Alma AMBERSON a/k/a Alma Saldana a/k/a Alma Ronje, Appellant, v. The STATE of Texas, Appellee.

NUMBER 13-16-00306-CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed May 3, 2018 Rehearing Denied May 3, 2018

Nathan Burkett, Attorney at Law, P.O. Box 3189, Corpus Christi, TX 78463, for Appellant.

Mark A. Gonzalez, Nueces County District Attorney, Adolfo Aguilo, Jr., Assistant District Attorney, 901 Leopard, Room 206, Corpus Christi, TX 78401, for Appellee.

Before Justices Rodriguez, Longoria, and Hinojosa

**OPINION ON REHEARING**

Opinion by Justice Hinojosa

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 *324amount 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?

> *325[ 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, Hernandez could not rely on a learned treatise, assuming *326drugs.com and the Drug Bible constituted such.

The trial court overruled Amberson's objections.

**2. Testimony Before the Jury**

When the jury returned to the courtroom, Hernandez testified that in his eight and a half years as a police officer he had "come in contact with all types of drugs." While examining Hernandez, the State offered and the trial court admitted the pill bottle that Hernandez found during his inventory. The patient referenced on the pill bottle's label was "Alma Saldana," and the prescription was for hydrocodoneacetaminophen. Hernandez stated that he has used the Drug Bible "[m]aybe 20, 30 times" to identify drugs and that, over the course of his career, he has identified drugs over a 100 times. By comparing each pill's alpha and numeric markings, color, and shape with the information in the Drug Bible and on drugs.com, Hernandez testified that the pill bottle contained hydrocodone and two clonazepam pills.

On cross examination, Hernandez acknowledged that drugs.com disclaimed any errors or misinformation. Hernandez recounted that DPS lab policy is that if a police department can identify a drug using two independent sources, then, unless authorized by the district attorney, it will not test a sample. Generally, DPS, according to Hernandez, will test felony amounts of cocaine, methamphetamine, heroin, crack cocaine, THC oils, wax, and synthetic marijuana. Hernandez acknowledged that in some circumstances there can be counterfeit pills and that the CCPD does not employ an identification technician.

**C. Verdict and Judgment**

The jury was charged with one count of driving or operating a motor vehicle in a public place while intoxicated and one count of possession of a controlled substance, namely clonazepam, in an amount of less than 28 grams. It returned a not guilty finding as to the first count and a guilty finding as to the second count. Amberson elected to have the trial court assess punishment. The trial court signed a judgment of conviction as to the possession of a controlled substance count and sentenced Amberson to thirty-days' service in the SPURS work-release program. This appeal followed.

**II. LEGAL SUFFICIENCY**

In Amberson's second issue, she contends that even if it was not error for the trial court to allow Hernandez to testify as to the steps he took to identify the pills, the evidence of drug identity is legally insufficient to support the jury's verdict. In an unpublished opinion, we have already rejected a substantially similar argument. In *Pineda v. State* , the appellant argued that the evidence was legally insufficient to support a finding that he possessed hydrocodone. *See* No. 13-13-00574-CR, 2015 WL 5311237 at *4 (Tex. App.-Corpus Christi Sep. 10, 2015, no pet.) (mem. op., not designated for publication). We recounted that the drug-evidence custodian determined the chemical composition and weight of the pill by using drugs.com and the steps that the custodian took in making the determination. *Id.* at *4-5. The custodian's testimony differed from Hernandez's testimony in that he testified that in six years of using drugs.com the website had not misidentified a drug and the custodian found it to be a reliable source. *Id.* at *5. We concluded that the jury was free to judge the custodian's credibility as well as the strength of the evidence and overruled the appellant's legal sufficiency challenge. The same is true in this case.

Amberson's second issue is overruled.

