Michael McDaniel v. The State of Texas--Appeal from 264th District Court of Bell County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-95-00191-CR

Case Date: 12/20/1995

Plaintiff: Arthur Lee Dunbar, Jr.

Defendant: The State of Texas--Appeal from 12th District Court of Leon County

Preview:Arthur Lee Dunbar, Jr. v. The State of Texas--Appeal from 12th District Court of Leon County
dunbar v state /**/ IN THE TENTH COURT OF APPEALS

No. 10-92-228-CR

ARTHUR LEE DUNBAR, JR., Appellant v.

THE STATE OF TEXAS, Appellee

From the 12th District Court Leon County, Texas Trial Court # 7472-B

OPINION

A jury convicted Arthur Lee Dunbar, Jr. of aggravated sexual assault and sentenced him to life imprisonment and a $10,000 fine. See Tex. Penal Code Ann. 22.021 (Vernon 1989). Dunbar appeals on seven points. We will affirm the judgment. facts Dunbar does not raise any sufficiency points on appeal. However, for clarity, we will set out the evidence. The State sought to prove that Dunbar abducted the victim from Lee College in Baytown on July 15, 1991. He wanted the victim, a secretary to the dean of vocational studies, to alter his Lee College transcript. According to the State, Dunbar had previously forged his Lee College transcript and used the altered document to apply to Southern Methodist University. SMU discovered the forgery, contacted Dunbar, and requested an official transcript from Lee College.

