metcalf and Allen had an "agreement to act together to execute a common purpose" at the time, or before, the offense was committed. The State takes issue with the court of appeals's reliance on the "execute a common purpose" phrase, arguing that it only applies to the Section 7.02(a)(2), not Section 7.02(a)(3), and that it constituted an additional, unwarranted burden. We agree with the State that the cases relied on by the court of appeals to reach that conclusion are distinguishable because they deal with Section 7.02(a)(2) and that the only burden of proof that the State must meet is the essential elements of the offense set out in Section 7.02(a)(3). The decisions from this Court discussing a "common design" or "common purpose" are cases such as those in which the defendant is charged as a party when he, or a group of people including him, started a fight during which the victim was assaulted or killed. See, e.g. , Binyon v. State , 545 S.W.2d 448 (Tex. Crim. App. 1976) (evidence sufficient to show the intent to promote or assist because Binyon started the "bar room brawl" that led to the victim's death when a co-defendant stabbed and killed the victim); Metcalf , 562 S.W.3d at 57 (citing Miller v. State , 83 S.W.3d 308, 314 (Tex. App.—Austin 2002, pet. ref'd) (evidence sufficient to show the intent to promote or assist because Miller drove the Jeep from which the passenger shot and killed the victim)); Rasberry v. State , 757 S.W.2d 885 (Tex. App.—Beaumont 1988, pet. ref'd) (evidence sufficient to show the intent to promote or assist because Raspberry started the fight during which a member of his group cut the victim with a knife). Despite the court of appeals's mistake, however, it reached the right result.
REFORMATION
The next question is whether Metcalf's sexual assault conviction can be reformed to reflect that she was convicted of a lesser-included offense. A conviction must be reformed if (1) in finding a defendant guilty of the greater offense, the jury necessarily found that the defendant committed the lesser offense, and (2) the evidence is legally sufficient to support the defendant's conviction for the lesser offense. Thornton v. State , 425 S.W.3d 289, 300 (Tex. Crim. App. 2014).
The court of appeals considered whether Metcalf's conviction could be reformed to reflect that she was convicted of indecency with a child as a party, but it ultimately rejected that possibility. It reasoned that, like the greater offense, the evidence is insufficient to prove that Metcalf intended to promote or assist Allen's commission of indecency with a child because Metcalf never saw, and no one ever told her, about any act of indecency prior to the anal penetration alleged in the indictment. According to the court of appeals, although "the jury could have concluded that Metcalf was concerned that Allen had sexual desires toward Amber, the allegation that Allen tried to pull down Amber's pants fell short of establishing that Allen succeeded in the act of pulling down Amber's pants or engaged in sexual contact with her." Metcalf , 562 S.W.3d at 60. For that reason, it concluded, the evidence did not show that Metcalf intended to promote or assist in the commission of indecency with a child. We agree with the court of appeals's analysis.
Section 21.11 setting out the offense of indecency with a child states that,
(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or
(B) causes the child to expose the child's anus or any part of the child's genitals.
* * *
(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.
Tex. Penal Code § 21.11.
CONCLUSION
We hold that the evidence is insufficient to sustain Metcalf's conviction for sexual assault of a child by anal penetration and also that her conviction cannot be reformed to reflect that she was convicted of a lesser-included offense. Therefore, we affirm the court of appeals's judgment rendering an acquittal.
Keel, J., filed a concurring opinion.
Slaughter, J., filed a dissenting opinion in which Yeary, J., joined.
Keller, P.J., concurred.
CONCURRING OPINION
Keel, J., filed a concurring opinion.
I concur in the majority's judgment; the evidence was legally insufficient to convict Appellant as a party to her husband's sexual assault of her daughter. Viewed in the light most favorable to the conviction, the evidence would not have authorized a rational jury to find that Appellant acted with the intent to promote or assist the commission of an offense against her daughter. See TEX. PENAL CODE § 7.02(a). But I disagree with the majority's suggestion that the State had to prove that Appellant intended to promote or assist the specific offense committed by her husband. The State did not bear that burden because of the law of transferred intent.
A person is criminally responsible for causing a result if the only difference between what happened and what she desired, contemplated, or risked is that a different offense was committed. TEX. PENAL CODE § 6.04(b)(1). Thus, if a defendant intends to promote or assist the commission of one crime, but her co-defendant commits a different crime, that difference does not shield her from party liability.