*327**III. ADMISSIBILITY OF EVIDENCE**

In Amberson's first issue, she asserts that the trial court erred in admitting hearsay evidence of drug identity based upon drugs.com and the Drug Bible. Amberson further argues that Hernandez was not qualified as an expert, and therefore, he could not rely on the learned treatise exception. The State responds by arguing that: (1) drugs.com and the Drug Bible do not constitute hearsay; (2) Hernandez's description of the steps he took to identify the pills constitutes lay witness testimony; and (3) even if the statements in drugs.com and the Drug Bible constitute hearsay, they fall within exceptions to the hearsay rule regarding (1) learned treatises and (2) market reports and similar commercial publications. *See* TEX. R. EVID. 803(17), (18). The State's first and second responsive arguments present threshold questions that we must address before returning to Hernandez's qualifications.

**A. Standard of Review**

An appellate court reviewing a trial court's ruling on the admissibility of evidence must utilize an abuse-of-discretion standard of review. *Weatherred v. State* , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) ; *Prystash v. State* , 3 S.W.3d 522, 527 (Tex. Crim. App. 1999). In other words, the appellate court must uphold the trial court's ruling if it was within the zone of reasonable disagreement. *Weatherred* , 15 S.W.3d at 542 ; *Montgomery v. State* , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In addition, the appellate court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made. *Hoyos v. State* , 982 S.W.2d 419, 422 (Tex. Crim. App. 1998) ; *Hardesty v. State* , 667 S.W.2d 130, 133 n. 6 (Tex. Crim. App. 1984).

The abuse-of-discretion standard of review also applies to the admissibility of expert testimony. *Lagrone v. State* , 942 S.W.2d 602, 616 (Tex. Crim. App. 1997). Among the nonexclusive factors that a trial court could consider in determining scientific reliability is the qualifications of the testifying expert. *See**Kelly v. State* , 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).

"Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible in spite of its hearsay character." *Taylor v. State* , 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008) ; *see also**Estrada v. State* , 313 S.W.3d 274, 313 (Tex. Crim. App. 2010) ("[I]t is the responsibility of the proponent to inform the court of the existence of an exception to the hearsay rule.").

**B. Hernandez's Sources and Hearsay**

From Amberson's objection in the trial court, she characterized drugs.com and the Drug Bible as hearsay and possibly a learned treatise. Therefore, a threshold matter is determining whether Amberson's characterization holds true. If Amberson was correct, the burden then shifted to the State to establish an applicable exception. *See**Taylor* , 268 S.W.3d at 578-79.

The State opposes Amberson's characterization on the ground that in order to constitute hearsay, the statement must be uttered by a person, and as support, it references Texas Rule of Evidence 801(a), which provides that a "statement" means "a person's oral or written verbal expression, or nonverbal conduct that a person intended as a substitute for verbal expression." TEX. R. EVID. 801(a). The State also references *Davis v. State* . No. 05-12-00021-CR, 2013 WL 3294716 at *2 (Tex. App.-Dallas Jun. 26, 2013, pet. ref'd) (op., not *328designated for publication). In *Davis* , the trial court permitted a forensic fingerprint expert to testify that she received the fingerprint and conducted computer analysis to find potential subjects for comparison. *Id.* at *1. Over the appellant's hearsay objection, the forensic fingerprint expert stated that the computer system linked the fingerprint to appellant. *Id.* On appeal, the appellant argued that the computer's identification of appellant as the source of the fingerprint amounted to hearsay testimony. *Id.* at *2. In overruling the appellant's issue, the court wrote:

> ... Here, [the forensic fingerprint expert] received the analysis from a computer, not a person. By definition, therefore, the computer was not a declarant and the information was not hearsay.

> This is not a situation where the information provided by the computer was merely feedback of computer-stored data, which would be hearsay. The information reflected on the computer readout is the result of the computer's internal operations. Because the computer in this case was not a declarant, the data it generated was not a statement and could not be hearsay.

*Id.* (citation omitted).

During the State's voir dire examination of Hernandez, he testified:

> Q. And can you go over specifically what training you have had with identifying drugs?