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On July 15, Dunbar abducted the victim from her building on the Lee College campus and began driving on Interstate 10 and then north on Interstate 45. During this drive, he forced her to call various offices at Lee College and to request that his transcript be changed. He eventually drove her to a "shack" outside of Centerville where he raped her. After the assault, the victim escaped and flagged down a passing car. Dunbar was arrested shortly thereafter. The defense attempted to show that Dunbar and the victim had had a relationship prior to July 15, that Dunbar had paid the victim $5,000 to alter his transcript, and that the sexual contact had been consensual. The victim, Marlene G., testified that on July 15, she was working as a secretary to the dean of vocational studies at Lee College in Baytown. At approximately 1:30 p.m., a young black male came into the office saying he was having trouble with his computer classes. She gave him directions to another campus office. A few minutes later, Marlene was using the photocopier in an adjacent room when the same man approached her and asked her to look at a paper he held. He pulled a gun from a duffle bag, put it next to her jaw, and told her to "be quiet." He told her he wanted her to alter his transcript. She told him she did not have the knowledge or capacity to alter transcripts. He then escorted her to his car. The man, whom the victim identified as Dunbar, began driving on Interstate 10. He stopped for her to call her office. She spoke with her student assistant, Gloria Kolb, and told Kolb that she was sick and that her husband was taking her home. Kolb, who knew Marlene was divorced, found Marlene's purse under her desk and became suspicious. Dunbar began driving north on Interstate 45. He stopped several more times for the victim to call back to Lee College to make requests that Dunbar's transcript be changed. At some point during the drive, Dunbar handcuffed the victim. As the afternoon progressed, her co-workers at the college became alarmed and alerted the Baytown police to a possible kidnapping. The victim testified that when they reached Centerville, Dunbar drove down farm-to-market road 1511, down a dirt road, and stopped at a locked gate. He did not have a key to unlock the padlock. At gunpoint, he forced her to climb over the gate, led her to a "shack," and ordered her to remove her clothing. He struck her in the face and kicked her in the groin. He then forced her into oral and vaginal intercourse. He later stepped outside the "shack," leaving her handcuffed to a bureau. She slipped out of one of the cuffs and escaped into the woods behind the building. She heard a gunshot as she ran away and eventually flagged down a passing vehicle. She testified that she had not known Dunbar prior to July 15, 1991, and that she had not consented to sexual intercourse. James Gunnels, a plasterer and pastor, testified that he and his son were driving home on FM 1511 around sundown on July 15 when they saw a woman about seventy yards from the road waving her hands. He stopped his vehicle, and the woman ran towards them. She was frightened and had a handcuff on one wrist. She told them that she had been kidnapped and raped. Gunnels took her to his home and phoned the sheriff. Dunbar did not testify. His uncle, Roy Dunbar, testified that he had seen Dunbar with an "older, white lady" in Houston in June 1991. He thought the lady's name was "Marlene" or "Marlin." He testified that he had seen Dunbar with the same woman on July 15, 1991, at the "old home place" previously identified as the "shack." The woman did not appear to be under duress. In a courtroom lineup, Roy Dunbar identified the victim as the woman he had seen at the home place on July 15. Carolyn Mathis, Dunbar's sister, testified that Dunbar introduced her to a white woman named "Marlene" on July 15, 1991, near FM 1511. The two appeared to be on friendly terms. sheriff as bailiff excluded from "the rule" Dunbar's first point is divided into two parts. First, he complains that the court erred in waiving application of "the Rule" to Sheriff Royce Wilson and allowing the sheriff to serve as bailiff and as a witness. Second, he complains that the court erred in denying his motion for a mistrial due to the sheriff's misconduct in having contact with a juror and in discussing a defense witness's testimony with the complainant. Article 36.24 of the Code of Criminal Procedure states: "The sheriff of the county shall furnish the court with a bailiff during the trial of any case to attend the wants of the jury and to act under the direction of the court. If the person furnished by the sheriff is to be called as a witness in the case he may not serve as bailiff." Tex. Code Crim. Proc. Ann. art. 36.24 (Vernon 1981). This article was adopted after the Supreme Court decision in Turner v. Louisiana, 379
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U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). In Turner, the two principal prosecution witnesses were deputy sheriffs. The jury was sequestered during the trial, and the two testifying deputy sheriffs were among those deputies who were in "close and continual association with the jurors." Id. at 468, 547. The Court recognized the "extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution." Id. at 473, 550. Prior to trial, Dunbar's attorney invoked "the Rule": [DEFENSE]: And I'm going to invoke that rule. Now, what makes it complicated, Arthur, is the fact that Sheriff Wilson is going to be a witness in this case and he's also here providing security. Okay? He's here in a dual capacity. And the question I have, Arthur, is do you have any objection to us waiving this rule as it regards Sheriff Wilson? . . . do you have an objection to his being here and being a witness? MR. DUNBAR: Yes, sir, I do. [DEFENSE]: Okay. In that case, Your Honor, we would ask that the sheriff be included under the scope of the rule. THE COURT: Counsel? [STATE]: Judge, I don't think there's any adequate security. There's two other deputies -- three other deputies, Rosier, Hall and Duck, that may be witnesses in the case that would be under the rule, and I guess I could ask the sheriff, he's still under oath, of whether -- is there anyone else that could provide security for the courtroom other than yourself? SHERIFF WILSON: No, sir, I don't have anybody else. THE COURT: Okay. Over your objection, I'm going to excuse the sheriff from the rule. [DEFENSE]: Thank you, Your Honor. THE COURT: For the purpose of providing security. (Emphasis added). The State argues that Sheriff Wilson provided courtroom security and did not act as bailiff. Dunbar asserts that there were significant periods when Gene Douget, the court bailiff, was absent from the courtroom and the sole person acting as "bailiff" was Sheriff Wilson. The record reflects many references to "Gene" as the bailiff. Throughout the record, Douget's verbal responses are designated as "BAILIFF" and Wilson's responses and testimony are designated "SHERIFF WILSON." The judge makes several references to "Gene," requesting that he bring the jury in after breaks in the proceedings. On one occasion, it appears that Wilson was on the witness stand when the jury was brought back in. During jury deliberations, the court makes several references to the "bailiff" taking notes to and from the jury. To support his assertion that there were "significant periods" when Wilson was the sole person acting as "bailiff," Dunbar cites only one instance. During early morning proceedings, outside the presence of the jury, the court asked Wilson to bring in a witness: "Why don't you get him, Royce." The potential harm sought to be avoided by article 36.24 is a bailiff's close association with the jury and the resulting effect on the jury's impartiality. The record does not reflect that Wilson acted as the "bailiff" for any significant periods of time. Although he was present in the courtroom, the record does not reveal that he was in the type of "continuous and intimate association" with the jury prohibited in Turner. See id. Although Wilson was not acting as a bailiff and was properly excluded from the Rule, we do not wish to encourage the practice of a law enforcement officer acting in the dual role as a courtroom security officer and a witness. The courts, in analyzing due-process claims, have looked to the law enforcement officer's contact with the jury and the importance of the officer's testimony. See id. at 467, 547 (deputies had close and continuous contact with the jury and were key prosecution witnesses testifying to the details of their investigation and of the defendant's written confession and oral admissions); Gonzales v. Beto, 405 U.S. 1052, 92 S.Ct. 1503, 31 L.Ed.2d 787 (1972) (Turner did not set down

