SMITH COUNTY, TX (KLTV) - Patrick "Booger Red" Kelly was convicted and sentenced once, but now, the accused child molester will get a retrial. Thursday morning, the 14th court of appeals reversed Kelly's case.
The court says the evidence was there in Kelly's trial, but they add that too many rules were broken by both the trial court and prosecutors.
In its opinion, the court writes the "record is rife with error," mistakes the appeals court says may have led to Kelly's conviction.
"I expected acquittal...because he's not guilty," said Linda Kelly, Patrick Kelly's mother.
For weeks, she sat in the back of the 241st district courtroom while her son was put on trial.
"It was hell," she said.
Friday, she and her grandson, Stephen, will make the 10-hour drive to Amarillo to see their son and father jail.
"It's like ripping your heart out of your chest and it hurts," said Stephen Kelly.
KLTV surprised Wes Volberding, Kelly's appellate lawyer, with the decision, Thursday morning. But, the decision itself did not take him by surprise.
"In this case, there were serious errors in the way that seven categories of evidence were handled," said Volberding. "They had no hesitation about sending the case back for a new trial to make sure that those seven areas were handled correctly."
It includes hearsay testimony the appeals court says should not have been allowed. There was also an issue with the prosecutor's closing arguments.
"He made very strong statements that Kelly should be convicted just like the other people in the other trials were convicted," said Volberding.
"Is that a heinous, awful, terrible thing to say? No. Is it something that's not within the evidentiary rules? Yes. Is it inherently dishonest? No. Did anyone withhold evidence? No," said Matt Bingham.
Smith County D.A. Matt Bingham is referring to earlier allegations by the defense the state withheld crucial information in the case. He says, clearly, the appeals court disagreed with that allegation, but accepts the court's overall decision and will re-try Kelly's case.
"Sometimes, we're not perfect on evidentiary rules," said Matt Bingham. "Sometimes we get it wrong. I believe Judge Skeen made the decision that he felt was right and the appellate courts disagreed with him that's why we have appellate court."
"It's been hard, but we've had to survive," said Linda Kelly. "We will go through anything we can to support him."
They are committed, even if that means sitting through another trial.
The Houston appeals court also reversed the case of Jaime Pittman. Pittman was convicted and sentenced to life in prison in March 2008 on one charge of aggravated sexual assault of a child.
This is not the only case Smith County prosecutors say they will have to retry. The appeals court also decided to send back Jamie Pittman's trial - Kelly's co-defendant. Pittman was convicted of aggravated sexual assault of a child. He was sentenced to life in prison but the appeals judges say the trial court allowed Pittman to be tried on his past criminal offenses.
The court says that may have influenced the jury's decision in the sexual assault case.