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Amberson v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 18, 2018

ALMA AMBERSON A/KA ALMA SALDANA A/K/A ALMA RONJE, Appellant,
v.
THE STATE OF TEXAS, Appellee.

         On appeal from the County Court at Law No. 4 of Nueces County, Texas.

          Before Justices Rodriguez, Longoria, and Hinojosa Opinion by Justice Hinojosa

          OPINION

          LETICIA HINOJOSA JUSTICE.

         Appellant Alma Amberson a/k/a Alma Saldana a/k/a Alma Ronje (Amberson) appeals from a judgment convicting her for possession of less than 28 grams of a substance in penalty group 3, a Class A misdemeanor, see Tex. Health & Safety Code Ann. § 481.117(b) (West, Westlaw through 2017 1st C.S.), and sentencing her to thirty days' service in the SPURS work-release program. In three issues, which we construe as two, Amberson complains that (1) the trial court erred in admitting hearsay evidence of drug identity based upon drugs.com and the Drug Identification Bible 2014 to 2015 (Drug Bible) and that such error obligates us to render an acquittal; and (2) even if such evidence is admissible, the evidence of drug identity is legally insufficient to support the jury's verdict.[1] We reverse and remand.

         I. Background

         The criminal complaint charges Amberson with one count of driving while intoxicated and one count of intentionally or knowingly possessing a controlled substance, specifically clonazepam, in an amount of less than 28 grams. Amberson pleaded not guilty. The relevant testimony elicited during the guilt/innocence phase of the case came from Allen McCollum, a patrol officer with the Corpus Christi Police Department (CCPD) and Pablo Hernandez, a CCPD patrol officer at the time of Amberson's arrest, who had been promoted to detective in the narcotics/vice division three months before trial.

         A. McCollum

         McCollum testified that on the evening of March 27, 2014, he witnessed a vehicle driven by Amberson commit a rolling stop. McCollum followed Amberson's vehicle to the next intersection, where Amberson and McCollum came to a stop at a red light. When the traffic light turned green, McCollum observed that Amberson's vehicle "stayed there for an extended amount of time and then proceeded to cross through the intersection." McCollum initiated a traffic stop and radioed for an additional officer.

         Upon approaching the vehicle, McCollum noticed an open case of beer in the front and individual beer cans in the center console. McCollum recalled that Amberson's speech was somewhat slurred. After two other police officers arrived, McCollum asked Amberson to exit her vehicle so that he could administer field sobriety tests. McCollum determined that Amberson was driving while intoxicated based on her performance of the field sobriety tests, and he arrested her. Amberson refused to provide McCollum with a breath specimen.

         B. Hernandez

         Hernandez assisted McCollum by conducting an inventory of Amberson's vehicle. The State's questioning of Hernandez prompted several objections by defense:

Q. And tell me more about the inventory of the vehicle?
A. During the inventory of the vehicle there was a purse on the front passenger floorboard, and in fact, there was a pill bottle, and I looked in the pill bottle. You know, normally just to make sure it's the actual pills inside there, and there was two different types of pills.
Q. Okay. Can you describe the pills?
A. There was a couple of pills that were white, rectangular, and two that were just kind of circular and green.
Q. So what did you do after you discovered them?
A. With the markings on the pills I used the Drugs.com.
[Defense]: I'd object at this point, Your Honor, to anything that an outside reference source said is hearsay.
State: The officer used the source to identify the drugs, Your Honor.
[Defense]: Which is hearsay, Your Honor.
State: The officer used the source to identify the drug. Drugs.com is a recognizable site to identify drugs.
[Defense]: It's also hearsay, Your Honor.
Court: Well, it would be an exception if it's a learned treatise. Is there anything that recognizes Drugs.com as a learned treatise?
[Defense]: I have some information on that, Your Honor. If you'd like to conduct a bench conference, or if you'd like me to voir dire the witness, or if you'd like the ...

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