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Amberson v. State

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

May 3, 2018

ALMA AMBERSON A/K/A 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 ON REHEARING

          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.[2]

         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 prosecutor to further lay the predicate.
Court: Well, unless there-were there any other sources used?
State: We can use the source now, Your Honor. We have the Drug Bible as well.
Court: Your response?
[Defense]: My response to that is if the State seeks to attempt to lay the predicate for a learned treatise that has to be through a recognized expert according to Rule of Evidence 803.18, Your Honor, which is the exception for a learned treatise. There's been no such offer or proffer or predicate for this witness's expertise.

         The trial court then excused the jury, and the State and Amberson took Hernandez on voir dire.

         1. Voir Dire Examination

         During voir dire examination, Hernandez testified that at the time of trial he was a detective in the narcotics/vice division.[3] According to Hernandez, the Texas Department of Public Safety (DPS) will not test drugs unless requested by the district attorney's office. Therefore, Hernandez relies on the website drugs.com and the Drug Bible to identify drugs. Hernandez characterized his training as "hands-on experience." According to Hernandez, he worked in the property room identifying and processing evidence for about six weeks. The State asked, "And prior to [working in the property room] did you have any other kind of training for drugs or narcotics?" to which Hernandez answered, "Not as in depth as I did now." When pressed by the State for additional training, Hernandez testified that "It's really difficult to remember every type of pill markings on our own. Sometimes we'll make cheat sheets, but it's still really hard to remember thousands of pills and the markings that come from it." Hernandez estimated that he used the Drug Bible "[m]aybe a 100 times" to identify drugs.

         On cross examination, Hernandez acknowledged that drugs.com contains a disclaimer and that it is not necessarily a reliable source. Specifically regarding drugs.com, Amberson asked and Hernandez answered:

Q. Okay. Have you ever looked at the-what are they called, Disclaimers and Limits that they include in Drugs. com?
A. Yes.
Q. Okay. And basically it says in there that this information is provided as is, and they're not responsible for any errors, problems or other limitations from the information that's in there, correct?
A. Yes.
Q. Okay. So they, themselves, are saying that it's not necessarily a reliable source, correct?
A. Yes.

         Hernandez also acknowledged that he has no medical training and no experience administering drugs. As for the Drug Bible, Hernandez testified that it is "strictly for law enforcement professional use only." But, when pressed on whether there is something that restricts the purchase of the Drug Bible from someone who is not in law enforcement, Hernandez answered, "I couldn't tell you if it-if there is or isn't."

         After questioning Hernandez, Amberson objected to his testimony and reliance on drugs.com and the Drug Bible. Amberson argued that Hernandez was not an expert because Hernandez acknowledged that anyone can look up a code and that he lacked any scientific or medical training that would enable him to identify a drug without resorting to a book. Therefore, according to Amberson, ...


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