Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 4 of Nueces County,
Justices Rodriguez, Longoria, and Hinojosa.
OPINION ON REHEARING
LETICIA HINOJOSA Justice
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. We reverse and remand.
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.
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.
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.
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
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,
[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
[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
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.
trial court then excused the jury, and the State and Amberson
took Hernandez on voir dire.
Voir Dire Examination
voir dire examination, Hernandez testified that at the time
of trial he was a detective in the narcotics/vice
division. 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.
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?
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?
Q. Okay. So they, themselves, are saying that it's not
necessarily a reliable source, correct?
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."
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, ...