Page 101 - TPA Police Officers Guide 2021

plicitly, when one of the robbers brandished his firearm; and a gun was pointed at a bank customer when he tried
to enter the credit union. Guns were later retrieved from the Tundra and from Jordan’s brother’s apartment in a shoe-
box with other robbery paraphernalia. Based on this evidence, a reasonable jury, without being manifestly unjust,
could conclude that Wise was aware that his co-defendants would be carrying weapons in the commission of the
robbery, and that those weapons would be used to threaten or assault those the robbers confronted.

If the district court erred in admitting testimony that Jordan and Wise are brothers, the error was harmless.

We review evidentiary rulings for an abuse of discretion, subject to the harmless error rule.18 An abuse of discretion
occurs when a ruling is grounded in a legal error or based on a clearly erroneous analysis of the evidence.19 But
even if such an error occurs, we will not reverse if the guilty verdict was unattributable to the error—the harmless
error rule.
. . .
As the Government notes, the testimony was harmless because it did not have a “substantial and injurious effect
or influence in determining the jury’s verdict.”
Neither Jordan nor Wise has shown any reversible error, and their convictions and sentences are AFFIRMED.

th
th
U. S. v. Jordan, Wise. No. 18-20564, 5 Cir., Dec. 13 , 2019.
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ELEMENTS. ACCESSORY TO SEXUAL ASSAULT

Appellant, Lydia Metcalf, was convicted as a party of second-degree felony sexual assault based on her husband’s
anal rape of their then 16-year-old daughter, Amber.1 (1Amber is the pseudonym adopted by the court of appeals,
and we will continue to use it.)

Metcalf was sentenced to three years’ imprisonment but was not fined. On appeal, she argued that the evidence is
legally insufficient because it did not show that she had the intent to promote or assist her husband’s sexual assault
of their daughter. The court of appeals agreed and rendered an acquittal. We granted the State’s petition for dis-
cretionary review asking us to review the decision of the court of appeals. Because we agree with the lower court,
we will affirm its acquittal.

Under the hypothetically correct jury charge, the State had to prove that Metcalf, at the time of the offense, intended
to promote or assist the commission of the anal penetration alleged in the indictment. But because the evidence
does not show that it was Metcalf’s conscious objective or desire for Allen to sexually assault Amber, the evi-
dence is insufficient to show that she intended to promote or assist commission of that offense.

Metcalf’s husband, Allen Metcalf (Allen), sexually assaulted their daughter, Amber, over several years. He pled
guilty to twelve counts of second-degree sexual assault3 and three counts of indecency with a child. Metcalf was
indicted on one count of anal-penetration sexual assault that occurred on or about December 2010. She was charged
as the primary actor, but the jury was instructed that it could convict her as a party under Section 7.02(a)(2) or Sec-
tion 7.02(a)(3). The jury convicted 4 Metcalf as a party, and she was sentenced to three years’ imprisonment.

3Since this offense was committed, the legislature has added a new statutory subsection under which Allen could
have been charged with first-degree felony sexual assault. Act of May 24, 2019, 86th Leg., R.S., ch. 738, § 2,
2019 Tex. Sess. Law Serv. 2049–50 (codified at TEX. PENAL CODE § 22.011(f)(2)) (citing TEX. PENAL CODE
§ 25.02 (prohibiting sexual intercourse and deviate sexual intercourse with certain family members)).

4Section 7.02(a)(2) and (a)(3) of the Penal Code state that,

(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, h solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense; or

A Peace Officer’s Guide to Texas Law 95 2021 Edition