> A. Yes. If we come across any kind of pills the markings on them go through Drugs.com, identify them through there. They show you a picture of the exact pill that you're looking at, and it tells you what it is right there, how many milligrams, the dosage it is. And also, if you wanted to confirm with it, the Drug Bible right here, it tells you the exact same thing with the markings on it.

The process described by Hernandez is "a situation where the information provided by the computer was merely feedback of computer-stored data, which would be hearsay." *See id.* In other words, Hernandez described a situation where drugs.com and the Drug Bible merely returned computer-stored data.

We conclude, based on the record before us, that the information relied on by Hernandez constitutes hearsay. *Id.* Therefore, its admissibility depends on whether Hernandez's testimony was either properly lay or expert opinion testimony.

**C. Lay Witness Testimony**

The State contends that Hernandez's description of the steps he took to identify the pills constitutes proper lay witness testimony. As support, the State references *State v. Youmans* , an opinion from the Idaho Court of Appeals. *See*161 Idaho 4, 383 P.3d 142, 146 (Idaho Ct. App. 2016, no pet.). The holding in *Youmans* , quoted by the State in its brief, provides:

> We agree that Det. Paporello testified as a lay witness. He described the steps he personally undertook to identify the loose pills found in Youmans' purse, which included utilizing an unnamed online database. Further, Det. Paporello testified that the pills were hydrocodone, the controlled substance with which Youmans was charged with possessing, and that the manner in which he identified the pills was consistent with the practice of other officers. Finally, using such a database does not require scientific, technical, or specialized knowledge. Det. Paporello did not speak to the chemical nature of the controlled substance; rather, only to its classification, which could be determined by comparison of observable characteristics, including shape, color, and numeric identifiers. The probative value of this testimony *329would have been greater if the database was named and there was consistency in the online sources used by officers in the field to identify prescription pills. Nevertheless, the evidence carries probative value that the online database used was adequate to specifically identify what type of prescription pills were found in Youmans' purse.

*Id.* With all due respect to the Idaho Court of Appeals, we find that its holding regarding lay testimony does not comport with the Texas Court of Criminal Appeals' interpretation of Texas Rule of Evidence 701, which provides, "If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; and (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue." TEX. R. EVID. 701.

In *Osbourn v. State* , the Texas Court of Criminal Appeals wrote:

> Both lay and expert witnesses can offer opinion testimony. Rule 701 covers the more traditional witness-one who "witnessed" or participated in the events about which he or she is testifying-while Rule 702 allows for a witness who was brought in as an expert to testify. A witness can testify in the form of an opinion under Rule 701 if the opinions or inferences are (a) rationally based on his or her perceptions and (b) helpful to the clear understanding of the testimony or the determination of a fact in issue. *Fairow v. State* , 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). Perceptions refer to a witness's interpretation of information acquired through his or her own senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted). Since Rule 701 requires the testimony to be based on the witness's perception, it is necessary that the witness personally observed or experienced the events about which he or she is testifying. *Id.* at 898. Thus, the witness's testimony can include opinions, beliefs, or inferences as long as they are drawn from his or her own experiences or observations. This also incorporates the personal knowledge requirement of Rule 602 which states that a witness may not testify to a matter unless he or she has personal knowledge of the matter. *Bigby v. State* , 892 S.W.2d 864, 889 (Tex. Crim. App. 1994). There is, however, a provision in Rule 602 for opinion testimony by expert witnesses which allows a person testifying as an expert under Rule 703 to base his or her opinion on facts and data that are of a type reasonably relied upon by experts in the field. TEX. R. CRIM. EVID. 703. Thus, expert testimony serves the purpose of allowing certain types of relevant, helpful testimony by a witness who does not possess personal knowledge of the events about which he or she is testifying.

92 S.W.3d 531, 535-36 (Tex. Crim. App. 2002). *Osbourn* recognizes a lay witness's temporal proximity to the occurrence in question and an expert's relative removal from the occurrence in question.