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a rigid per se rules requiring reversal whenever a government witness comes into any contact with the jury); Coots v. State, 826 S.W.2d 955, 960-61 (Tex. App. Houston [1st Dist.] 1992, no pet.) (error in allowing bailiff to give vital testimony rebutting alibi where State failed to inform court why bailiff should be excused from the Rule); Long v. State, 820 S.W.2d 888, 890-91 (Tex. App. Houston [1st Dist.] 1991, pet. ref'd) (defendant failed to object to sheriffbailiff testifying and record silent on sheriff-bailiff's contact with jury). We note that Wilson's testimony before the jury was limited. He testified that he received a call at home from the Baytown police around 6:30 p.m. on July 15. He was told of a kidnapping at Lee College and that the suspect was Arthur Lee Dunbar, Jr. He was given a description of Dunbar's vehicle. Although he did not know Dunbar, he knew Dunbar's father, who lives in Leon County. Wilson drove past Dunbar, Sr.'s house but did not see the suspected vehicle. Around 8:30 p.m., he received a call from James Gunnels, the man who had picked up the victim on FM 1511. Gunnels told Wilson that he had a female at his home who had been kidnapped in Baytown by Dunbar and that Dunbar was armed. Wilson met his deputies at the Centerville office and briefed them on the phone call from the Baytown police. He dispatched the deputies to the Dunbar residence and went to the Gunnells' residence. When he arrived, he found the victim with a handcuff on her right wrist and her legs scratched and bleeding. He testified that he did not explore the possibility of a consensual relationship between Dunbar and the victim. Most of Wilson's testimony was cumulative. Further, except for a "Howdy" contact with a juror in the men's restroom, the record does not reflect that Wilson had any contact with the jury. See Long, 820 S.W.2d at 891. Although we think Wilson's dual role ill-advised, we do not find that it violated the standards of due process. We overrule the point as to a violation of article 36.24 of the Code of Criminal Procedure. In the second part of his first point, Dunbar complains that court erred in denying his motion for mistrial due to Wilson's contact with a juror and his discussion of Roy Dunbar's testimony with the victim in violation of "the Rule." See Tex. R. Crim. Evid. 613. The "contact" with a juror consisted of a juror saying, "How are you, Sheriff or Royce" or "Howdy" to Wilson in the men's restroom as Wilson was waiting for Dunbar. Wilson testified that it was a casual greeting and that nothing about the case was discussed. The court had instructed the jury when it was impanelled to avoid contact and conversation with people involved with the case. The court instructed the jury that the only acceptable contact "is to exchange a hello and a goodbye." The contact between the juror and Wilson did not violate the court's instructions. The court did not err in denying the motion for mistrial for this contact. Dunbar also complains of Wilson's discussion of testimony of a witness with the victim. Carolyn Mathis testified, out of the presence of the jury, that she had overheard Wilson asked the victim, "This guy in here named Roy Dunbar is saying that he knows you and have you ever seen him before?" Wilson testified outside the jury's presence: [STATE]: Okay. Do you recall any conversation you had with [the victim] within the last hour about Roy Dunbar's testimony? [WILSON]: I went down and got her and asked her to come up here and I said, "Have you seen him today," or, "Do you know him," or something to that effect. I did. [STATE]: Did you discuss any of the testimony that was going on in the courtroom? [WILSON]: No, sir. [STATE]: And was this prior to getting these ladies to come in on the line up? [WILSON]: No, sir, it was after. [STATE]: It was afterwards? [WILSON]: Yes, sir. [STATE]: All right. But you didn't discuss anything about the testimony you've heard in the courtroom?

