Full Opinion (html_with_citations)

      In the Court of Criminal
          Appeals of Texas
                         ══════════
                        No. WR-48,147-04
                         ══════════

           EX PARTE ROBERT MAXWELL FENLON,
                             Applicant
   ═══════════════════════════════════════
        On Application for a Writ of Habeas Corpus
       Cause No. 825756-A in the 179th District Court
                   From Harris County
   ═══════════════════════════════════════

       YEARY, J., filed a concurring opinion, in which SLAUGHTER, J.,
joined.

      Applicant was convicted in 2000 of possession with intent to
deliver a controlled substance and sentenced to thirty years’
imprisonment. The First Court of Appeals affirmed his conviction in
2002. Fenlon v. State, No. 01-01-00062-CR,
2002 WL 31835768
 (Tex.
App.—Houston [1st Dist.] Dec. 19, 2002). In March of 2010, Applicant
                                                                 FENLON – 2




filed an application for writ of habeas corpus in the county of conviction.
TEX. CODE CRIM. PROC. art. 11.07. In his application, he alleges
ineffective assistance of trial counsel, denial of the right to self-
representation, lack of jurisdiction, no evidence, and prosecutorial
misconduct.
       Today, the Court remands this application to the trial court on
the ineffective assistance of trial counsel ground in order to further
develop the record and obtain a response from trial counsel. I join the
Court’s remand order. But I write separately to address my thoughts
concerning the doctrine of laches and its possible application to this case.
See Ex parte Smith,
444 S.W.3d 661
 (Tex. Crim. App. 2014) (holding a
trial court has the authority to sua sponte consider the doctrine of
laches); Ex parte Bazille, ___ S.W.3d ___, No. WR-89,851-02,
2022 WL 108348
 (Tex. Crim. App. Jan. 12, 2022) (Yeary, J., concurring).
       The doctrine of laches ought to be considered in a case like this
one. Applicant’s appeal was finalized in 2002, but this writ application
was not filed until over seven years later. 1 The record is also silent
regarding circumstances that may excuse Applicant’s delay, and at least
some explanation for the long delay in filing should be provided.
Consistent with this Court’s precedent, the trial court “may sua sponte
consider and determine whether laches should bar relief.” Smith,
444 S.W.3d at 667
. If the trial court does so, it must give Applicant the


       1 “Our revised approach will permit courts to more broadly consider the
diminished memories of trial participants and the diminished availability of
the State’s evidence, both of which may often be said to occur beyond five years
after a conviction becomes final.” Ex parte Perez,
398 S.W.3d 206, 216
 (Tex.
Crim. App. 2013) (citing Ex parte Steptoe,
132 S.W.3d 434
, 437–39 (Tex. Crim.
App. 2004) (Cochran, J., dissenting)).
                                                           FENLON – 3




opportunity to explain the reasons for the delay and give the State’s
prosecutors and/or former counsel for Applicant an opportunity to state
whether Applicant’s delay has caused any prejudice to their ability to
defend against Applicant’s claims. Id. at 670. And ultimately, the trial
court may include findings of fact and conclusions of law concerning the
doctrine of laches in its response to this Court’s remand order.
      With these additional thoughts, I join the Court’s order.



FILED:                                  December 7, 2022
DO NOT PUBLISH