Appellant was convicted of possession with intent to sell a counterfeit substance which the court of appeals reversed based on insufficient evidence. The statute requires the counterfeit substance either be labeled or identified as a controlled substance. The evidence at trial failed to show either.  

Appellant was found in possession of a cigar tube, which contained what a detective believed contained rocks of crack cocaine, however, the rocks tested negative for cocaine. Appellant told law-enforcement that he bought what he thought was crack cocaine but that the substance was not real cocaine.

In order for the State to prove a violation of the statute the State was required to present evidence of either some labelling, which contained some identifying mark, number, or likeness of a trademark of a manufacturer other than the person who in fact manufactured the product. Or the State must prove that the substance was falsely identified as a controlled substance that is listed in the Statute.

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