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August 19, 2013

Kelly returning for hearing in appeal

GREENVILLE — A state appeals court has ordered the 196th District Court to conduct a hearing this week in the case of a local man, who was found guilty of aggravated assault, rather than murder, in connection with the 2011 shooting death of a Greenville resident.

The Sixth Court of Appeals, in a ruling issued earlier this month, agreed with the attorney for Bernard Dale Kelly Jr., in that there are questions over the status of hearings which had been conducted in Kelly’s case.

“The state of the record is confused,” according to the August 7 ruling.

Kelly was convicted of the lesser included charge on Dec. 5, 2012 following a two day trial. Following a punishment hearing in the 196th District Court on Dec. 17, 2012, Kelly was sentenced to 12 years in the Texas Department of Criminal Justice-Institutional Division.

As a deadly weapon was found to have been used during the commission of the offense, Kelly will half to spend at least half of the sentence, or six years, in custody before he can be considered eligible for parole.

Aggravated assault is a second degree felony, punishable upon conviction by a maximum sentence of from two to 20 years to life in prison and an optional fine of up to $10,000.

But the appeals court indicated that it had joined Kelly’s attorney in attempting to determine if there were any other hearings in the case and to obtain records from the hearings.

“This Court has been involved for some time in communication with the court reporter ... in attempting to clarify matters and obtain records from the hearings,” said the ruling.

The appeals court has since returned the case back to the 196th District Court to conduct an evidentiary hearing in the matter. Kelly has been ordered returned to the Hunt County Jail in order to attend the hearing, which as of Friday afternoon was scheduled in the court Wednesday.

Kelly and Tyron Learone McCurdy, both of Greenville, had each received one indictment for murder involving the death of Treybbian Leeky Nelson. Kelly had pleaded not guilty.

In a motion filed with the court, District Attorney Noble D. Walker Jr. said his office was seeking the conviction on the lesser charge due to mitigating evidence and “defendant’s cooperation and truthful testimony in the trial of Tyrone McCurdy, the individual who killed the victim.”

McCurdy was convicted by a jury in the court In November 2012 of one count of murder and was sentenced to 50 years in prison.

Officers with the Greenville Police Department responded to a call of shots fired in the 1000 block of Edgar Street on the afternoon of February 8, 2011 where they found Nelson had been shot.

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