Kelly, Lovell Jr ( 2022 )

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
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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