The State would have us read Hernandez's visual observation of the pills, the information on drugs.com and in the Drug Bible, and the reconciliation of the observation and the information as part of Hernandez's "perception." This proves to be too much. We believe that the reconciliation prong in this case is the province of an expert.

Our belief is further supported by the rules governing the personal knowledge of a witness. In *Sterling v. State* , the appellant complained that a pharmacist identified pills as valium based on their appearance and that the State failed to introduce *330chemical analysis of the drug. 791 S.W.2d 274, 277 (Tex. App.-Corpus Christi 1990, no pet.) (en banc). Relying on Texas Rule of Evidence 602, which provides that a witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter, *see* TEX. R. EVID. 602, we rejected the appellant's complaint. *See**Sterling* , 791 S.W.2d at 277. Specifically, we held that a person who is familiar with a substance may identify it. *Id.*

In this case, Hernandez was not able to identify clonazepam from personal knowledge as the pharmacist did in *Sterling* . Instead, he relied on drugs.com and the Drug Bible. However, "helpful testimony by a witness who does not possess personal knowledge of the events about which he or she is testifying" is expert testimony. *Osbourn* , 92 S.W.3d at 536. Therefore, we must determine whether Hernandez was indeed an expert.

**D. Hernandez as an Expert and the Learned Treatise Exception**

The thrust of Amberson's argument in the trial court was that Hernandez was not qualified as an expert, and therefore, he could not rely on the learned treatise exception. Texas Rule of Evidence 803(18) provides:

> The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

> ...

> (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

> (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

> (B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.

> If admitted, the statement may be read into evidence but not received as an exhibit.

TEX. R. EVID. 803(18). Because we have already determined that drugs.com and the Drug Bible, on this record, constitute hearsay and that Hernandez lacked the personal knowledge and contemporaneous perception to constitute lay witness testimony, it was incumbent on the State to establish an applicable exception to the hearsay rule. *See**Taylor* , 268 S.W.3d at 578-79.

Texas Rule of Evidence 702 provides:

> A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

TEX. R. EVID. 702. The State asserts, without any record reference, that "Hernandez testified at length about all of his experience and training with drugs as a patrol officer and a detective." From our review of the record, Hernandez worked in the property room for six weeks, he would "make cheat sheets" of pills because "it's still really hard to remember thousands of pills on our own", and he used the Drug Bible "[m]aybe a 100 times" to identify drugs.

Hernandez failed to explain what training he received in pill identification. Amberson argues that Hernandez's opinion "was just a direct recital of hearsay material" and that it "required no specialized knowledge." Indeed, the State's position *331that Hernandez provided merely a lay opinion undermines its position that Hernandez is also an expert at identifying pills. An "expert's scientific, technical, or other specialized knowledge" must "help the trier of fact to understand the evidence or to determine a fact in issue." *See id.* We conclude that because Hernandez is not an expert, he could not sponsor excerpts from either drugs.com or the Drug Bible. *See* TEX. R. EVID. 803(18), 702.

**E. Market Reports and Commercial Publications**

The State also contends that drugs.com and the Drug Bible fall under the exception to the hearsay rule regarding "[m]arket quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations." TEX. R. EVID. 803(17).

**1. Preservation**

Initially, we declined to address the State's alternative theory because it was incumbent on the State to apprise the trial court of all hearsay exceptions, and it did not apprise the trial court of rule 803(17). *See**Taylor* , 268 S.W.3d at 578-79 ("Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible in spite of its hearsay character."). On rehearing, the State argues:

