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 
Gamble v. State Page 2

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 3

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 4

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 5

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 6

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed June 26, 2014

Do Not Publish

[CRPM]