Case Information
*1 In The
Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-17-00211-CR
LYDIA METCALF, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 123rd District Court Panola County, Texas
Trial Court No. 2015-C-0290 Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Burgess
O P I N I O N A Panola County jury determined that Lydia Metcalf was a party to the offense of sexual assault, convicted her of the offense, and assessed a sentence of three years’ imprisonment. On appeal, Metcalf argues that (1) the evidence is legally insufficient to support her conviction, (2) the trial court erred in admitting evidence of a subsequent extraneous offense, (3) the trial court erred in denying her motion for mistrial, and (4) the court’s jury charge contained error.
We find Metcalf’s first issue dispositive of this appeal. Because we conclude that the evidence was legally insufficient to support her conviction, we reverse the trial court’s judgment and render a judgment of acquittal.
I. Factual and Procedural Background
The evidence at trial established that Metcalf’s child, Amber, was sexually abused by her stepfather, Allen Metcalf. Allen was convicted of nine counts of sexual assault and three counts of indecency with a child. In this case, the State argued that, on or about December 10, 2010, Metcalf was a party to Allen’s penetration of Amber’s anus by his sexual organ. Amber, who was twenty-three at the time of trial, testified about the family’s history and the sexual abuse she suffered while living with Metcalf and Allen.
Amber stated that Metcalf divorced her biological father when she was nine years old. Thereafter, Metcalf, Amber, and Amber’s brother moved in with Allen. When Amber was twelve, the family moved to Houston, and Metcalf and Allen had two other children together. Amber testified that she was taken out of public school and given the duty of caring for house and home *3 while Metcalf worked. According to Amber, Allen began his abuse of her by entering her room and touching her breasts and vagina when she was thirteen years old. Amber also said that Allen soon began vaginally penetrating her with his hands and penis. [2] She testified that she did not tell anyone of Allen’s sexual abuse because Allen had threatened to kill her siblings.
Amber testified that the family moved to Carthage, Texas, when she was fourteen and that she continued to do household chores and cook for the family while her mother was working at a daycare facility. She said that Allen soon began coming into her room almost every night for the purpose of sexually assaulting her. Amber testified that, on one occasion during the daytime, Allen took Amber to her mother’s room and penetrated her anus with his sexual organ. Amber said that, although she did not know where Metcalf was, she called out to her, but did not receive any response. The incident caused Amber to threaten Allen with revealing the abuse to her mother, but, as a result of Allen’s threat to harm her siblings, Amber kept quiet.
Amber testified that, when she was fifteen, she told Metcalf that “Allen was doing bad things and he was a monster.” [3] Amber added that, because she was scared, she did not go into any detail and made no allegation of sexual abuse at that time. Metcalf did not believe that Allen did “bad things” or that he was “a monster,” and “didn’t do anything at that time.” [4] When asked, “Did you ever cry out for your mom when Allen came into your room,” Amber responded that she had, that Metcalf would stand near the door to the master bedroom, that Metcalf would ask, “What’s *4 going on,” and that Metcalf would walk away after Allen exited her room and reported that she was simply having a nightmare. [5] Amber said she did not cry out again “[b]ecause [she] knew [her] mother was letting it happen.”
When Amber was sixteen, she told Metcalf that Allen had “slapped [her] and tried to pull down [her] pants.” In a voluntary statement, Metcalf wrote:
I called Allen to come home and he said that it wasn’t anything sexual, that [Amber] was whining about having to use the bathroom so he took her behind a tree and pulled at her shorts. I did not believe him but I had no proof. I made Allen leave our home but let him come back later. . . I gave [Amber] a whistle and a cell phone and told her to call 911 if Allen tried to touch her again. [6]
Amber testified that she received the whistle and cell phone, but was told to call Metcalf if something happened, not the police. Amber did not use the cell phone or whistle.
Amber stated that she did not inform Metcalf of the sexual abuse even though Allen had raped her for a number of years. During cross-examination, Amber testified that she did not know whether Metcalf was present when she was raped because she “was in a locked room,” and “[Metcalf] was sleeping in her room when Allen came into [Amber’s] room.” She said that Metcalf never directed Allen to perform any sexual acts on her.