> As the prevailing party, the State was not obligated to offer every possible justification for admission to be entitled to assert a new legal basis later on direct appeal. *See**Hailey v. State* , 87 S.W.3d 118, 121[-]22 (Tex. Crim. App. 2002) ("ordinary notions of procedural default" generally do not prohibit a reviewing court from affirming a trial court's decision on a legal theory not presented to the trial court by the prevailing party). This Court is therefore wrong in stating that the ground is un-preserved (i.e., procedurally defaulted). *Amberson v. State* , --- S.W.3d ---- [---- n.3] No. 13-16-00306-CR, 2018 WL 460806, at *7 n.3 (Tex. App.-Corpus Christi 2018). It is of no consequence that the State had the burden of offering a basis for admissibility in the trial court. *See* , *e.g.* , *Alford v. State* , 400 S.W.3d 924, 926-30 (Tex. Crim. App. 2013) (court of appeals erred to bypass the State's alternative argument in support of affirming the trial court's denial of a motion to suppress-upon which the State bore the burden to prove a warrant exception-that was not presented to the trial court because the State was the prevailing party).

Neither *Hailey* , 87 S.W.3d at 121-22, nor *Alford* , 400 S.W.3d at 926-30, squarely address the intersection of what the State terms "procedural default" and the rule articulated in *Taylor.See*268 S.W.3d at 578-79 (providing that the proponent of hearsay is burdened with establishing an applicable exception when his opponent makes a proper objection).

*State v. Esparza* is instructive. *See*413 S.W.3d 81, 90 (Tex. Crim. App. 2013). In *Esparza* , a defendant arrested for driving while intoxicated moved to suppress the results of a breath specimen on the grounds that it was illegally obtained. *Id.* at 82. The trial court rejected the defendant's illegality contentions, but nonetheless granted the motion to suppress on the explicit basis that "[t]he State failed to present any testimony regarding the breath test results[.]" *Id.* On appeal and in an attempt to uphold the suppression, the defendant-turned appellee asserted, for the first time, that the State failed to establish the scientific reliability of results of the breath specimen under Texas Rule of Evidence 702. *Id.* at 85. The Eighth Court of Appeals rejected the appellee's *332contention and reversed the trial court's ruling. *Id.* at 82. In affirming the intermediate appellate court's judgment, the Texas Court of Criminal Appeals explained:

> Sometimes appellants can also be deprived of an adequate opportunity "to develop a complete factual record" with respect to an alternative legal theory, and it would be incongruous with our justification in *Hailey* to treat a purported alternative legal theory as truly law "applicable to the case" under those circumstances. If the alternative legal theory that an appellee proffers for the first time on appeal as a basis to affirm a trial court's otherwise faulty judgment turns upon the production of predicate facts by the appellant that he was never fairly called upon to adduce during the course of the proceedings below, then application of the *Calloway* [*v. State,*743 S.W.2d 645 (Tex.Crim.App.1988) ] rule to affirm that otherwise faulty judgment works a manifest injustice. An appellee's alternative legal theory should not be considered "law applicable to the case" under these circumstances, and this is so regardless of whether the appellee was the defendant or the State at the trial court level.

*Id.* at 90. In other words, a "theory of law" is applicable to the case if the theory was presented at trial in such a manner that the appellant was fairly called upon to present evidence on the issue. *See**State v. Copeland* , 501 S.W.3d 610, 613 (Tex. Crim. App. 2016).

The evidentiary burdens in this case are like those described in *Esparza* , and Amberson would arguably be prejudiced by relying on the market report exception as a basis for affirmance on appeal. The proponents of hearsay or scientific evidence need not initially articulate an exception or lay a predicate, respectively, but must do so when confronted by a proper objection. *Compare**Taylor* , 268 S.W.3d at 578-79 ("Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that an exception applies that would make the evidence admissible in spite of its hearsay character.") *with**Esparza* , 413 S.W.3d at 87 ("At trial, the proponent of scientific evidence is not typically called upon to establish its empirical reliability as a predicate to admission unless and until the opponent of that evidence raises an objection under Rule 702.").

Returning to the State's brief, it makes two arguments in support of its alternative theory. First, the State argues:

> Though Appellant contends that Drugs.com does not constitute a reliable authority due to a disclaimer pertaining to the clinical information contained in the site, Appellant's Brief at 6, law enforcement officers that use the site are not dealing with patients or attempting to diagnose symptoms. Instead, the law enforcement officers that use the site are simply attempting to identify substances based on their code imprints and appearance.