So, in this case if the evidence had shown that Appellant acted with the intent to promote or assist her husband's commission of one type of sexual assault, but he actually committed a different type of sexual assault, the difference between what she intended to promote or assist and what he actually did would not have shielded her from liability; she still would have been guilty of sexual assault, provided that the other elements of party liability were met. See TEX. PENAL CODE §§ 6.04(b)(1), 7.02(a).
To the extent that the majority opinion suggests that Appellant had to act with the intent to promote or assist a particular sexual assault, I disagree. Consequently, I concur only in the majority's judgment.
DISSENTING OPINION
Slaughter, J., filed a dissenting opinion in which Yeary, J., joined.
Today the Court holds that a parent's willful ignorance of the sexual assault of her child cannot satisfy the element of "acting with intent to promote or assist" for party liability under Texas Penal Code § 7.02(a)(3). I disagree and respectfully dissent.
Appellant was convicted under a theory of party liability of the sexual assault of her daughter, Amber, by Appellant's husband, Allen. See TEX. PENAL CODE § 7.02(a). Penal Code Section 7.02(a)(3) states that "[a] person is criminally responsible for an offense committed by the conduct of another if ... having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, [s]he fails to make a reasonable effort to prevent commission of the offense." Id. § 7.02(a)(3). No one disputes that Appellant had a legal duty to protect Amber from being sexually assaulted by Allen. The sufficiency question in this case boils down to whether the jury could have rationally concluded that Appellant, while acting "with intent to promote or assist" the commission of "the offense," failed to make a reasonable effort to prevent Allen from sexually assaulting Amber. Id.
Amber is the pseudonym assigned by the court of appeals to refer to the complainant in this case.
The jury also received the law of parties under Section 7.02(a)(2). That provision states that "[a] person is criminally responsible for an offense committed by the conduct of another if: acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.]" Tex. Penal Code § 7.02(a)(2). The State's arguments and this Court's analysis focus on the sufficiency of the evidence under the alternative theory of liability under Section 7.02(a)(3). I agree that the evidence is insufficient to support Appellant's conviction under Subsection (a)(2), and I therefore limit my analysis accordingly.
See Tex. Fam. Code § 151.001(a)(2) (providing that a parent has a legal duty to protect his or her child). Appellant also had a legal duty to report the sexual abuse. Id. § 261.101(a) ("A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person" is required to report it.).
The Court's opinion questions, without deciding, whether the State had to prove that Appellant knew "the offense" was anal penetration as alleged in the indictment or whether it was instead sufficient to prove that she knew some type of sexual assault was occurring without requiring knowledge of the manner of penetration. See Maj. Op. at 858 & n.16. Ultimately, the Court holds that regardless of which type of knowledge must be shown, the evidence here was nevertheless legally insufficient to support the jury's finding that Appellant acted "with intent to promote or assist" the sexual assault because Appellant was unaware that Allen was sexually assaulting Amber at all. I address both of these issues and conclude that: (1) the State did not have to prove that Appellant knew the sexual assault was by anal penetration; and (2) the evidence was sufficient to prove that Appellant acted "with intent to promote or assist" the sexual assault because Appellant knew there was sexual activity between Allen and her daughter but she acted with intent to remain intentionally ignorant of the details while knowing the sexual activity would continue.
I. The State only needed to prove that Appellant knew Allen was perpetrating some type of sexual offense against Amber.
Although the Court does not conclusively decide this issue, its opinion nevertheless raises the possibility that because the indictment alleges the sexual assault was caused by anal penetration, the State may have to prove that Appellant knew the sexual assault was by anal penetration, as opposed to penetration generally, to establish party liability. The Court should not adopt such a restrictive construction of Section 7.02(a)(3) that would limit the statute's effectiveness. See TEX. PENAL CODE § 1.05(a) ("The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code."). As this Court has previously observed, " ‘Section 7.02(a)(3) makes one a party who aids the commission of the offense by inaction. Thus, a night watchman or policeman can be a party to an offense by purposely neglecting his duty, if he does so with intent to assist the perpetuating party.’ " Medrano v. State , 612 S.W.2d 576, 578 (Tex. Crim. App. 1981) (quoting Practice Commentary). The purpose of this statute is to criminalize conduct by those who have "a legal duty to prevent the commission of an offense, [ ] have neglected that legal duty, and [ ] have done so with the intent to promote, or to assist in promoting, the commission of an offense." Id. Given that the focus of this statute is on the defendant's purposeful failure to act in spite of his legal duty to do so, and on his intent to promote or assist some offense in which he is not directly involved, it would make little sense under these circumstances to require proof that the defendant anticipated every detail surrounding the particular manner and means by which "the offense" would be committed. Accordingly, the proper understanding of the statute's reference to "the offense" is any offense committed by the primary actor that was foreseeable by the defendant and for which the defendant acted with the requisite intent to promote or assist through his or her inaction.
