Page 32 - November December 2020 TPA Journal

ticular offense for which the defendant was tried.” prevent the commission of the offense of sexual
The law “authorized by the indictment” consists assault[,] (5) by penetration of Amber’s anus[,] (6)
of the statutory elements of the offense as modi- by the “defendant’s sexual organ.”
fied by the indictment allegations. “Party liability
is as much an element of an offense as the enu- The State argues that the court of appeals erred
merated elements prescribed in a statute that because it required it to prove that Metcalf knew
defines a particular crime.” about the sexual assault alleged in the indictment.
It asserts that Metcalf did not need to know
Section 7.02(a)(3) of the Penal Code states that, whether Allen penetrated Amber’s anus or vagina
because those are only manner-and-means allega-
(a) A person is criminally responsible for an tions, not essential elements of the offense, and
offense committed by the therefore are not included in the hypothetically
conduct of another if: correct jury charge.
* * * If the phrase “penetration of the anus or sexual
(3) having a legal duty to prevent commission of organ” describes different manners and means of
the offense and acting committing a single offense, as the State argues,
with intent to promote or assist its commission, he those allegations are not incorporated into the
fails to make a hypothetically correct jury charge because they
reasonable effort to prevent commission of the are not essential elements of the offense. But if
offense. “penetration of the anus or sexual organ” defines
two distinct criminal offenses, the State had to
To prove the intent-to-promote-or-assist element, prove that Metcalf intended to promote or assist
the State must show that it was the defendant’s the anal penetration in the indictment because the
conscious objective or desire for the primary actor anal-penetration allegation is an essential element
to commit the crime. In assaying the record for of the offense.
evidence of 1intent, we look to “events before,
during and after the commission of the offense.” We have previously decided an identical issue in
the aggravated-sexual-assault statute. It controls
(emphasis by ed.) our analysis here. In Gonzales v. State, 304
S.W.3d 838 (Tex. Crim. App. 2010), we had to
Although we can look to events taking place after decide whether the same phrase—“penetration of
commission of the offense, the intent to promote the anus or sexual organ”—in the aggravated-sex-
or assist must have been formed contemporane- ual-assault statute defined one or two offenses. We
ously with, or before, the crime alleged was com- concluded that the phrase defined two separate
mitted. Circumstantial evidence is as probative as offenses, reasoning that aggravated sexual assault
direct evidence when determining whether a per- is a nature-of-conduct offense, penetration of the
son was a party to an offense. anus and penetration of the sexual organ are dis-
tinct acts, and the words anus and sexual organ are
According to the court of appeals, the hypotheti- written in the disjunctive.
cally correct jury charge required the State to This analysis applies with equal force to Section
prove that, (1) having a legal duty to prevent the 22.011(a)(1)(A) of the sexual assault statute. Like
commission of sexual assault[,] (2) and acting the aggravated-sexual-assault statute, sexual
with intent to promote or assist its commission, (3) assault is a nature-of-conduct offense, penetration
Metcalf[,] (4) failed to make a reasonable effort to of the anus and sexual organ constitute discrete

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