This argument suggests that the information on drugs.com may be inadequate for treatment but adequate to support a conviction and the incarceration that may potentially follow. Second, the State implies that the clause "by persons in particular occupations" of rule 803(17) is rooted in the record. Specifically, the State argues:

> Moreover, to establish the foundation for Rule 803(17), it need only be shown that the sources are generally relied upon by the persons in the particular occupation, i.e., law enforcement officers. [2 Steven Goode & Olin Guy Wellborn III, TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE § 803.22, at 300 (4th ed. 2016) ]. And as Appellant notes in *333h[er] brief, Hernandez testified that the Drug Identification Bible "is for law enforcement use only." Appellant's Brief at 6.[4]

Part of Amberson's voir dire examination of Officer Hernandez, which she references in support of her reliability argument, provides:

> Q. Okay. Anyone can get that book?

> A. Well, this one is strictly for law enforcement, professional use only.

> Q. Okay. Is there something that restricts the purchase of that book from someone who's not an officer-in law enforcement?

> A. I couldn't tell you if it-if there is or isn't.

> Q. Okay. You have no knowledge of that?

> A. No.

> Q. Okay. And so anyone who is looking at a pill would be able to attempt to look up a code and see what that reference material thought it was-

> A. Yes.

> Q. -correct? Okay. So that wouldn't be anything that necessarily would need any specialized training or skill for it, correct?

> A. No.

The "theory" on rule 803(17) espoused by the State in its brief was not presented at trial in such a manner that Amberson was fairly called upon to present evidence on the issue. *See**Copeland* , 501 S.W.3d at 613 ; *Esparza* , 413 S.W.3d at 90. The record contains no reference to rule 803(17) nor to the terms "market quotations, lists, directories, or other compilations," *see* TEX. R. EVID. 803(17), much like the record in *Esparza* contained no reference to rule 702 nor to the phrase "scientific reliability." And, we would stretch Officer's Hernandez's testimony too far if we concluded that his belief that the Drug Bible was "strictly for law enforcement, professional use only" presented to the trial court or Amberson the rule 803(17) hearsay exception. Amberson's reliability argument, presented on page six of her brief, was before the trial court in relation to the rule 803(18) hearsay exception regarding a learned treatise, not the rule 803(17) hearsay exception. Lastly, Amberson did not have an opportunity to present responsive arguments and evidence regarding the State's implicit contention that the information on drugs.com may be inadequate for treatment but adequate to support a conviction and the incarceration that may potentially follow as it related to the rule 803(17) exception. Based on the foregoing, we cannot say that our initial declination was in error.

**2. Merits**

Even if we addressed the merits of the State's alternative theory, the record is still lacking. One court has observed:

> As with other hearsay exceptions, the admissibility of market reports and commercial publications under Rule 803(17) is predicated on the two factors of necessity and reliability. Necessity lies in the fact that if this evidence is to be obtained, it must come from the compilation, since the task of finding every person who had a hand in making the report would be impossible. Reliability is assured because the compilers know that their work will be consulted; if it is inaccurate, the public or the trade will cease consulting their product.

*334*U.S. v. Woods* , 321 F.3d 361, 364 (3rd Cir. 2003) (quoting 5 WEINSTEIN'S FEDERAL EVIDENCE § 803.19[1] (Matthew Bender 2002) ); *see also**Gigliobianco v. State* , 210 S.W.3d 637, 640-41 (Tex. Crim. App. 2006) (referencing Weinstein's Federal Evidence as a treatise and to explain in general terms the purpose and requirements of evidentiary rule 403).