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[WILSON]: I did not. Dunbar then moved for a mistrial "because of this violation of the rule." The court denied the motion. Rule 613 of the Rules of Criminal Evidence provides for the exclusion of witnesses so that they cannot hear the testimony of other witnesses. Id. The rule does not authorize the exclusion of a "person whose presence is shown by a party to be essential to the presentation of his cause." Id. The State argues that there was inadequate security and that Wilson was the only officer available to provide courtroom security because his three deputies were going to be witnesses. The record reflects that Dunbar had a prior conviction for murder, that he was on parole, that his parole had been revoked, and that he had been in jail since his arrest. As the State argues, Dunbar was on trial from raping a woman at gunpoint. The record reflects that Wilson escorted Dunbar to and from the restroom during trial indicating that Wilson was providing security by guarding Dunbar. The State argues that, given Dunbar's prior murder conviction and the gravity of the pending charge of aggravated sexual assault, the court had legitimate concerns about courtroom security. Enforcement of the Rule rests within the sound discretion of the court. Green v. State, 682 S.W.2d 271, 294 (Tex. Crim. App. 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985); Hendley v. State, 783 S.W.2d 750, 752 (Tex. App. Houston [1st Dist.] 1990, no pet.). We do not find that the court abused its discretion in excluding Wilson from the Rule. Because Wilson was not subject to the Rule, the court did not err in denying the motion for mistrial. We overrule point one. challenge for cause In point two, Dunbar asserts that the court erred in overruling his challenge for cause to a juror who could not consider the minimum punishment if a deadly weapon had been used or exhibited during the commission of the offense. During voir dire, both Dunbar and the State challenged various jurors for cause. The court sustained several of the challenges. Dunbar's for-cause challenge of Juror Eberle was overruled after Dunbar and the court questioned him further on the range of punishment. The court denied Dunbar's request for an additional peremptory strike. The attorneys made their peremptory strikes and the jury was seated. On the fourth day of trial, Dunbar made a bill of exception arguing that, because the court denied his challenge of Juror Eberle for cause, he was compelled to accept Juror Helm. Article 35.16 of the Code of Criminal Procedure provides that a defendant may challenge a juror for cause if the juror has a bias or prejudice against any part of the law applicable to the case upon which the defense is entitled to rely. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 1993). Dunbar asserts Juror Eberle's answers on voir dire indicated that he was unable to consider the minimum punishment range of five years. However, Dunbar failed to preserve the complaint for our review. When the court errs in overruling a challenge for cause against a venire member, a defendant is harmed only if he uses a peremptory strike to remove the member and thereafter suffers detriment from the loss of the strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987). Error is preserved for review only if the defendant 1) used all of his peremptory challenges, 2) asked for and was refused additional peremptory challenges, and 3) was then forced to take an identified objectionable juror whom the defendant would not otherwise have accepted had the court granted his challenge for cause or granted him an additional peremptory challenge. Id; Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, U.S. , 113 S.Ct. 1285, L.Ed.2d (1993). The order of events is crucial in determining whether a complaint is preserved for appellate review. Jones, 833 S.W.2d at 123. Many of the cases addressing the procedure for preserving error when a challenge for cause is denied are capitalmurder cases. See e.g., Jones v. State, 833 S.W.2d 118; Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989). Both Dunbar and the State cite capital-murder cases to support their position on the timeliness of Dunbar's objection to Juror Eberle. The voir dire procedure differs, however, between capital and non-capital cases. In capital cases, each venire member may be questioned separately. Tex. Code Crim. Proc. Ann. art. 35.17(2) (Vernon Supp. 1993). Immediately after the questioning, the State and defense make their challenges for cause or peremptory challenges against the
