Texas Stamp


PD-1246-18 02/06/2019

“Whether the court of appeals erred by striking down the verdict of the jury that Metcalf was guilty as a party to the sexual assault of her daughter,

1.   by conflating the requirements of subsections 7.02(a)(2) and 7.02(a)(3) of the Texas Penal Code and thus imposing upon the State an additional evidentiary burden than that required by subsection 7.02(a)(3); and

2.   by failing to evaluate the cumulative and combined weight of the evidence incriminating Metcalf, choosing instead to view each piece of evidence in isolation and finding it insufficient standing alone to support the jury’s verdict.”

Metcalf’s husband Allen repeatedly sexually assaulted her daughter over a period of years. For her conduct as a party, Metcalf was indicted for a single count of sexual assault by anal intercourse. Metcalf’s daughter testified that she told Metcalf her step-dad was a monster and doing bad things. She said she had called out to her mother and that Metcalf would approach and ask, “What’s going on?” but then leave when her husband said she had a nightmare. One day Metcalf’s daughter reported Allen had tried to pull down her shorts. Metcalf told police she did not believe Allen that it wasn’t sexual and made him leave, but she later allowed him to return home after she had given her daughter a whistle and a cell phone in case he tried to touch her again. Allen continued the assaults, however, until one day Metcalf walked in and saw Allen sexually molesting her daughter. Metcalf briefly kicked him out of the house but then begged her daughter to allow him back for her siblings’ sake. In its general verdict, the jury convicted Metcalf as a party either under a traditional accomplice theory (Penal Code § 7.02(a)(2)—by soliciting, encouraging, directing, aid, or attempting to aid her husband to sexually assault her daughter)—or a legal-duty theory (§ 7.02(a)(3)—by acting with intent to promote or assist the sexual assault, having a duty to prevent it, and failing to make a reasonable effort to do so).

On appeal, the court of appeals found the evidence insufficient to prove Metcalf intended to promote or assist in the commission of the sexual assault. It acknowledged that under a legal-duty theory, the State did not need to prove Metcalf solicited, encouraged, directed, aided, or attempted to aid the sexual assault. But it held that the State had to prove she acted with intent to promote or assist the act of anal intercourse alleged by showing that “at the time of the offense, the parties were acting together, each doing some part of the execution of the common purpose.”  

The State contends this conflates the two theories of party liability. Nothing in the legal-duty theory requires proof that the parties were acting together or executing a common purpose. The cases the court of appeals relies on are traditional accomplice liability cases under § 7.02(a)(2). The State also argues that the court of appeals failed to view the evidence in the aggregate. It argues that the evidence as a whole supports the inference that Metcalf knew Allen was sexually assaulting her daughter and that the jury could infer from Metcalf’s conduct in failing to prevent the assaults that it was her conscious objective and desire to cater to Allen’s wishes rather than keep her daughter safe.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724