Jason Dumont Hensley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 11, 2025
• Docket: 01-24-00424-CR
• Status: Published

Opinion

Opinion issued March 11, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00424-CR ——————————— JASON DUMONT HENSLEY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court Galveston County, Texas Trial Court Case No. 22-CR-0261

MEMORANDUM OPINION

Jason Dumont Hensley was convicted by a jury of the manufacture or delivery

of a controlled substance in Penalty Group 2-A, namely MDMB-en-PINACA, a

compound with Indazole core, methoxy dimethyl oxybutanoate, Group A, and a carboxamide link, in an amount of 400 grams or more.1 After finding two

enhancement paragraphs true, the trial court sentenced Hensley to 40 years’

imprisonment.2 In his sole issue, Hensley argues that the trial court erred in

admitting expert testimony on his credibility.

We affirm.

Background

On September 23, 2021, Hitchcock Police Department Sergeant L. Garcia was

monitoring traffic for infractions when he observed Hensley run a traffic light at

Delaney Road and Highway 6 in Galveston County. After initiating a traffic stop,

Sergeant Garcia observed Hensley “leaning over . . . to his passenger’s side” and

“moving to the right,” and Sergeant Garcia did not know if Hensley “was searching

for something or grabbing anything.”

Sergeant Garcia approached Hensley’s car and Hensley told Sergeant Garcia

that he did not have his driver’s license with him, nor did he have insurance on the

car. Because the car was not insured, Sergeant Garcia told Hensley that he could not

have someone else pick up the car and it would have to be towed.

1 See TEX. HEALTH & SAFETY CODE § 481.113(a) (“[A] person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 2 or 2-A.”). 2 See id. § 481.113(e).

2 Meanwhile, Sergeant Garcia received information from dispatch that

Hensley’s driver’s license was not valid. Sergeant Garcia placed Hensley in custody

for “driving while license invalid” (DWLI). Sergeant Garcia searched Hensley and

found cash in both pockets. In his right pocket, Sergeant Garcia found a small

amount of loose cash, which Sergeant Garcia believed was Hensley’s personal

money. In Hensley’s left pocket, Sergeant Garcia found $812 in mostly $1 bills in

a plastic bag.

After Sergeant Garcia placed Hensley into custody, he inventoried Hensley’s

car because the car was going to be towed. Sergeant Garcia observed clothing on

the floorboard of the passenger side of the car, and underneath the clothing he saw

several large plastic bags containing what looked and smelled like marijuana.

According to Sergeant Garcia, he observed a “large amount” of this substance

separated into several different bags and it looked to be “more than the usable

amount for an individual person.” Sergeant Garcia also collected “several individual

baggies” from Hensley’s car, which, according to Sergeant Garcia, were “consistent

with breaking up and then selling to individual people.”

Based on the large quantity of substance, the way the substance was packaged,

the presence of individual baggies, and the amount of money and denomination of

the bills found in a separate plastic bag in Hensley’s pocket, Sergeant Garcia

believed Hensley was selling and distributing drugs.

3 Sergeant Garcia distinguished the substance found in Hensley’s car from CBD

or hemp, which is sold legally in stores. Based on Sergeant Garcia’s experience,

CBD or hemp is “not going to be in bags like this and it’s going to be labeled usually

in a jar . . . . Nothing like this.” And based on Sergeant Garcia’s experience, people

try to hide what they believe to be contraband or narcotics, but do not try to hide

things that are legal.

Sergeant Garcia collected the bags from Hensley’s car and field tested the

substance at the police department, which came back positive for synthetic

marijuana. Because the field test is “[m]ore of a presumption test,” the evidence was

later sent to the Department of Public Safety (DPS) crime lab for further testing.3

Testing at the crime lab confirmed that the substance obtained from Hensley’s car

was MDMB-en-PINACA, which is a Penalty Group 2A controlled substance

commonly known as a synthetic cannabinoid.4

3 Y. Ho, a Seized Drug Section supervisor for the DPS crime lab in Houston, testified at trial that only one bag was tested at the crime lab. The crime lab’s policy is to test “the highest penalty” and once the highest penalty is satisfied, the lab will not continue testing as a matter of efficiency. The highest penalty in this case would be a Penalty Group 2A compound over 400 grams. See TEX. HEALTH & SAFETY CODE § 481.113(e). The bag tested in this case weighed 722.44 grams. 4 Ho testified that synthetic cannabinoids do not contain tetrahydrocannabinol (THC). They are a class of compounds designed to interact with the same receptors as THCs, but they are not the same molecule as THC.