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individual panel member. Id. art. 35.13 (Vernon 1989). In a non-capital case, voir dire is conducted in the presence of the entire panel. Id. art. 35.17(1) (Vernon 1989). Both parties make their peremptory challenges by striking the name of the unacceptable panel member from the list provided by the district clerk. Id. art. 35.26(a) (Vernon 1989). The parties deliver their lists to the district clerk, who reads off the first twelve remaining names. Id. To preserve a complaint for appellate review, a party must have presented the trial court with a timely request, objection, or motion, stating the specific grounds for the ruling he desires. Tex. R. App. P. 52(a). The complaining party must obtain a ruling on his request, objection, or motion. Id. This requirement of a timely specific objection serves the purpose of allowing the trial court the opportunity to make a determination and ruling on the complained-of point at a time when the court can effectively deal with the issue at hand. Fuller v. State, 827 S.W.2d 919, 924 n.4 (Tex. Crim. App. 1992) (defendant in capital murder trial did not object to court's sustaining state's challenge for cause until after veniremember excused and next veniremember was being questioned). By waiting to complete his objection until well into trial, Dunbar denied the trial court the opportunity to reconsider his ruling at a time when he could have removed Eberle from the panel, restored Dunbar's peremptory challenge, and impanelled a complete jury. We hold that to preserve a complaint that the court erred in overruling a challenge for cause based on voir-dire answers in a non-capital case, the party must show that he complied with the Demouchette elements that he exhausted all his peremptory challenges, that he requested and was denied an additional peremptory challenge, and that he was forced to take a particular juror who was objectionable to him prior to the jury being sworn. Because Dunbar failed to timely fulfill the requirements of Demouchette, the complaint is not preserved for our review. See Tex. R. App. P. 52(a). We overrule point two. mental state of victim In point three, Dunbar complains that the court erred in allowing evidence of the victim's mental state during the guiltinnocence phase of the trial. Specifically, he complains of the testimony of Dr. Bumgardner, the victim's chiropractor whom she saw two days after the assault, who testified about her physical injuries. Bumgardner advised her to see a psychiatrist because it appeared to him that she was "in a state of shock." Dunbar objected: "Your Honor, I'm going to object to that. I don't believe a chiropractor is capable of analyzing shock. That's a medical condition." The court overruled the objection. Dunbar's objection at trial was that Bumgardner, as a chiropractor, was not qualified to render a medical opinion on "shock." On appeal, he complains that evidence of a victim's mental state is inadmissible during the guilt-innocence phase of trial. Dunbar's objection at trial does not comport with his complaint on appeal; therefore, the complaint is waived and nothing is presented for our review. See Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988); White v. State 543 S.W.2d 366, 369 (Tex. Crim. App. 1976). Furthermore, the victim had previously testified, without objection, that she had spent thirty-five days in a psychiatric hospital after the incident being treated for "post-traumatic syndrome." Having allowed her testimony of her mental state without objection, the admission of Bumgardner's subsequent testimony was cumulative. An error in admission of evidence is cured where the same evidence is admitted elsewhere without objection. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). We overrule point three. warrantless arrest In point four, Dunbar complains that the court erred in failing to find that he was illegally arrested without probable cause and without a warrant. During the trial, the court conducted a hearing on the motion to suppress outside the presence of the jury. Detective Randall Rhodes of the Baytown Police Department testified that he was notified at 6 p.m. on July 15 of a possible kidnapping of a Lee College secretary. Paperwork found at the college identified the kidnapper as Arthur Dunbar, Jr. Rhodes' investigation revealed that Dunbar was driving a green, four-door Lincoln Continental and that he had a Dallas address but had been paroled to Leon County on a homicide conviction. Rhodes called Sheriff Wilson at home at approximately 6:35 p.m. Wilson's testimony is set out above in connection with point one. Gerry Rosier, a Leon County deputy sheriff, testified that Wilson instructed him to go to FM 1511 on the evening of July 15. He was informed that Dunbar was suspected of
