Cuong Quoc Ly v. State , 2008 Tex. App. LEXIS 8980 ( 2008 )

CONCURRING OPINION

JOHN S. ANDERSON, Justice.

I concur with the majority opinion, but write separately to note the limited probative value of nervousness as demonstrating a consciousness of guilt.

The Court of Criminal Appeals has held that nervousness can be exhibited by those persons with nothing to hide as well as those who are guilt ridden. The Court’s position, based on human behavior, was articulated as follows:

We believe that in this day and time that when a citizen is suddenly facing an imminent confrontation with police officers for unknown reasons, most citizens with nothing to hide will nevertheless manifest an understandable nervousness in the presence of the officer. Not only the guilty, but the not guilty as well, will react much the same as the outside passenger did in this instance .... Thus, the appearance of being nervous is as consistent with a person being guilty of having committed or preparing to commit a criminal wrong as with a person not being guilty of anything more than being in the wrong place at the wrong time.

Glass v. State, 681 S.W.2d 599, 602 (Tex.Crim.App.1984).

Indeed, the Amarillo Court of Appeals has recently noted that a number of courts have observed that nervousness is of minimal probative value, given that many, if not most, individuals can become nervous or agitated when detained by police officers. Deschenes v. State, 258 S.W.3d 374, 383 n. 10 (Tex.App.-Amarillo 2008, pet. ref.) (citing Glass, 681 S.W.2d at 602). The fact that Trooper Chacon noticed appellant was nervous after his vehicle was stopped is not extraordinary. Nervousness in the presence of a police officer is neither a proxy for, nor a litmus test of consciousness of guilt. Therefore, it is illogical to conclude that nervousness per se reflects a person’s consciousness of guilt. Accordingly, this factor should not be accorded any weight in the court’s analysis of appellant’s affirmative links to the contraband.