Page 29 - November December 2020 TPA Journal

Joe C. Tooley, Legal Digest Editor
Joe C. Tooley, Attorneys & Counselors, Rockwall, Texas
www.TooleyLaw.com 972-722-1058

TEXAS POLICE ASSOCIATION

LEGAL DIGEST

November-December 2020

AUTHOR’S NOTE: It is the goal of this submission to extract those portions of relevant appellate
opinions or the syllabus of the legal reporter which bear directly upon law enforcement methods
and provide guidance for officers on an operational level. Much of the information pertaining to
these cases is lifted verbatim from the court opinion or syllabus with independent analysis inserted
as appropriate. Due to clarity for training purposes, the distinction between quotes from the
opinions and inserted analysis is not always identified and legal citations within the opinion are
often omitted. Emphasis is placed upon reported decisions from the Fifth Circuit Court of Appeals
and the Texas Court of Criminal Appeals.

ELEMENTS. ACCESSORY TO SEXUAL Under the hypothetically correct jury charge, the
ASSAULT State had to prove that Metcalf, at the time of the
offense, intended to promote or assist the commis-
Appellant, Lydia Metcalf, was convicted as a sion of the anal penetration alleged in the indict-
party of second-degree felony sexual ment. But because the evidence does not show that
assault based on her husband’s anal rape of their it was Metcalf’s conscious objective or desire for
then 16-year-old daughter, Amber.1 Allen to sexually assault Amber, the evidence is
Metcalf was sentenced to three years’ imprison- insufficient to show that she intended to promote
ment but was not fined. On appeal, she or assist commission of that offense.
Metcalf’s husband, Allen Metcalf (Allen), sexual-
(1Amber is the pseudonym adopted by the court ly assaulted their daughter, Amber, over several
of appeals, and we will continue to use it.) years. He pled guilty to twelve counts of second-
degree sexual assault3 and three counts of inde-
argued that the evidence is legally insufficient cency with a child. Metcalf was indicted on one
because it did not show that she had the intent to count of anal-penetration sexual assault that
promote or assist her husband’s sexual assault of occurred on or about December 2010. She was
their daughter. The court of appeals agreed and charged as the primary actor, but the jury was
rendered an acquittal. We granted the State’s peti- instructed that it could convict her as a party under
tion for discretionary review asking us to review Section 7.02(a)(2) or Section 7.02(a)(3). The jury
the decision of the court of appeals. Because we convicted 4 Metcalf as a party, and she was sen-
agree with the lower court, we will affirm its tenced to three years’ imprisonment.
acquittal.

Nov.-Dec. 2020 www.texaspoliceassociation.com • (512) 458-3140 25