See also Rasberry v. State , 757 S.W.2d 885, 887 (Tex. App.—Beaumont 1988, pet. ref'd) ("Section 7.02(a)(3) is concerned with situations in which a person may be criminally responsible for the conduct of another by failing to act.").
Section 7.02(a)(3) refers to the defendant's intent to promote or assist the commission of "the offense" in reference to "an offense committed by the conduct of another." The defendant need not know the specific offense that the primary actor perpetrates or the manner and means of perpetrating the offense so long as the defendant knows that the primary actor plans to commit "an offense;" the ultimate offense committed was foreseeable by the co-defendant; the co-defendant has a legal duty to prevent the offense actually committed; and the co-defendant, acting with intent to promote or assist the primary actor in committing the offense, fails to make a reasonable effort to prevent the commission of the offense.
For example, if the mother of a thirteen-year-old girl is told by her husband to leave the room so he can teach her daughter sex education by example and she knows he intends to commit at least indecency with a child if not more, she can be charged under Section 7.02(a)(3) for any foreseeable sexual offense he commits against her daughter, regardless of whether the mother knows the specific details or not. Under those circumstances, a jury could reasonably infer that the mother had the requisite intent to "promote or assist" any sexual offense through her inaction, even though she did not know the particular sexual offense that her husband would commit. Similarly, in Appellant's case, the evidence was sufficient to establish at the very least that Appellant knew her husband was committing a sexual offense against Amber. The State was not required to prove that Appellant intended to promote or assist the particular manner of penetration alleged in the indictment.
I recognize that we have held in other contexts that penetration of the anus and sexual organ under Penal Code Section 22.011(a)(1) technically constitute two different offenses. See Jourdan v. State , 428 S.W.3d 86, 96 (Tex. Crim. App. 2014) (discussing unanimity requirements); Gonzales v. State , 304 S.W.3d 838, 849 (Tex. Crim. App. 2010) (discussing double jeopardy). But it does not inexorably follow that we must interpret the phrase "the offense" as used in Section 7.02(a)(3) as referring to the particular type of penetration that actually occurred. By way of analogy, I note that at least one court of appeals has upheld a conviction for assault under Section 7.02(a)(3) where the assault alleged in the indictment included a manner and means that was unknown to the defendant at the time of the offense. Rasberry , 757 S.W.2d at 888 (indictment alleged assault by cutting with knife; evidence was sufficient to show that defendant "intended to promote or assist in an assault causing bodily injury," and this was true "regardless of there being no proof that he knew that [principal actor] had a knife.").
II. The evidence was sufficient to find that by Appellant's willful ignorance, she acted "with intent to promote or assist" Allen in sexually assaulting Amber.
The Court holds that the evidence was insufficient for a rational jury to find that Appellant "acted with intent to promote or assist" Allen in his sexual assault because there was no proof that Appellant knew about the assault. I disagree. The jury had sufficient evidence to make reasonable inferences that Appellant knew Allen was committing sexual offenses against her daughter but chose to remain willfully ignorant and willfully in denial about the details of the abuse to facilitate his commission of the offense.
The Legislature defines "conduct" as "an act or omission and its accompanying mental state." TEX. PENAL CODE § 1.07(a)(10) (emphasis added). "A person acts intentionally, or with intent, with respect to the nature of [her] conduct or to a result of [her] conduct when it is [her] conscious objective or desire to engage in the conduct or cause the result." Id. § 6.03(a). Thus, "acting with intent to promote or assist" can mean that a person knows a defendant is committing some kind of offense, but the person engages in willful ignorance of the details of the offense when such conduct reflects an intent to promote or assist the commission of the offense.
When we review the record for legal sufficiency, our duty is to view the facts in the light most favorable to the jury's verdict. Jackson v. Virginia , 443 U.S. 307, 319, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We must presume that the jury resolved conflicting inferences in favor of the prosecution, and we must defer to that resolution. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the fact finder, is the sole judge of the weight of the evidence and the credibility of the witnesses. Heiselbetz v. State , 906 S.W.2d 500, 504 (Tex. Crim. App. 1995) ("The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it.") It may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018). A jury may not speculate about the meaning of facts or evidence, but it is permitted to draw any reasonable inference from that evidence so long as each inference is supported by the evidence adduced at trial. Zuniga v. State , 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). "Furthermore, the trier of fact may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence." Acosta v. State , 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). Of particular relevance to this case, in looking at the issue of intent for party responsibility, "[t]he necessary specific intent can be proven through circumstantial evidence, and we may rely on events that took place before, during, or after the commission of the offense." Cary v. State , 507 S.W.3d 750, 758 (Tex. Crim. App. 2016).