4 Admissibility of Evidence

In his sole issue, Hensley contends that the trial court abused its discretion in

overruling his objection to Sergeant Garcia’s testimony that Hensley’s statement to

the police was not credible. Hensley argues that this testimony invaded the province

of the jury by opining directly on the credibility of Hensley’s statement during an

investigation. He further argues that this error harmed his substantial rights,

requiring reversal. The State argues that this argument is not preserved because

Hensley’s objection below does not comport with his arguments on appeal. Even if

the argument is preserved, the State contends any error in the admission of this

testimony is harmless.

A. Standard of Review and Applicable Law

We review a trial court’s decision to admit evidence for an abuse of discretion.

Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). An abuse of

discretion occurs if the trial court’s decision falls outside the zone of reasonable

disagreement. Id. at 83.

Evidence showing that an accused was deceptive during an investigation is

relevant and admissible. See Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.—

Houston [14th Dist.] 1997, pet. dism’d). However, an expert is not permitted to give

a direct opinion on the truthfulness of a witness. See Yount v. State, 872 S.W.2d 706,

709–10 (Tex. Crim. App. 1993). This type of testimony is inadmissible “because it

5 does more than ‘assist the trier of fact to understand the evidence or to determine a

fact in issue;’ it decides an issue for the jury.” Id. at 709 (emphasis in original)

(quoting Duckett v. State, 797 S.W.2d 906, 910, 913 (Tex. Crim. App. 1990)).

Similarly, a witness’s expert opinion on the truthfulness of a criminal defendant

during an investigation is also inadmissible. See Brown v. State, 580 S.W.3d 755,

765 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d); Gonzalez v. State, 301

S.W.3d 393, 398 (Tex. App.—El Paso 2009, pet. ref’d) (concluding that testimony

of expert was impermissible opinion on truthfulness of defendant’s statement).

B. Analysis

During Sergeant Garcia’s testimony, defense counsel asked if Garcia

continued his investigation at the police station. Sergeant Garcia testified that it did,

and that Hensley was “Mirandized and then he had mentioned that the substance was

. . . some type of an aphrodisiac or something.” Sergeant Garcia also testified that

Hensley stated that he purchased the substance at a store. Sergeant Garcia testified

that Hensley provided a street name of the store’s location and a contact number, but

he did not follow up on this information.

The State then introduced a video recording of Sergeant Garcia’s interview of

Hensley once they arrived at the police station. After playing a portion of that video

for the jury, the following exchange occurred.

[State]: Sergeant Garcia, we heard someone ask [Hensley], “Is that CBD?” Did you hear that his response was, “No”?

6 [Garcia]: Yes, ma’am.

[State]: Starting State’s Exhibit 12—or State’s Exhibit 6 at the one minute and 23 second mark.

(State’s Exhibit No. 6 continues)

[State]: Sergeant Garcia, in this video we heard [Hensley] say that he breaks that down with those baggies, right?

[Garcia]: Yes, ma’am.

[State]: And he also mentioned that that money was from cutting grass, right?

[Garcia]: That’s correct.

[State]: You asked him if cutting grass, they pay you in ones. And what was his response? [Garcia]: “Sometimes [I] go to strip clubs.”

[State]: And earlier he told you that he was going to deposit that money, right?

[Garcia]: Yes, ma’am. [State]: But now, at this point the ones were for going to the strip club?

[Garcia]: Yes. [State]: Okay. What was your—what conclusion did you come to about [Hensley] saying, “I bought it at La Michi” (phn)— and he didn’t finish and gave you a street. What was your—what conclusion did you come to after he gave you that information? [Defense]: I’m going to object to the relevance of the officer’s conclusion. I think it improperly invades the purview of the jury. [State]: Judge, this witness has testified through his training and experience about how he came to the conclusion that 7 [Hensley] was intending to deliver this. Specifically [Hensley] saying he broke it down. So, the conclusion about what [Hensley] said is relevant in this case.

