Our office was told that the Fort Worth Court of Appeals recently released an opinion reversing a DWI conviction on the basis that the state failed to prove that the officer had reasonable suspicion to stop the defendant. Why? The state failed to meet the Kelly predicate for admission of the reading on the officer's radar gun by not showing the scientific reliability of the instrument. I have looked for the case and can't find it anywhere. Our office uses Lexis and either they haven't got in the database or my research skills are slipping. I also looked on the court's web site, but didn't find it. Is our informant dreaming--did the case not happen? (I won't name names, but the informant is an appellate attorney). Does anyone know of such a case recently released by a Texas appellate court?

Read Ochoa v. State 994 S.W.2d 283 and Icke v. State 36 S.W.3d 913. Both cases address Kelly issues and the radar gun. As I have pirated both of these citations from Richard Alpert's excellent caselaw update you may want to check with the grand master himself for anything more recent

The case is Joe Elbert Mills v. The State of Texas, No. 02-01-190-CR. It was issued on August 30, 2002. It's unpublished.

Thanks for the information on the radar gun case. I understand that Tarrant County is going to file a PDR.

I have not read the opinion. But, perhaps this case is a good example of one that although seemingly meeting the standards for publication under Rule 47.4 was better left unpublished. My question would be: why was it necessary to establish the scientific reliability of the radar gun in order for the officer to say he had specific and articulable facts to at least detain the vehicle? Did the lack of such evidence mean it was unreasonable for the officer to rely on the readout (which may simply have confirmed his own opinion based on visual observation of the vehicle)? I am all for tossing junk science, but isn't this a clear overreaction?

Mills was turned around on 12/6/02 on a Rule 50 opinion. FW now follows Maysonet v. State, No. 06-01-00024-CR. Still unpublished though.