With the scope of our review in mind, the record shows:
Amber is Appellant's child from her first marriage. When Amber was around eight years old, her mother started dating Allen Metcalf. Soon thereafter, Appellant, Amber, and Amber's younger brother moved in with Allen. Within a year or two, Appellant and Allen got married, and they later had two children together, first Alyssa and then William.
The family moved to Houston, where they rented a three-bedroom apartment. Amber attended school in Houston for a year before her mother pulled her out of school when she was around twelve years old. Amber testified that her mother homeschooled her for "maybe two months," and then the homeschooling stopped. At that time, Appellant was working as a nanny, and Amber took on the responsibilities of keeping the house clean (by washing dishes, doing laundry, etc.).
Amber testified that her mother withdrew her from school to homeschool her because "they were putting [her] into the Special Ed class" due to a diagnosis of dyslexia. Testimony from Amber's aunt, Emma Blakeman, alternatively suggested that Appellant had pulled Amber out of school because Amber "had been molested on the bus at school." The jury could have construed these facts as suggesting that Amber needed an even higher level of protection from her mother.
It was around this time period, after Amber turned thirteen, that Allen began molesting her. The molestation began with him coming into her room and touching her breasts under her clothing. This progressed to Allen touching Amber's vagina with his fingers and penis. Amber did not tell anyone about the abuse at that time because Allen "said he was going to hurt [her] brother and sister" if she told anyone. But Appellant admitted that even at this time, she had some awareness that something "strange" was going on after she observed Allen returning to bed around 2:30 a.m., explaining that he was "just checking on the kids."
Although Appellant did not testify, this statement came into evidence through her written statement to police investigators that was admitted into evidence at trial.
When Amber was about fourteen years old, the family returned to the four-bedroom house where they had previously lived in Carthage, Texas. In describing the sleep arrangements at this house, Amber stated that she had the bedroom "close to [the] door" of Allen and Appellant's bedroom, while her siblings slept in the other bedrooms down the hall. Amber did not return to school after moving to Carthage; instead, she continued to cook and clean for the family.
Amber testified that, while in Carthage, Allen came into her bedroom "every night," except when she was menstruating, to sexually abuse her. Amber testified that Allen would touch her vagina with his hands and penis and at other times would anally rape her. When Amber asked him to stop and threatened to tell her mother, Allen again warned that Amber "better keep quiet or [her] siblings will get hurt."
Amber testified that the abuse also sometimes occurred during the daytime.
Amber testified that it hurt when Allen anally raped her, and she would cry out. In the beginning, she would cry out for her mother, but her mother did not respond. Amber described an incident in which Allen was anally raping her in the master bedroom and she called out for her mother. Amber testified she did not know where her mother was at that time, but her mother never came to investigate. At one point, the prosecutor asked whether anyone ever came to check on Amber. Amber replied that once, her brother and sister heard her crying out and knocked on the door, but Allen told them to go away and watch a movie. Amber also indicated more generally that when she would cry out for her mother, sometimes Appellant would "stand by the door, waiting by the door to her room," and ask, "What's going on?" Allen gave the excuse that Amber was having a nightmare:
Q: Did you ever cry out for your mom when Allen came into your room?
A: Yes, I did.
Q: Did she ever come?
A: She didn't come, but she'd stand by the door, waiting by her door to her room.
Q: What did she say?
A: "What's going on?" He said I was having a nightmare, and he came out of my room and back to his room.
Amber's testimony suggested that this type of incident may have happened on more than one occasion. Ultimately, Amber stopped crying out for Appellant because, as she testified, "I knew my mother was letting it happen."
When Amber was fifteen, she spoke with Appellant about "what was going on" with Allen. The following exchange occurred on direct examination:
Q: Did you ever tell your mom what was going on?
A: Yes, I did, when I was 15.
Q: What did you tell her?
A: That Allen was doing bad things and he was a monster, and she didn't do anything at that time. She believed him.
Q: So she asked him about it?
A: Yes, ma'am.
Q: And he denied it?
A: Yes, ma'am.
Q: And she believed him.
A: Yes, ma'am.
