Quentin Ray Toombs v. State ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00391-CR
QUENTIN RAY TOOMBS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 320th District Court
Potter County, Texas
Trial Court No. 63,577-D, Honorable Richard Dambold, Presiding
September 5, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Quentin Ray Tombs appeals his conviction for possessing a controlled substance
(cocaine) in an amount of one gram or more but less than four grams in a drug free
zone. He contends the evidence is insufficient to show that he was aware that he
possessed cocaine. We affirm the judgment.
We review the sufficiency of the evidence under the standard discussed in
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).
Next, the evidence shows that during the night of May 14, 2011, Officers D.W.
Griffin and Scott Acker were walking through the parking lot at Tatum’s nightclub in
Amarillo as part of their assignment to visit various bars because of problems with
underage drinking, fights, weapons, and drugs. Griffin observed two men in a vehicle
facing each other in what appeared to be a hand-to-hand transaction. As the officers
approached, appellant, who was in the driver’s seat, turned and looked over his left
shoulder. Thereafter, the officers testified to seeing him lean forward as if reaching
under the driver’s seat. The passenger made no like move, according to the officers.
Appellant then exited the vehicle. When he did, Griffin observed an open bottle
of alcohol, which circumstance evinced a violation of a municipal ordinance. Upon
being asked who he was, appellant initially misidentified himself but subsequently
corrected the falsehood. So too did he admit to having K2, a supplement to marijuana,
in his possession.
Upon appellant being arrested under an outstanding warrant, the officers
discovered cocaine under the driver's seat and over $2000 on appellant's person.
According to the passenger in the vehicle, the cocaine belonged to appellant.
The State was required to prove that appellant exercised care, custody, control
or management of the drugs and knew that the object was contraband. Poindexter v.
State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Appellant alleges that this test was
not satisfied because of alleged inconsistencies in the testimony. Those
inconsistencies include 1) Griffin stating in one report that appellant had looked over his
right shoulder instead of his left shoulder, although Griffin explained he had later
corrected that report, 2) Griffin saying that the passenger exited the vehicle around the
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same time as appellant, although Acker stated the passenger did not exit the vehicle
until several minutes later, and 3) one officer saying the amount of money discovered
on appellant was $2092 while the other officer said it was $2076. Appellant also points
to conflicting evidence from the passenger who testified that the drugs were not his and
testimony from appellant’s investigator who stated that the passenger told him he
grabbed the drugs from the console and threw them where they were found.
It is for the jury to resolve inconsistencies in the evidence, and we must defer to
its determinations. Franco v. State, 339 S.W.3d 793, 794 (Tex. App.–Amarillo 2011, no
pet.). And, while there may appear conflicting evidence of record, the testimony about
seeing appellant engage in a furtive gesture akin to placing something under the driver's
seat in which he sat, his attempt to misidentify himself, his possession of a rather large
sum of money and a marijuana supplement, and the passenger's statement that
appellant owned the drugs was more than some evidence permitting a rational trier of
fact to find beyond a reasonable doubt that appellant was in control of the cocaine and
knew it was contraband. See Pena v. State, 251 S.W.3d 601, 609-10 (Tex. App.–
Houston [1st Dist.] 2007, pet. ref’d) (finding the evidence of possession convincing and
persuasive when the defendant was seen tugging and pulling on the seat he was sitting
on in the vehicle and then lifting the seat and putting something under it, and cocaine
was found under his seat).
Accordingly, we overrule the issue and affirm the judgment.
Per Curiam
Do not publish.
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