dissenting.
Finding myself in disagreement with the other members of the panel, I would like to record my respectful dissent.
*177Appellant, Daniel Rivera, appeals from a judgment of conviction of sexual abuse of a child. The jury assessed his punishment at four (4) years in the Texas Department of Corrections and a fine of $2500.00. I would reverse.
Appellant presents two grounds of error. In his first ground he contends that the court erred in allowing the prosecuting attorney to make appellant place his mouth on the penis of an anatomical doll in the presence of the jury. Appellant claims that this caused such bias and prejudice against him by the jury that he was denied a fair trial. I agree.
Appellant’s attorney timely objected to this procedure stating that it was grotesque, that the verbal description was sufficient, and that requiring his client to simulate something with a doll was totally disgusting, inflammatory, and prejudicial. I find that the court erred because this was unnecessary because appellant had signed a written confession, that was allowed into evidence, in which he admitted the offense. On direct examination in court he admitted and confessed to the elements of the offense and he admitted that he put his mouth on the complainant’s penis. There cannot be any other purpose or intent by the prosecutor in having appellant commit such an act upon an anatomical doll other than to inflame and prejudice the minds of the jurors against appellant.
This evidence may have been relevant but should have been excluded by the trial judge because its probative value was substantially outweighed by the danger of unfair bias, prejudice, and needless presentation of cumulative evidence.
The State contends the demonstration was necessary to help establish a element of the offense of sexual abuse of a child. The element, the State contends, is that the act be committed with the intent to arouse or gratify the sexual desire of any person. This specific intent to arouse or gratify the sexual desire of any person can be inferred from appellant’s conduct, his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211 (Tex.Crim.App.1981); Bowles v. State, 550 S.W.2d 84 (Tex.Crim.App.1977). I fail to see how this demonstration could show appellant gratified his sexual desires at the time of the offense.
The majority opinion states that if this was error that it was harmless, I do not agree.
The test for harmless error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction or affected the punishment assessed. Clemons v. State, 605 S.W.2d 567 (Tex.Crim.App.1980).
Contrary to the majority, I cannot state that there is a reasonable possibility that this inadmissible evidence was harmless error, especially when one considers the fact that appellant filed an application for probation and the jury assessed punishment at a period of four (4) years in the Texas Department of Corrections. I believe that in the jury’s assessment of punishment it is quite conceivable that the jury could have been swayed by bias and prejudice perceived from viewing the demonstration of appellant putting his mouth on the penis of the anatomical doll.
I feel that this case should be reversed because appellant was denied a fair trial.