*5 Over objection, the State introduced an extraneous offense which occurred after Allen stopped anally raping Amber. In 2011, Metcalf walked into Amber’s room and found Allen on top of her daughter. Amber testified that Allen was touching her vagina with his hands when Metcalf saw them, instructed Allen to get into the master bedroom, and argued with him behind closed doors. Metcalf kicked Allen out of the home. After only four hours of his absence, however, she then pleaded with her daughter to allow Allen to move back home by asking Amber to “think about the kids.” Amber testified that she gave in to her mother’s plea, allowed Allen to move back in, and was instructed by Metcalf not to tell anyone. When asked, “When did the acts by Allen against you, the anal raping, when did that stop,” Amber responded that it was when Metcalf found out in 2011.
With respect to the 2011 incident, Metcalf wrote:
I saw Allen on the bed touching Amber’s stomach. I told Allen to leave or I would call the police. . . . When Allen came back he got on his hand and knees apologizing and promising to never touch [Amber] again. . . . When [Amber] was 20 Allen started taking me to our priest and admitting that he had touched [Amber].
Prior to the 2011 incident, however, Amber clarified that she never told Metcalf that Allen had attempted to have sex with her and that she first told Metcalf that Allen had raped her when she was twenty-two.
After hearing this evidence, the jury convicted Metcalf of being a party to anal penetration of Amber by Allen’s sexual organ.
II. Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.
Brooks v. State
,
Legal sufficiency of the evidence is measured by the elements of the offense as defined by
a hypothetically correct jury charge.
Malik v. State
,
A person commits the offense of sexual assault if “the person intentionally or knowingly . . . causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent.” T EX . C ODE C RIM . P ROC . A NN . art. 22.011. Here, the State’s indictment *7 alleged that Metcalf “intentionally or knowingly cause[d] the penetration of the anus of [Amber] by defendant’s sexual organ, without the consent of [Amber].”
Although the indictment did not contain theories of party liability, the State clarified at trial
that it sought to hold Metcalf responsible for Allen’s conduct as a party, and “it is well-settled that
the law of the parties need not be pled in the indictment.”
Marable v. State
,
(a) A person is criminally responsible for an offense committed by the conduct of another if:
. . . . (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 the 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.
T EX . P ENAL C ODE A NN . § 7.02(a)(2)–(3) (West 2011). The trial court charged the jury on both
theories, alternatively. Because ‘“[p]arty liability is as much an element of an offense as the
enumerated elements prescribed in a statute that defines a particular crime,’. . . it was required to
be proven as alleged.”
Williams v. State
,
In our analysis, we recognize that “[t]he trier of fact is the sole judge of the weight and
credibility of the evidence.”
Bleil v. State
,
III. Analysis
Metcalf was the defendant in this case. The State’s indictment alleged that the “defendant’s sexual organ,” i.e. Metcalf’s sexual organ, penetrated Amber, while the proof at trial established,
conclusively, that Metcalf’s sexual organ did not penetrate Amber’s sexual organ. Therefore, there
is a variance between the indictment and the proof at trial. “A ‘variance’ occurs whenever there
is a discrepancy between the allegations in the indictment and the proof offered at trial.”
Byrd v.
State
,
Only material variances lead to a failure of proof, and the identity of the person committing the sexual assault is an essential element of the offense. See T EX . P ENAL C ODE A NN . § 22.011. In any event, we need not decide whether the variance was material because we conclude that the evidence is legally insufficient even when rewriting the indictment by substituting “Allen Metcalf’s sexual organ” for the term “defendant’s sexual organ.” [9] This is because Metcalf argues that there was no evidence that she had the intent to promote or assist in the commission of the sexual assault, and we agree.
*10
Evidence is legally sufficient to convict the defendant under Section 7.02(a)(2) where it
shows that she acted with intent to promote or assist the commission of the offense and
“encourages the commission of the offense either by words or other agreement.”
Cordova v. State
,
698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Evidence is legally sufficient to convict the
defendant under Section 7.02(a)(3) where it shows that she had “a legal duty to prevent the
commission of the offense” and failed to make a reasonable effort to do so with the intent to
promote or assist its commission. T EX . P ENAL C ODE A NN . § 7.02(a)(3). “The difference in the
Section 7.02(a)(3) standard and the traditional party definition in Section 7.02(a)(2) is that ‘fails
to make a reasonable effort to prevent commission’ substitutes for the ‘solicits, encourages, directs,
aids, or attempts to aid’ language.”
Carson v. State
,
Id. (citing 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.”)).
