                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-13-00136-CR

MELVIN GAMBLE, JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                            From the 12th District Court
                               Walker County, Texas
                               Trial Court No. 25,986


                           MEMORANDUM OPINION

       Appellant Melvin Gamble, Jr. was charged by indictment with possession of a

controlled substance (four or more grams, but less than 200 grams, of cocaine) with

intent to deliver. The indictment also included two enhancement paragraphs alleging

two prior felony convictions. A jury found Gamble guilty, and the trial court assessed a

twenty-five year prison sentence. In his sole issue, Gamble asserts that the evidence is

legally insufficient to support the conviction.

       The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:

              In determining whether the evidence is legally sufficient to support
       a conviction, a reviewing court must consider all of the evidence in the
       light most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
       responsibility of the trier of fact fairly to resolve conflicts in the testimony,
       to weigh the evidence, and to draw reasonable inferences from basic facts
       to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
       directly and independently to the guilt of the appellant, as long as the
       cumulative force of all the incriminating circumstances is sufficient to
       support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

       Gamble’s sufficiency argument is that the evidence was insufficient to prove that

the quantity of the cocaine was more than four but less than 200 grams and that there

was a material variance between the indictment and the court’s charge because the

charge in the indictment was enlarged in the court’s charge with the statutory language

of “adulterants or dilutants.”

       We measure the sufficiency of the evidence by the elements of the offense as

defined in a hypothetically correct jury charge for the case. Cada v. State, 334 S.W.3d

766, 773 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997)). Such a charge would be one that accurately sets out the law, is authorized

by the indictment, does not unnecessarily increase the State's burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried. Id.; Gollihar v. State, 46 S.W.3d 243,

253 (Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240. The law as authorized by the

Gamble v. State                                                                            Page 2
indictment means the statutory elements of the charged offense as modified by the

charging instrument. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

          The indictment alleged that Gamble did “knowingly possess with intent to

deliver, a controlled substance, namely, Cocaine, in an amount of four grams or more

but less than 200 grams.”1 See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a, d) (West

2010). The evidence shows that the two bags of powdery substance that police found in

Gamble’s residence were tested and found to contain cocaine and weighed 67.49 grams

and 63.08 grams, respectively. The lab analyst testified that she performed a qualitative

analysis of the substances, not a quantitative analysis; she was not testifying that the

bags contained pure cocaine, and she could not say what percentage of the substance

was cocaine.

          Gamble thus argues that a rational jury could not have found the presence of

pure cocaine in an amount of greater than four grams but less than 200 grams without

an expansion of the indictment to include adulterants or dilutants in the court’s charge.

Cf. Erskine, 191 S.W.3d at 379 (appellant contending that State “had to prove that he

possessed ‘only cocaine’ in that amount”).

          The court’s charge instructed the jury that “cocaine is a controlled substance”

and that a “person commits an offense if the person knowingly possesses with intent to
1
    We have noted:

          Because section 481.002(5) now defines a “controlled substance” to be any listed
          substance “including” adulterants and dilutants and because the term expressly
          “includes the aggregate weight of any mixture, solution, or other substance containing a
          controlled substance,” it is arguably unnecessary to include allegations regarding
          “aggregate weight” or the presence of adulterants or dilutants in an indictment.

Erskine v. State, 191 S.W.3d 374, 379 n.4 (Tex. App.—Waco 2006, no pet.).

Gamble v. State                                                                                      Page 3
deliver a controlled substance of an amount of four grams or more but less than 200

grams.”     It also instructed that the State had to prove that the “cocaine was, by

aggregate weight, including adulterants or dilutants, four grams or more but less than

200 grams.” It defined adulterant or dilutant to mean “any material that increased the

bulk or quantity of a controlled substance, regardless of its effect on the chemical

activity of the controlled substance.”              See TEX. HEALTH & SAFETY CODE ANN. §

481.002(49) (West Supp. 2013); see also Erskine, 191 S.W.3d at 379-80 (stating that

hypothetically correct charge would have included these definitions).

        Thus, a hypothetically correct jury charge would have instructed the jury
        (with appropriate statutory definitions) to convict [defendant] if the jurors
        found beyond a reasonable doubt that he possessed with intent to deliver
        cocaine in the amount of “by aggregate weight, including adulterants or
        dilutants, four grams or more but less than 200 grams.” See TEX. HEALTH
        & SAFETY CODE ANN. § 481.112(d) (Vernon Supp. 2005).

Erskine, 191 S.W.3d at 380.

        The State responds that the case law2 relied on by Gamble was superseded by the

statutory amendment of the definition of “controlled substance” to include adulterants

or dilutants. See TEX. HEALTH & SAFETY CODE ANN. § 481.002(5) (West Supp. 2013)

(defining controlled substance to mean “a substance, including a drug, an adulterant,

and a dilutant, listed in Schedules I through V or Penalty Groups 1, 1-A, or 2 through 4.

The term includes the aggregate weight of any mixture, solution, or other substance

containing a controlled substance.”); see Act of May 26, 1997, 75th Leg., R.S., ch. 745, § 1,

1997 Tex. Gen. Laws 2411.

2
 E.g., Fisher v. State, 887 S.W.2d 49, 60 (Tex. Crim. App. 1994), overruled by Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997); Vera v. State, 800 S.W.2d 310, 311 (Tex. App.—Corpus Christi 1990, pet. ref’d).

Gamble v. State                                                                                       Page 4
       Thus, “it would be unnecessary to require the State to prove that each grain of a

powdery substance contains cocaine, ... .          The Legislature did away with the

requirement for this sort of hyper-technical analysis when it amended the definition of

‘adulterant or dilutant.’ ” Melton v. State, 120 S.W.3d 339, 342-44 (Tex. Crim. App. 2003).

And, the State asserts, no variance occurred because the court’s charge merely

incorporated the statutory definition of “controlled substance” into the application

paragraph. We agree. See Jackson v. State, 94 S.W.3d 46, 50 (Tex. App.—Tyler 2002, pet.

ref’d) (“The trial court correctly charged the jury, in language that tracked the statute, to

consider the total weight of the seized material, which includes the weight of the

adulterants and dilutants, together with the cocaine. Based upon our interpretation of

‘controlled substance,’ no variance existed between the indictment and the jury

charge.”).

       Also, we rejected a similar argument in Erskine, as have our sister courts. See

Erskine, 191 S.W.3d at 380; Jackson, 94 S.W.3d at 49-50; see also Washington v. State, No.

10-08-00230-CV, 2010 WL 2869772, at *2 (Tex. App.—Waco July 21, 2010, pet. ref’d)

(mem. op., not designated for publication) (“the State was not required to prove the

purity of the substance”); Lilly v. State, 119 S.W.3d 900, 904-05 (Tex. App.—Eastland

2003, pet. ref’d). The evidence was sufficient. See Erskine, 191 S.W.3d at 380; Jackson, 94

S.W.3d at 49-50. We overrule Gamble’s sole issue and affirm the trial court’s judgment.




                                                  REX D. DAVIS
                                                  Justice

Gamble v. State                                                                        Page 5
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 26, 2014
Do Not Publish
[CRPM]




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