In further testimony, Amber acknowledged she never explicitly told her mother that Allen was raping her, but she also indicated that Appellant never asked her what she meant by her comments about Allen being a "monster" who did "bad things." Amber's testimony also indicated that after this conversation with her mother, Appellant asked Allen about what Amber had said, and Allen denied any wrongdoing:
Q: Did your mother know what was happening to you?
A: Yes.
Q: You had told her.
A: Yes.
...
Q: She believed – did she believe Allen over you?
A: Yes.
Q: Did she tell you that she believed Allen over you?
A: Yes, ma'am.
One day when she was sixteen, Amber came home crying and told her mother that while she and Allen were out jogging, he slapped her and tried to pull down her pants. Allen admitted that he had done that, saying he did so because Amber was "whining" about having to go to the bathroom, but he assured Appellant that it was not sexual. Appellant admitted that she did not believe Allen when he said it was not sexual. After that, Appellant gave Amber a whistle and a cell phone to use in case Allen "did something." But Amber testified that Appellant instructed her to call Appellant, rather than 911, if Allen tried to touch her again.
This admission from Appellant also came into evidence through her written statement to police investigators. In her statement, regarding the jogging incident, Appellant stated that she "did not believe" Allen when he said the incident was not sexual, but she "had no proof." Appellant further stated that in response to the incident, she gave Amber the cell phone and the whistle, but she asserted that she told Amber to call 911, rather than her, if something happened. As noted above, Amber disputed this version of events and said that Appellant instructed her not to call 911 but to call Appellant instead. Because we must defer to the jury's resolution of this conflicting testimony, I cite Amber's testimony on this matter above.
At some point after the jogging incident, and believing that Allen had sexual urges toward Amber as evidenced by the whistle and phone she gave Amber, Appellant left Amber at home with Allen while she went to stay in a motel overnight. Amber asked to go with her mother, but Appellant refused. That night, Allen raped Amber. Amber testified that at the time of this incident, her mother knew what was happening:
The reason for Appellant's stay in a motel is unclear from the record. Amber testified that it was because her mother was "angry" and "wanted to be by herself." Defense counsel suggested on cross-examination of Amber that Appellant went to the motel because she had a migraine.
Q: At that time, you had already told her about the molestation, correct?
A: Yes, ma'am.
Q: She left you alone anyway?
A: Yes, ma'am.
Allen continued to sexually assault Amber until Appellant witnessed an incident and could no longer maintain that she did not know about the abuse. One day in 2011, Appellant heard Amber and Allen talking in Amber's room. When she opened the door, she saw Allen with his hand on Amber's vagina. Appellant and Allen argued, and Appellant kicked Allen out of the house. Soon thereafter, Allen called Appellant begging her to allow him back home. Appellant, in turn, pressured Amber by asking her to think about her younger siblings and the fact that "they need their dad." Amber eventually acquiesced and Appellant allowed Allen to return within a mere four hours of the witnessed sexual assault.
For two weeks after Allen's return, Amber slept with her mother in the master bedroom. After that, Allen returned to the master bedroom and Amber returned to her bedroom. The only additional precaution Appellant took to protect Amber from Allen was to install a beaded curtain in front of Amber's bedroom door so that she could hear if Allen went into Amber's room. Amber testified that no further assaults occurred after that point. Amber moved out of the house when she turned eighteen. Amber stated that when she moved out, her mother told her not to tell anybody about what Allen had done to her.
It is unclear whether there was still a door to Amber's room in addition to the beaded curtain or whether the beaded curtain replaced the door. It is also unclear exactly when the beaded curtain was installed.
Amber testified that at one point, Allen approached her and said he could "do it again" if she wanted him to. Amber told him no.
Applying "common knowledge, observation, and experience gained in ordinary affairs," a rational jury could have drawn several reasonable inferences regarding Appellant's intent to promote or assist in the offense from the "circumstantial evidence.... [of the] events that took place before, during, or after the commission of the offense."
See Acosta , 429 S.W.3d at 625 .
Cary , 507 S.W.3d at 758.
To start, a jury could reasonably infer that no mother with a bedroom right next to her daughter's bedroom could remain ignorant to the fact that her husband was leaving nearly every night and having sex with her daughter for two or more years, especially when it was usually "painful" and caused Amber to cry out. A jury could reasonably infer that Appellant would have heard something on many of those nights but intentionally chose not to act. A jury could also reason that it was implausible that on at least one occasion and possibly more, Appellant heard Amber cry out for her in the middle of the night, found her husband gone from the marital bed, stood outside the locked door of Amber's bedroom, merely asked, "What's going on?", and then accepted the excuse that her daughter was just having a nightmare and needed to be comforted by her stepfather when she had cried out for her mother. Rather, a rational jury could glean from these facts that Appellant was aware abuse was occurring but sought to insulate herself from the situation by avoiding learning specific details or seeing the abuse with her own eyes.
