*2 PRESSLER, Before PAUL ROBERT- SON and JJ. PRESSLER, Judge.
PAUL appeal from conviction of sexual abuse of a child. employed part-time as a Cherry Day
teacher at the Hill Care Center County. complainant Brazoria among appellant supervised students nap-time. Appellant’s questionable first appellant conduct occurred when allegedly zipped pants after went to the restroom and felt child’s pants. day, On appel- enclosed, lant took the child to a more private area of the room where the children napping, were pants unbuttoned the child’s penis. mouth on the child’s father, The child complained to his reported up the incident. Police set a sur- veillance the school and arrested lant. charged with sexual abuse
of a child and indecency with a child contact. He was convicted sexual abuse § 21.10(a) under TEX.PENAL CODEANN. § 21.11(a)(1) and sentenced to four of Correc- tions and a fine of affirm. $2500.00. We first, on appeal. In the attorney, requiring the place jury, caused such bias and against him was denied a
The child testified at trial to the second event, and his father testified that the child complained to him about the incidents. examination, During direct admit- ted he had on the child’s penis. prosecutor requested on cross- examination that demonstrate the act on doll. The State contends error, to resolve the onstration. even if it were disputed issues of intent and Error is it was harmless error. harmless if § 21.10(a). the nature of his act under One exists that element that section is that the act is might have affected the as- committed “with intent sessed. Johnson *3 person.” any the sexual desire of TEX.PE- (Tex.Crim.App.1983). 538 In of view the § 21.01(1)(A) (Vernon NAL CODE ANN. appellant’s guilt and the de- Supp.1984) defines “deviate sexual inter- him, presented pos- fense “any part any course” as contact between sibility existed that the demonstration af- genitals person of of the one and the fected the assessed. person.” or anus We find that was not denied a appellant’s The state- State introduced required fair trial because the State him to police to in he he which admitted that ground this act. His first demonstrate boy’s placed mouth in contact with the his error is overruled. thirty sec- penis and “licked it for about in contends the second testimony open his in onds less.” In ground the erred in that trial court court, licking the child’s appellant denied allowing the that some of State to show his his mouth on penis, but admitted argues He friends were homosexuals. He testified that he did it. further court attempt impeach testimony. his was an to any anything not at time do to the child It is correct that the character of one’s gratified his own sexual desire. guilt; it associates is no evidence of ability The to its burden of State’s meet may held not be im also been that one expert complicated testi- the peached by the of his associates. character mony psychologist of a called State, 52, (Tex.Crim. 513 53 Gant v. S.W.2d ho- testified that had latent App.1974). appellant’s defense conflicts, “Most of the mosexual on that his conduct was based his assertion threatening, non-gratify- very time impulse unexplainable, irresistible was an ing, they regret and liter- fear and remorse to homosexual feel attributable his latent away ally shrink from that.” ings. The of evidence of his introduction is not Admission of offensive conduct attempt conduct was an active homosexual guilt of the necessarily an admission of psychologist. testimony to rebut charged. denying In that he licked offense defendant has It is not until the committed the in issue that the placed his own character to his act with the intent may of his bad State introduce evidence desire, appellant attempts negate to sexual State, v. 656 S.W.2d character. Ramirez an essential element the offense. ref’d). 1983, 82, pet. (Tex.App. Tyler 83 — nec- contends the demonstration was State error and then An accused cannot invite essary help to element and to establish this Guerrero, 521 complain it. Ex Parte testimony. rebut 613, (Tex.Crim.App.1975). The 614 S.W.2d requisite specific to intent placed his own character is issue desire of arouse or the sexual defense and thus “invited” inferred from the defend person appellant’s second testimony. We overrule conduct, sur his remarks all ant’s ground of error. rounding v. circumstances. McKenzie See is af- of the trial court decision State, (Tex.Crim.App. 617 S.W.2d 216 firmed. State, 1981); 85 Bowles McKenzie, ELLIS, J., dissents. complainant was allowed to demonstrate Justice, dissenting. her the accused touched where demonstrating on one of her own dolls. myself disagreement with the Finding like panel, I would case, other members suf
In the instant there was respectful my dissent. questioned record to allow ficient reason
177
Rivera,
appeals
surrounding
Daniel
from a
circumstances. McKenzie
State,
(Tex.Crim.App.
judgment of conviction of sexual
of a
abuse
(Tex.
1981);
Bowles v.
than to inflame and the minds of jurors against appellant.
This evidence have been relevant
but should have been excluded the trial judge because its value was sub- AND TEXAS FIRE CASUALTY COMPANY, al., Appellants, et stantially outweighed by danger of un- bias, prejudice, presenta- and needless tion of cumulative evidence. HARRIS BAIL COUNTY BOND BOARD, Appellee. The State contends the demonstration necessary to help establish a element No. B14-84-265CV. of the offense of sexual abuse of child. Court of element, contends, the State is that the act be committed with the intent to arouse person. sexual desire of specific intent to any person sexual desire of can be inferred appellant’s conduct, remarks,
from