Page 33 - November December 2020 TPA Journal

acts, and the words sexual organ and anus are dis- to go back into the living room and watch a
junctive. movie. Amber testified that she cried out for her
Therefore, we conclude that “penetration of the mother when Allen committed the charged sexual
anus or sexual organ” under Section assault, but she did not know if Metcalf was
22.011(a)(1)(A) of the sexual-assault statute are home. When she was 15 years old, Amber told
different offenses, not merely two different ways Metcalf that Allen was a “monster” who was
of committing the same offense. Accordingly, doing “bad things,” but Amber never said what
those allegations are included in the hypothetical- she meant, and her mother did not ask. When
ly correct jury charge when assessing the suffi- Amber was 16 years old, Allen slapped her and
ciency of the evidence because they are essential tried to pull down shorts when they were outside
elements of their respective offenses. jogging. He admitted to Metcalf that he slapped
3. The Evidence is Insufficient to Prove that her and tried to pull down her shorts, but he
Metcalf claimed that it was not sexual. Metcalf did not
Had the Intent to Promote or Assist believe him.
The State argues that the court of appeals erred She thought that it was sexual and kicked Allen
because it did not consider the cumulative impact out of the house again. Metcalf let Allen return to
of all the admitted evidence, instead engaging in the house that same day and gave Amber a cell
divide-and-conquer analysis. It is true that a phone and a whistle and put up a beaded curtain
reviewing court must consider the cumulative on Amber’s bedroom door. A year or two after the
impact of all the inculpatory evidence, but it can- charged offense, Metcalf walked into Amber’s
not do so without also discussing individual pieces room and saw Allen on top of her with his hand on
of evidence. Here, the court of appeals laid out the her vagina. Metcalf kicked Allen out of the house,
evidence and then addressed its cumulative but she eventually allowed him to return.
impact. After he returned, Amber and Metcalf slept
Amber testified that the abuse began when she together in the master bedroom for two weeks,
was 13 years old and lived in Houston. Metcalf and Allen slept on the couch. Amber testified that
said in a voluntary statement that one time she Allen never sexually assaulted her again.
woke up at 2:30 a.m. “to find Allen coming back According to the court of appeals, testimony
to bed. He said he was just checking on the kids[,] establishing that Metcalf failed to respond to
but I thought it was strange.” Amber said that she Amber’s cries after Allen told her that Amber was
did not tell anyone about the abuse because Allen having nightmares did not support a reasonable
threatened to hurt her siblings. When she was 14 inference that “Metcalf knew about the anal pene-
years old, the family moved to Carthage. tration” unless other evidence showed that
That is also when Allen began to anally rape her. Metcalf did not believe Allen that Amber was hav-
Amber called out for her mother a few times when ing a nightmare. It continued that, “[b]ecause no
Allen was in her room abusing her, but her moth- other evidence was offered to support this infer-
er never came to investigate. ence, a conclusion that Metcalf knew Amber was
Amber testified that sometimes her mother would crying out because she was being sexually abused,
stand by her door and ask, “What’s going on.” instead of having nightmare, was based on specu-
After Allen left the room, he would tell Metcalf lation.” The State argues that a jury could have
that Amber was having nightmares, and Metcalf reasonably inferred that Metcalf “saw through
never investigated further. On another occasion Allen’s ruse that Amber was just having a night-
when Amber cried out, two of her young siblings mare.” But we agree with the court of appeals.
knocked on the bedroom door, but Allen told them

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