Our recitation of Section 7.02(a)(2) and (a)(3) is made with the purpose of explaining that,
under either theory of party liability, the State was required to prove that Metcalf acted with intent
*11
to promote or assist Allen in committing sexual assault by penetrating Amber’s anus with his
sexual organ. In order to establish this intent, “the evidence must show that, at the time of the
offense, the parties were acting together, each doing some part of the execution of the common
purpose.”
Cordova
,
In order to convict Metcalf of the offense alleged, the jury would have to necessarily determine, at a minimum, that Metcalf was aware of the act alleged in the indictment—anal penetration—before determining that she acted with intent to promote or assist its commission. The State generally argues that Metcalf was indicted for sexual assault as a party, that she “had a duty to prevent the commission of this and countless other assaults against her daughter,” and that she “was aware of her husband’s sexually abusive conduct toward her daughter.” Yet, the State’s brief falls short of making an attempt to establish, aside from conclusory argument, that Metcalf had the intent to promote or assist in Allen’s act of penetrating Amber’s anus or that she was aware that such an act was occurring.
*12
Arguments that Metcalf could or should have been aware of Allen’s indecency with Amber
or other acts not alleged in the indictment cannot support a finding that she acted to promote or
assist in the commission of anal penetration. While “[a] culpable mental state generally can be
established only by inferences from the acts, words, and conduct of the accused,” “speculation is
not evidence.”
Carson
,
In Hooper , the high court recognized the distinction between an inference and mere speculation:
[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. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.
Id
. (quoting
Hooper
,
Here, testimony establishing that Metcalf failed to respond to Amber’s cries after Allen informed her that she was just having nightmares could not support a rational inference that *13 Metcalf knew about the anal penetration unless the jury determined, from other evidence, that Metcalf did not believe Allen’s representations that Amber was having nightmares. Because 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 nightmares, was based on speculation. Amber’s statements to Metcalf that Allen was doing bad things, was a monster, and had once tried to pull down her pants were, likewise, insufficient to support a rational inference that Metcalf was aware that Allen was committing the act of anal penetration alleged. Amber further stated that she was not sure whether her mother was present in the home when Allen penetrated her anus with his penis and that Allen did not commit any act of sexual assault after the 2011 incident.
*14
The extraneous 2011 incident, which occurred after the act alleged in the indictment,
established that Metcalf then became aware that Allen contacted Amber’s vagina with his hand,
failed to inform law enforcement at that point, and allowed Allen to move back into the home.
However, the agreement to act together to execute a common purpose “must be made before or
contemporaneous with the criminal event” alleged.
Miller
,
Q. You gave no further detail, correct?
A. No.
Q. When was the second time you told her?
A. Sixteen.
Q. And what did you tell her then?
A. That Allen was -- slapped me and tried to pull down my pants.
Q. You never told him [sic] that he tried to penetrate -- using not adult words or fancy words, you never told her that he attempted to have sex with you at all, did you?
A. I wasn’t -- no.
. . . . Q. Okay. Now, you’ve testified under oath that you told her that he was a monster and he did bad things, correct?
A. Yes.
Q. But you never told your mother that he had sex with you, correct?
A. No, because she didn’t ask.
Q. Well, regardless of the reason, whether she asked or didn’t ask, you never told her until you were 22 years old that he had had sex with you, correct?
A. Yes. Amber replied affirmatively to the State’s question of whether she had told Metcalf about the “molestation.” However, the record established that the only thing Amber said about the “molestation” was that Allen was a monster and did bad things. The record does not support an inference that Amber told Metcalf that she was sexually assaulted. Moreover, the hypothetically correct jury charge, as determined by the State’s indictment, required the State to prove that Metcalf acted with the intent to promote or assist the act of sexual assault—specifically by anal penetration. Compare T EX . P ENAL C ODE A NN . § 21.11 (West Supp. 2018) with T EX . P ENAL C ODE A NN . § 22.011 (West Supp. 2018). An inference that Metcalf was aware of any act of anal penetration from these record references would require conjecture. Thus, an inference that she acted with the intent to promote or assist anal penetration would be unreasonable based on the cumulative force of the evidence, even when viewed in a light most favorable to the verdict. *15 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.