The Court: Objection is overruled.

[State]: What was your conclusion based on him telling you, “La Michi”—didn’t finish and saying, “Oh, I can give you a number. I don’t have a receipt.” What was your conclusion from that?

[Garcia]: He’s lying.

[State]: Okay. Why do you think that?

[Garcia]: Just based on—he said he broke it down. I believe he broke it down, but not for the purposes that he said. [State]: Is the reason that you didn’t continue with the investigation past him saying, “I could give you the phone number,” is it because you thought he was lying?

[State]: Is that why we also confirmed—did confirmatory testing by sending it off to DPS? [Garcia]: Absolutely.

Hensley argues that the above testimony, specifically Sergeant Garcia’s

testimony that Hensley was lying about purchasing the synthetic marijuana at a store,

was inadmissible opinion testimony and that the trial court abused its discretion in

admitting such testimony. Assuming without deciding that Hensley properly

objected to Sergeant Garcia’s testimony, and thus preserved error, and that the trial

court erroneously admitted Sergeant Garcia’s testimony, we conclude that any error

in admitting the testimony was harmless.

8 The erroneous admission of expert testimony is non-constitutional error. See

Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Accordingly, any

error must be disregarded unless it affected a defendant’s substantial rights. Barshaw

v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). A substantial right is affected

when the error had a substantial and injurious effect or influence in determining the

jury’s verdict. Coble, 330 S.W.3d at 280. If, after examining the record as a whole,

the appellate court determines that the improperly admitted evidence did not

influence the jury or had but a slight effect on its deliberations, such error is

harmless. Id.; Barshaw, 342 S.W.3d at 93.

In assessing the likelihood that the jury’s decision was improperly influenced,

the appellate court must consider everything in the record, including any testimony

or physical evidence admitted for the jury’s consideration, the nature of the evidence

supporting the verdict, and the character of the alleged error and how it might be

considered in connection with other evidence in the case. Barshaw, 342 S.W.3d at

94. The reviewing court may also consider the jury instruction given by the trial

judge, the state’s theory, defensive theories, closing arguments, voir dire, and

whether the state emphasized the error. Id. “Even in cases in which credibility is

paramount, Texas courts have found harmless error when the inadmissible expert

testimony was only a small portion of a large amount of evidence presented that the

jury could have considered in assessing the [witness’s] credibility.” Id. at 96.

9 Here, after consideration of the record as a whole, we conclude that the

admission of Sergeant Garcia’s testimony, that he believed Hensley was lying, was

harmless. Indeed, the evidence was more than sufficient to support the jury’s

verdict.

Hensley was convicted of the manufacture or delivery of a controlled

substance in Penalty Group 2-A, namely MDMB-en-PINACA, in an amount of 400

grams or more. See TEX. HEALTH & SAFETY CODE § 481.113(a), (e).5 When Hensley

was stopped by Sergeant Garcia, Hensley was the only person in the car and he stated

that the car was his. During the search of Hensley’s car, Sergeant Garcia discovered

multiple large bags of synthetic marijuana, along with several individual plastic

baggies. Hensley also possessed a large amount of cash, predominately $1 bills.

5 A person commits the offense of the manufacture or delivery of a controlled substance if he knowingly possesses a controlled substance with the intent to deliver it. TEX. HEALTH & SAFETY CODE § 481.113(a). “Possession” means actual care, custody, control, or management. Id. § 481.002(38). The element of knowing possession requires evidence that the accused possessed the substance knowingly rather than fortuitously. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). “Deliver” means to transfer, actually or constructively, a controlled substance to another. TEX. HEALTH & SAFETY CODE § 481.002(8). Intent to deliver a controlled substance can be proved by circumstantial evidence, including evidence that an accused possessed the contraband. Mack v. State, 859 S.W.2d 526, 528 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Factors courts have considered include: (1) the nature of the location at which the accused was arrested; (2) the quantity of contraband in the accused’s possession; (3) the manner of packaging; (4) the presence or lack thereof of drug paraphernalia (for either use or sale); (5) the accused’s possession of large amounts of cash; and (6) the accused’s status as a drug user. Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). 10 Sergeant Garcia testified that the amount of synthetic marijuana recovered, along

