             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD-1246-18



                              LYDIA METCALF, Appellant

                                              v.

                                 THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SIXTH COURT OF APPEALS
                            PANOLA COUNTY

              K EEL, J., filed a concurring opinion.

                                CONCURRING OPINION

       I concur in the majority’s judgment; the evidence was legally insufficient to

convict Appellant as a party to her husband’s sexual assault of her daughter. Viewed in

the light most favorable to the conviction, the evidence would not have authorized a

rational jury to find that Appellant acted with the intent to promote or assist the

commission of an offense against her daughter. See T EX. P ENAL C ODE § 7.02(a). But I

disagree with the majority’s suggestion that the State had to prove that Appellant intended
                                                                   Metcalf concurrence–Page 2

to promote or assist the specific offense committed by her husband. The State did not

bear that burden because of the law of transferred intent.

       A person is criminally responsible for causing a result if the only difference

between what happened and what she desired, contemplated, or risked is that a different

offense was committed. T EX. P ENAL C ODE § 6.04(b)(1). Thus, if a defendant intends to

promote or assist the commission of one crime, but her co-defendant commits a different

crime, that difference does not shield her from party liability.

       So, in this case if the evidence had shown that Appellant acted with the intent to

promote or assist her husband’s commission of one type of sexual assault, but he actually

committed a different type of sexual assault, the difference between what she intended to

promote or assist and what he actually did would not have shielded her from liability; she

still would have been guilty of sexual assault, provided that the other elements of party

liability were met. See T EX. P ENAL C ODE §§ 6.04(b)(1), 7.02(a).

       To the extent that the majority opinion suggests that Appellant had to act with the

intent to promote or assist a particular sexual assault, I disagree. Consequently, I concur

only in the majority’s judgment.




Filed: April 1, 2020

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