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the kidnapping and was driving a green Lincoln Continental and that Dunbar's father had a house on FM 1511. As he drove on FM 1511, he saw three black males standing by a green Continental parked on the side of the road. Deputy Rosier asked if any of the men were Arthur Dunbar, Jr. Dunbar identified himself and was placed under arrest for kidnapping. Rosier testified that he did not have an arrest warrant, but that he assumed Dunbar, as an alleged kidnapper, was a flight risk. Rosier looked into the Continental and saw the magazine for a semi-automatic weapon lying in the front seat under the armrest. He then found a .25 semi-automatic weapon loaded with another magazine under the armrest. He testified that he did an inventory search of the car for his own safety and for purposes of the chain of custody, that the extra magazine was in plain view, and that he did not know the intentions of the other men standing with Dunbar or their connections with Dunbar. Tom Hall, a Leon County deputy, testified that he transported Dunbar to jail and assisted the jailor in an inventory of his personal property. Hall found handcuff keys in Dunbar's pocket which opened the handcuffs found on the victim. The State argues that the officers were authorized to arrest Dunbar without a warrant because he was a flight risk. See Tex. Code Crim. Proc. Ann. art. 14.04 (Vernon 1977). The State also argues that the search of the vehicle was authorized because the officers had probable cause to believe it contained instrumentalities of the crime and because the magazine was in plain view. The court found that the handcuff keys had been previously introduced into evidence without objection and that the warrantless search of the vehicle was lawful. Article 14.04 of the Code of Criminal Procedure provides: "Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace office may, without warrant, pursue and arrest the accused." Id. For a warrantless arrest to be justified under the article 14.04 exception, "there must be some evidence amounting to satisfactory proof, either related by a credible person to an officer or observed by the officer him/herself indicating that the defendant was about to escape so that there was no time to procure a warrant." Dejarnette v. State, 732 S.W.2d 346, 351 (Tex. Crim. App. 1987). As long as there is some evidence amounting to satisfactory proof that the defendant is about to escape and the circumstances are such that the officers do not have sufficient time to obtain a warrant, a warrantless arrest under article 14.04 will be sustained. Id. at 352-53. When Dunbar was arrested, the officers knew that he had allegedly kidnapped a woman and transported her from Baytown to outside of Centerville, that he was armed and driving a green Lincoln Continental, and that he was on parole for murder to Leon County although he had a Dallas address. Sheriff Wilson was notified around 6:30 p.m. of the possibility of Dunbar's being in Leon County. At 8:30 p.m., Wilson received the call from Gunnels, informing him that the victim had been picked up on FM 1511 and had identified Dunbar as her assailant. Wilson passed information to his deputies and dispatched them to FM 1511. There the deputies came upon a green Lincoln fitting the description. Dunbar identified himself when questioned. Rosier testified that, because Dunbar was an alleged kidnapper, he assumed he was a flight risk. Furthermore, Rosier did not know the intentions of the two other men standing with Dunbar. These facts represented satisfactory proof from credible persons that a felony had been committed and that Dunbar was a flight risk. Under the circumstances, the warrantless arrest was legal. We overrule point four. search of vehicle In point five, he complains of the failure to suppress evidence resulting from a search of his vehicle. Dunbar filed a motion to suppress the evidence obtained from his vehicle on the grounds that the law enforcement officers had no probable cause to search and no search warrants. Dunbar argues that he was not inside the vehicle when he was arrested and, because two of his friends were nearby who could have taken control of the vehicle, the vehicle should not have been seized. When a peace officer possesses probable cause to believe that a motor vehicle contains contraband, a valid search may be conducted in the part of the vehicle where the officer believes the contraband is located. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Christopher v. State, 639 S.W.2d 932, 935 (Tex. Crim. App. 1982), overruled in part on other grounds; Preston v. State, 700 S.W.2d 227, 230 (Tex. Crim. App. 1985); Miller v. State, 815