When Amber came to her mother and told her that Allen is a "monster" who "did bad things," what mother does not ask her daughter any follow-up questions? A jury could infer that the answer to that question is a mother who already knows what her daughter means but does not want to hear the words spoken out loud.
This is a mother who willfully ignored every obvious sign. This is a mother who admitted that she knew her husband had sexual urges towards her daughter when he slapped her and tried to pull down her pants. Yet, this mother did not ask any further questions, and she did not report anything. Instead, this mother's reaction was to give Amber a whistle and a cell phone to be used only to call her, not 911. Then, even after this incident that Appellant knew was sexual, this mother left the house and spent a night in a motel, leaving her daughter to be raped by Allen yet again.
This is also a mother who, when she finally saw the sexual assault with her own eyes and no longer had plausible deniability, did not call the police, never reported it, never asked her daughter any questions about what else may have occurred, and instead allowed Allen back in the house a mere four hours after she had asked him to leave. This mother even allowed Allen to continue living in the house with her daughter (and his young daughter) over the next two years, thereby exposing Amber (and her sister) to the possibility of more abuse. Aside from allowing Amber to sleep in her bedroom for a couple of weeks and installing the beaded curtain, Appellant took no steps to prevent further abuse of Amber by Allen. A rational jury could infer, based on these facts, that Appellant intended to keep her husband at the expense of her own daughter's safety. This was clear not only from Appellant's willful ignorance of the details of the sexual activity Appellant knew was occurring, but also from Appellant's unwillingness to take any meaningful action to protect her daughter from further sexual abuse once she saw it with her own eyes. The jury was free to consider these facts in reaching its conclusion that Appellant intentionally turned a blind eye to the details of the abuse that had already occurred, while knowing that it was in fact occurring, and failed to take any meaningful precautions to protect Amber thereby assisting Allen's commission of sexual assault against her daughter.
These inferences are not based on speculation; rather, they are based upon a common-sense view of the facts. Amber was a teenage girl, and Allen was her stepfather. There was practically no possible innocent excuse for him to be visiting her nightly in her bedroom behind a locked door while she cried out for help. The likelihood of Appellant not seeing or hearing anything that would have alerted her to the reality that Allen was abusing Amber, during a period that spanned several years and when the abuse was occurring in a bedroom right next to hers, was exceedingly small. If the totality of these facts, coupled with Appellant's failure to take any reasonable action in response, were not enough for the jury to conclude that she was "acting with intent to promote or assist" in Allen's sexual assault of Amber, then it seems that what the Court is demanding under these circumstances is direct proof that Appellant knew about the abuse—either that she saw it with her own eyes, or that Amber specifically told her at some point that Allen was raping her. But neither our sufficiency standard nor Section 7.02(a)(3) requires this kind of direct evidence of intent.
The Court's opinion rejecting the jury's verdict deviates from sufficiency principles by failing to defer to the jury's resolution of conflicting facts, and by disallowing the jury from relying on reasonable inferences to draw conclusions about Appellant's intent surrounding her husband's sexual abuse of Amber. Applying the appropriate level of deference to the jury's verdict, there is sufficient evidence to support Appellant's conviction as a party to this offense under Penal Code Section 7.02(a)(3). Therefore, I respectfully dissent.
Application of Law to Facts
Now, if you find from the evidence beyond a reasonable doubt that on or about the 10th December, 2010, in Panola County, Texas, the defendant, LYDIA METCALF, did then and there intentionally or knowingly cause the penetration of the anus of A.V.H. by defendant's sexual organ, without the consent of A.V.H., then you will find LYDIA METCALF guilty of sexual assault as charged in the indictment.
If you unanimously agree that the state has proved, beyond a reasonable doubt, all the elements of its case, you must find the defendant "guilty."
If you unanimously agree that the state has failed to prove, beyond a reasonable doubt all elements of its case, you must find the defendant "not guilty."
It is error when the application part of the jury charge wholly fails to apply the law of parties, and the usual Almanza factors apply in determining harm. Vasquez v. State , 389 S.W.3d 361, 368 (Tex. Crim. App. 2012).