The basic facts in this case, even when viewed in the light most favorable to the verdict, do not establish that Metcalf had the prior or contemporaneous intent to promote or assist Allen in the commission of the sexual assault alleged in the indictment—anal penetration—beyond a reasonable doubt. Rather, we conclude that they reveal nothing more than a basis for speculation that Metcalf was guilty, as a party, of the offense alleged. Accordingly, we cannot conclude that the evidence is legally sufficient for a rational jury to conclude that Metcalf was a party to the offense under either Section 7.02, subsection (a)(2) or (a)(3), beyond a reasonable doubt, which is this State’s highest burden of proof. Therefore, we reverse Metcalf’s conviction.
IV. Metcalf’s Conviction Cannot Be Reformed
Next, having determined that the evidence was legally insufficient to support Metcalf’s conviction as a party to the offense of sexual assault as alleged, we must now consider whether the conviction should be reformed to reflect a conviction of a lesser-included offense. See Canida v. State , 434 S.W.3d 163, 166 (Tex. Crim. App. 2014). We must consider the following two questions when
deciding whether to reform the judgment to reflect a conviction for a lesser- included offense: 1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser- included offense at trial, is there sufficient evidence to support a conviction for that offense?
Thornton v. State
, 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014);
see Rabb v. State
, 483
S.W.3d 16, 20–21 (Tex. Crim. App. 2016). “If the answer to either of these questions is no, the
court of appeals is not authorized to reform the judgment. But if the answers to both are yes, the
court is authorized—indeed required—to avoid the ‘unjust’ result of an outright acquittal by
reforming the judgment to reflect a conviction for the lesser-included offense.”
Thornton
, 425
S.W.3d at 300 (quoting
Britain v. State
,
An offense is included within another if it is established by proof of the same or less than
all the facts required to establish the commission of the offense charged. T EX . C ODE C RIM . P ROC . A NN . art. 37.09 (West 2006). A person commits the offense of indecency with a child if the person
contacts the anus of a child younger than seventeen years of age with intent to arouse or gratify his
sexual desire, including through clothing. T EX . P ENAL C ODE A NN . § 21.11(a)(1), (c) (West Supp.
2018). Here, the act of sexual contact of Amber’s anus by Allen’s penis would be established by
proof of the same or less than all the facts required to establish the act of penetrating Amber’s
anus. Thus, in circumstances such as the one in this case, indecency with a child is a lesser-
included offense of sexual assault.
See Ochoa v. State
,
The State cites several cases bearing on this matter, which we find easily distinguishable.
The first category of cases involve facts that established the appellant’s active encouragement of
the offense. For example, the State cites to
Simon v. State
,
In the second category of cases, the evidence suggested that the appellant was an active
participant in the commission of the offense. In
Beardsley v. State
, the Texas Court of Criminal
Appeals concluded that the evidence was sufficient to convict the appellant as a party to theft of a
car where the evidence established that (1) the appellant had twice previously rented the same car
that was later stolen; (2) during one of the previous rentals, the car was not returned on time, was
*18
kept an additional two weeks, and was mysteriously left in the night with the original keys that
were issued to the appellant and his friend; (3) the car was stolen from the same lot a few weeks
later; (4) appellant was in possession of the car when it was recovered; (5) the license plates on
the car were altered; and (6) the appellant appeared nervous when the police arrived, declined to
provide identification when asked, and eventually admitted that he knew the car was stolen.
Beardsley v. State
,
In the third category of cases, both unpublished and of no precedential value, the evidence
demonstrated the appellants’ actual knowledge of criminal acts. In
Sandoval v. State
, No. 14-12-
00879-CR,
Because the evidence does not show, beyond a reasonable doubt, that Metcalf actively encouraged the commission of the offense, was an active participant in its commission, and had actual knowledge of criminal acts committed by Allen, we find the State’s cited cases distinguishable. We now turn to our own analysis under Section 7.02(a)(3).
Here, prior to the commission of the offense alleged, Amber told Metcalf that Allen was doing bad things, was a monster, and had once tried to pull down her pants. In her voluntary statement, Metcalf said that she did not believe Allen when “he said that it wasn’t anything sexual” and that she kicked him out of the home, though she allowed him to return after providing Amber with a whistle and cell phone. Metcalf’s decision to allow Allen back into her home and her failure to call law enforcement constituted sufficient evidence from which a rational jury could conclude *20 that Metcalf was aware of the threat of sexual contact of Amber by Allen, but failed to take reasonable steps to protect her.
However, because “[t]he accused must know that [s]he was assisting in the commission of
the offense,” the jury was also required to find that, on the occasion that the incident alleged in the
indictment occurred, Metcalf acted with the intent to promote or assist Allen in committing
indecency with a child, beyond a reasonable doubt.