with the individual baggies, indicated that it was being packaged to be sold and was

not for individual use. Sergeant Garcia likewise testified that the large amount of

money, the denomination of the bills, and the separation into a separate plastic bag,

was, in his experience, related to selling drugs. The substance discovered in

Hensley’s car field tested positive for synthetic marijuana. And that substance was

later confirmed in lab testing to be MDMB-en-PINACA, also known as a synthetic

cannabinoid, a controlled substance in Penalty Group 2A, weighing 722.44 grams.

Although Hensley’s defensive theory at trial was that he purchased the

substance at a store and did not know the substance was illegal, there was ample

evidence that the jury could have considered in assessing Hensley’s credibility—

apart from Sergeant Garcia’s challenged testimony. For instance, Sergeant Garcia

testified that after he stopped Hensley’s car, he saw Hensley leaning over to the right,

i.e., passenger side of the car, which was where the drugs were ultimately discovered

underneath clothing on the floorboard. Based on Sergeant Garcia’s experience,

people try to hide what they believe to be contraband or narcotics, but do not try to

hide things that are legal.

Sergeant Garcia also distinguished the substance found in Hensley’s car from

CBD or hemp, legal substances, stating that CBD or hemp is “not going to be in bags

like this and it’s going to be labeled usually in a jar . . . . Nothing like this.” Sergeant

11 Garcia testified that the substance found in Hensley’s car did not have any labels.

And Hensley, in his interview at the police station, stated that the substance was not

CBD. Hensley also admitted that he divided the substance into the individual

baggies. All of the above testimony was introduced without objection.

Furthermore, the jury was presented with Hensley’s conflicting statements

about the $812 found in a plastic bag in his left pocket. During Hensley’s recorded

interview at the police station, Hensley stated that he received that money from

cutting grass. When asked what the money was for, Hensley initially stated that he

was going to deposit it at the bank. Later, he stated that the money—specifically the

$1 bills—was for the strip club.

Based on all of the above, Sergeant Garcia’s statement that he thought

Hensley was lying when he said he bought the synthetic marijuana at the store “was

only a small portion of a large amount of evidence presented that the jury could have

considered in assessing [Hensley’s] credibility.” See Barshaw, 342 S.W.3d at 96.

Finally, the State did not emphasize Sergeant Garcia’s testimony in closing,

instead focusing on the other evidence discussed above. Additionally, both the State

and defense counsel informed the jurors during voir dire that they are “the ones who

decide [witnesses’] credibility . . . and how much weight to give their testimony.”

And the jury was properly instructed that it was the exclusive judge of witness

credibility.

12 After hearing the properly admitted evidence at trial, including Sergeant

Garcia’s testimony and Hensley’s recorded interview, the jury reasonably could

have decided on its own that Hensley was not credible. See Brown, 580 S.W.3d at

766–67 (holding trial court’s error in admitting officer’s opinion testimony that

appellant was not credible did not affect appellant’s substantial rights because

evidence was legally sufficient to support jury’s finding of guilt, similar testimony

was allowed without objection, there was other evidence from which jury could

conclude officer did not find appellant credible, and jury was instructed that it was

exclusive judge of credibility).

Accordingly, we hold that, in the context of the entire record, the trial court’s

admission of Sergeant Garcia’s testimony regarding Hensley’s credibility did not

have a substantial and injurious effect or influence in determining the jury’s verdict.

See Barshaw, 342 S.W.3d at 96; Brown, 580 S.W.3d at 767.

We overrule Hensley’s sole issue.

13 Conclusion

We thus affirm the trial court’s judgment of conviction in all things.

Terry Adams Chief Justice

Panel consists of Chief Justice Adams and Justices Gunn and Guiney.

Do not publish. TEX. R. APP. P. 47.2(b).