The State failed to present any persuasive evidence on why it was necessary for Officer Hernandez to reference drugs.com. His testimony that he would "make cheat sheets" of pills because "it's still really hard to remember thousands of pills on our own" speaks to his lack of personal knowledge, not necessity. *Cf.**Sterling* , 791 S.W.2d at 277 (holding that a person who is familiar with a substance, such as a pharmacist, may identify it). Furthermore, Officer Hernandez's testimony that DPS will not test drugs unless requested by the district attorney's office speaks to the State's unwillingness to invest resources in the case. If this testimony satisfies the necessity prong, a party may establish necessity simply by refusing to invest resources into developing evidence that may be admissible through recognized means. *See id.*

The State also failed to present any persuasive evidence on the reliability of drugs.com. Hernandez acknowledged that drugs.com disclaimed that there could be errors or misinformation on it. We respectfully decline the State's suggestion that the information on drugs.com may be inadequate for treatment but adequate to support a conviction and the incarceration that may potentially follow. Additionally, we respectfully reject the State's contention that Hernandez's testimony that the Drug Bible "is for law enforcement use only" establishes that law enforcement is one of the "particular occupations" envisioned in rule 803(17). *See* TEX. R. EVID. 803(17). If that were the case, then any internet database or publication would be admissible, so long as a law enforcement official testifies that the database is used and relied on generally by law enforcement officials. *See**People v. Hard* , 342 P.3d 572, 578 (Colo. App. 2014, no writ) ; *see also**Woods* , 321 F.3d at 364 (noting that the district court found-and the defendant did not object to-FBI agent's testimony that the National Insurance Crime Bureau database is accepted and relied upon by those in the private industry *and* by law enforcement agencies).

**F. Disposition**

Amberson's first issue is sustained.

**G. Harm Analysis**

The violation of an evidentiary rule that results in the erroneous admission of evidence constitutes nonconstitutional error. *See* TEX. R. APP. P. 44.2(b) ; *Geuder v. State* , 142 S.W.3d 372, 376 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd). Under the applicable standard for nonconstitutional error, we must disregard the trial court's error, if any, unless we determine it affected a defendant's substantial rights. TEX. R. APP. P. 44.2(b). A defendant's substantial rights are affected when the error has a substantial and injurious effect or influence on the jury's verdict. *Id.* If the error had no or only a slight influence on the verdict, the error is harmless. *Id.* We should not overturn a criminal conviction for nonconstitutional error if we, "*after examining the record as a whole* , ha[ve] fair assurance that the error did not influence the jury, or influenced the jury only slightly." *Barshaw v. State* , 342 S.W.3d 91, 93 (Tex. Crim. App. 2011) (quoting *Schutz v. State* , 63 S.W.3d 442, 444 (Tex. Crim. App. 2001) ).

The only evidence identifying the clonazepam came from Hernandez and his *335reliance on drugs.com and the Drug Bible. On this record, we cannot say that we have a fair assurance that the error did not influence the jury, or influenced the jury only slightly. Accordingly, we find the error harmful.

**IV. CONCLUSION**

The judgment is reversed, and the case is remanded for further proceedings.

1

Amberson also purports to challenge the factual sufficiency of the evidence. However, the Texas Court of Criminal Appeals has abolished factual sufficiency review. *See**Howard v. State* , 333 S.W.3d 137, 138 (Tex. Crim. App. 2011) (citing *Brooks v. State* , 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.) ). Amberson's factual sufficiency argument essentially challenges the legal sufficiency of the evidence. Accordingly, we construe it as a legal sufficiency challenge.

2

The State filed a motion for rehearing. *See* Tex. R. App. P. 49.1. We requested and received a response from Amberson. The State did not file a reply. After due consideration, we withdraw our previous opinion and judgment and substitute the following opinion and accompanying judgment. The State's motion for rehearing is denied.

3

Earlier before the jury, Hernandez testified that at the time of trial he had been in the narcotics/vice division for three months where he would investigate reports of narcotic activity that came through patrol officers and initiate proactive narcotic cases.

4

Notably, page six of Amberson's brief is an argument section titled, "Drugs.com and the Drug Bible are Not Reliable Authority."