Rivera v. State
,
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. 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.
Therefore, the evidence did not demonstrate Metcalf’s intent to promote or assist in the
commission of indecency with a child, i.e. that she knew she was assisting in the commission of
the offense. Therefore, applying the
Jackson
standard does not show that, at the time of the
offense, Metcalf and Allen were acting together to execute a common purpose.
See Cordova
, 698
S.W.2d at 111;
see also Morrison v. State
,
Based on the facts of this case, we conclude that the second part of the Thornton inquiry is not met. Accordingly, we decline to reform the judgment to reflect a conviction of a lesser- included offense.
V. Conclusion
We reverse the trial court’s judgment and render a judgment of acquittal.
Ralph K. Burgess
Justice
Date Submitted: July 30, 2018
Date Decided: October 16, 2018
Publish
Notes
[1] We will use a pseudonym to refer to the victim in this case. See T EX . R. A PP . P. 9.10(a)(3).
[2] In her voluntary statement, Metcalf wrote, “I remember one night when we lived in Houston and I woke up at 2:30 AM to find Allen coming back to bed. He said he was just checking on the kids but I thought it was strange.”
[4] Testimony from Amber’s brother and stepsister established that, during the time in question, Amber had a bad reputation for truthfulness. Amber clarified that she never told her mother that Allen had sex with her until she was twenty-two.
[5] The record does not support an inference that Allen was anally penetrating Amber when Metcalf responded to Amber’s cry by coming to the door. Also, Amber did not testify as to how many times Metcalf responded to her cries. On the occasions when Metcalf did not respond, Amber did not offer her opinion of whether Metcalf could hear her.
[6] In a letter to Amber in 2015, Metcalf wrote “I want to first apologize for my actions. I know that I should have done more in the past. . . . I didn’t know who to believe I loved both of you and the thought of that even happening was horrifying. . . . What made it more confussing [sic] was he confessed that yes he tried to pull them down but it wasn’t sexual. I didn’t believe him. . . . I should have been stronger. I should have called the cops.”
[7] We note that, while the jury charge generally instructed the jury on the law of the parties, the trial court’s application paragraph made no reference to the law of the parties. See Martin v. State , 252 S.W.3d 809, 814 (Tex. App.— Texarkana 2008, pet. dism’d) (“If the application paragraph of a jury charge does not incorporate a theory recited only in the abstract portion of the charge, a jury cannot convict on that theory.”).
[8] “Texas’ sexual assault statute . . . is a conduct-oriented statute that prohibits distinct, yet very specific acts, with each
act therein proscribed constituting an independent unit of prosecution.”
Mathonican v. State
,
[9]
See Banos v. State
, No. 13-14-00307-CR,
[10] The Texas Family Code provides, in relevant part, that “a parent . . . has . . . the duty of care, control, protection, and reasonable discipline of the child.” T EX . F AM . C ODE A NN . § 151.001(a)(2) (West 2014).
[11] Specifically, Amber testified: Q. Okay. And when is the first time you ever told your mother that anything sexual had occurred or anything bad, molestation or sexual, had occurred between you and Allen? A. I told her when I was 15. . . . Q. All right. And you told her that Allen was a monster? A. Yes, sir. Q. And you told her that he did bad things? A. Yes, sir. Q. Did you tell her any more detail than that? A. No, sir. Q. Why not? A. I was scared. . . . . 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. Q. And you had told him -- did you ever use the words “anal rape”? Did that -- I mean, did those words come to mind? A. No. . . . . Q. And what did you tell her?
[12] By distinguishing these cases, we do not hold that evidence of these categories is required to support a conviction as a party to an offense.
[13] The evidence suggests that Metcalf was criminally negligent in failing to perceive the risk that Allen was sexually assaulting Amber. Section 6.03(d) of the Penal Code states, A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding [her] conduct or the result of [her] conduct when [she] ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a matter and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. T EX . P ENAL C ODE A NN . § 6.03(d) (West 2011). Yet, as noted, proof that a defendant is liable as a party to an offense requires proof that the defendant “acted with intent to promote or assist the commission of the offense.” T EX . P ENAL C ODE A NN . § 7.02(a)(2-3) (West 2011). Thus, even if we found that the evidence established that Metcalf acted with criminal negligence, it would not support a lesser-included offense because it fails to establish that she “acted with intent to promote or assist the commission of the offense.” Id.