Page 35 - November December 2020 TPA Journal

Allen was sexually assaulting Amber when she necessarily found that the defendant committed
walked into Amber’s room and saw Allen with his the lesser offense, and (2) the evidence is legally
hand on Amber’s vagina a year or two after the sufficient to support the defendant’s conviction for
charged offense, the evidence does not prove that the lesser offense.
Metcalf knew that Allen was sexually assaulting The court of appeals considered whether
Amber at the time of the charged offense, and Metcalf’s conviction could be reformed to reflect
there is no other evidence showing that it was that she was convicted of indecency with a child
Metcalf’s conscious objective or desire for Allen as a party, but it ultimately rejected that possibili-
to sexually assault Amber, so she could not have ty. It reasoned that, like the greater offense, the
intended to promote or assist the commission of evidence is insufficient to prove that Metcalf
that offense. Even after viewing the cumulative intended to promote or assist Allen’s commission
impact of all the admitted evidence in the light of indecency with a child because Metcalf never
most favorable to the verdict, we conclude that no saw, and no one ever told her, about any act of
rational jury could have reasonably inferred that indecency prior to the anal penetration alleged in
Metcalf intended to promote or assist the sexual the indictment. According to the court of appeals,
assault of Amber. although “the jury could have concluded that
The court of appeals said that the evidence is Metcalf was concerned that Allen had sexual
insufficient to show that Metcalf and Allen had an desires toward Amber, the allegation that Allen
“agreement to act together to execute a common tried to pull down Amber’s pants fell short of
purpose” at the time, or before, the offense was establishing that Allen succeeded in the act of
committed. The State takes issue with the court of pulling down Amber’s pants or engaged in sexual
appeals’s reliance on the “execute a common pur- contact with her.” that reason, it concluded, the
pose” phrase, arguing that it only applies to the evidence did not show that Metcalf intended to
Section 7.02(a)(2), not Section 7.02(a)(3), and that promote or assist in the commission of indecency
it constituted an additional, unwarranted burden. with a child. We agree with the court of appeals’s
We agree with the State that the cases relied on by analysis.
the court of appeals to reach that conclusion are
distinguishable because they deal with Section CONCLUSION
7.02(a)(2) and that the only burden of proof that We hold that the evidence is insufficient to sustain
the State must meet is the essential elements of the Metcalf’s conviction for sexual assault of a child
offense set out in Section 7.02(a)(3). The deci- by anal penetration and also that her conviction
sions from this Court discussing a “common cannot be reformed to reflect that she was con-
design” or “common purpose” are cases such as victed of a lesser-included offense. Therefore, we
those in which the defendant is charged as a party affirm the court of appeals’s judgment rendering
when he, or a group of people including him, start- an acquittal.
ed a fight during which the victim was assaulted or
killed. Despite the court of appeals’s mistake, Metcalf v. State, Court of Crim. Appeals, No. PD-
however, it reached the right result. 1246-18, April 01, 2020.
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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 EVIDENCE – MENS REA AND PRE-MEDITA-

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