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January 5, 2014

Kelly sentencing overturned

TEXARKANA — The Sixth Court of Appeals in Texarkana recently reversed a sentencing decision by 196th District Judge Steve Tittle and remanded the case for new sentencing.

Bernard Kelly, Jr. was convicted of aggravated assault on Dec. 5, 2012 in connection with the 2011 murder of Treybbian Leeky Nelson. Kelly, who had originally been indicted for murder, cooperated with the state and testified against Tyron Learone McCurdy in return for a five year sentence. McCurdy was convicted on one count of murder and sentenced to 50 years in prison.

“At the plea hearing, the State argued Kelly was less culpable than McCurdy, had cooperated with the prosecution of McCurdy, and had provided testimony which proved critical in securing McCurdy’s conviction,” the appellate court’s opinion read. “The trial court, though, rejected the plea bargain noting that McCurdy received a fifty-year sentence. The State, with the consent of the defense, attempted to amend the indictment to aggravated assault or proceed on a refiled indictment, but the trial court refused.”

Both Hunt County Assistant District Attorney Lauren Hudgeons and Kelly’s defense attorney attempted to change Kelly’s election so the jury could assess punishment, but Tittle refused, dismissed the jury, and sentenced Kelly to 12 years in the Texas Department of Criminal Justice.

The appellate court found that Tittle “erred in not submitting punishment to the jury.” Hunt County District Attorney Noble Walker conceded that the trial court committed reversible error.

The proceedings were punctuated by conflict between the district attorney’s office and Tittle, according to the opinion.

“Throughout the proceedings, the trial court and the State antagonized each other,” the opinion read.

At one point, Tittle warned Hudgeons that he had duct tape in his desk and that he would not tolerate any more outbursts. According to the court opinion, Tittle told Hudgeons “[I am] surprised you still have your law license” and accused the prosecutor of committing “prosecutorial misconduct.” Hudgeons accused Tittle of conducting a “sham trial.”

No trial dates have been scheduled as of yet.

 

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