Kelly, Lovell Jr

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 2022
• Docket: WR-93,330-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,330-01 and WR-93,330-02

EX PARTE LOVELL JUNIOR KELLY, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NO. 1519288-A & 1519289-A IN THE 182ND DISTRICT COURT FROM HARRIS COUNTY

Per curiam. ORDER

Applicant was convicted of aggravated assault with a deadly weapon and felon in possession

of a weapon and sentenced to seventeen years’ imprisonment in each cause. The Fourteenth Court

of Appeals affirmed his convictions. Kelly v. State, No. 14-18-00104-CR & 14-18-00105-CR (Tex.

App.—Houston [14th Dist.] March 7, 2019)(not designated for publication). Applicant filed these

applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded

them to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends that trial counsel was ineffective because he failed to challenge the

conviction on double jeopardy grounds, he failed to challenge an enhancement, and he changed the

punishment election without Applicant’s consent. Applicant also alleges that appellate counsel

failed to raise a viable appellate issue and failed to inform him of his right to file a pro se petition 2

for discretionary review. Applicant has alleged facts that, if true, might entitle him to relief.

Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The

trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

The trial court shall order both trial and appellate counsel to respond to Applicant’s claims.

In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the

trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is

indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him

at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial

court shall immediately notify this Court of counsel’s name.

The trial court shall make findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and Applicant was prejudiced. The trial court shall also make findings

as to whether appellate counsel’s performance was deficient and whether he timely informed

Applicant of his right to file a petition for discretionary review. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: January 12, 2022 Do not publish