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S.W.2d 805, 809 (Tex. App. Austin 1991, pet. ref'd). On the facts presented here, the officers were within their authority to perform a warrantless search under the "automobile exception" to the warrant requirement. See id. The standard for reviewing the existence of probable cause is the "totality of the circumstances" test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Under the totality of the circumstances, the officers had probable cause to believe that the Continental and its contents were associated with criminal activity. See Amos v. State, 819 S.W.2d 156, 161 (Tex. Crim. App. 1991), cert. denied, U.S. , 112 S.Ct. 1959, 118 L.Ed.2d 561 (1992). The officers knew that a green Lincoln Continental was the vehicle involved in a kidnapping, that Dunbar was the suspect, that he was armed, and that the victim had been found on FM 1511. The officers came upon Dunbar and the Continental on FM 1511. Deputy Rosier looked into the car and saw a magazine to a semi-automatic weapon in plain view protruding from under the armrest in the front seat. The plain-view doctrine is an exception to the warrant requirement and permits an officer to seize what he sees in plain sight or open view if he is lawfully on the premises. Stoker v. State, 788 S.W.2d 1, 9 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 591, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990). The court did not err in failing to suppress the evidence obtained from the search of Dunbar's vehicle. We overrule point five. search of "shack" In point six, he complains of the court's failure to suppress evidence resulting from a warrantless, non-consensual search of the "shack." Four days after Dunbar's arrest, Leon County sheriff's deputies went to the shack. Deputy Rosier testified that the building did not appear to be occupied, that the front door was standing open, and that there was no electricity. Inside he found a .25 caliber bullet, panty hose, a slip, a bra, a belt, and an earring. The items of clothing were identified as belonging to the victim. Rosier saw no other evidence of the building being occupied no food, very little furniture, and no clothing other than that of the victim. Rosier did not see any "No Trespassing" signs. Dunbar took the stand outside the presence of the jury. He testified that his distant relatives owned the property. He also stated that his uncle, Roy Dunbar, was living in the house on July 15. Dunbar testified that he did not own the property or pay taxes on it, nor did he own a key to unlock the gate leading up to the house. To complain of the legality of the search and seizure, a defendant must show a reasonable expectation of privacy in the place searched. Goehring v. State, 627 S.W.2d 159, 164 (Tex. Crim. App. [Panel Op.] 1982); Martin v. State, 823 S.W.2d 726, 729 (Tex. App. Waco 1992, pet. ref'd). Dunbar did not have a key to the gate accessing the property, did not live on the property, and did not have any ownership interest in the property. The Court of Criminal Appeals found no reasonable expectation of privacy when a defendant abandoned the home he had been residing in with the deceased for two weeks before he murdered her. Villarreal v. State, 708 S.W.2d 845, 849 (Tex. Crim. App. 1986) (defendant abandoned the premises and owned no objects within the home); see also Martin, 823 S.W.2d at 729 (defendant failed to show proprietary or possessory interest in the searched property that was leased by his uncle). We overrule point six. lesser-included offense In point seven, Dunbar asserts that the court erred in failing to instruct the jury on the lesser-included offense of sexual assault. A defendant is entitled to an instruction on a lesser-included offense when, first, the lesser-included offense is within the proof necessary to establish the offense charged, and, second, some evidence exists that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). Dunbar argues that there is some evidence which tended to show "non-use or exhibition of a deadly weapon as well as evidence of a prior consensual relationship." He argues that his sister, Carolyn Mathis, testified that she had placed the .25 automatic in his car after he and the victim were at the "shack" property and that other relatives testified that they had seen the pair together and that the victim appeared to be present voluntarily and without coercion or duress. Dunbar's defense was that he and the victim had a consensual sexual relationship. His defense is similar to an alibi defense if the jury believed his defense of consent, there was no assault and the jury should have found him not guilty. See Conner v. State, 636 S.W.2d 214, 216 (Tex. App. Texarkana 1982, no pet.). The jury was charged that if it found Dunbar did not compel the victim to submit by exhibiting a deadly weapon or by threatening to use force or violence, it was to find him not guilty. The jury rejected Dunbar's consent defense.

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The court did not err in failing to instruct the jury on sexual assault. We overrule point seven. We affirm the judgement. BILL VANCE Justice

Before Chief Justice Thomas, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed August 31, 1993 Do not publish

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