Fenlon, Robert Maxwell

             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


     Per curiam. YEARY , J., filed a concurring opinion in which SLAUGHTER , J., joined.
NEWELL, J., concurred.

                                             ORDER

        Applicant was convicted of possession with intent to deliver a controlled substance and

sentenced to thirty years’ imprisonment. The First Court of Appeals affirmed his conviction. Fenlon

v. State, No. 01-01-00062-CR (Tex. App.—Houston [1st Dist.] Dec. 19, 2002) (not designated for

publication). Applicant filed this application for a writ of habeas corpus in the county of conviction,

and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

        This application was file-stamped in Harris County on March 18, 2010. An order designating

issues was signed by the trial judge on April 7, 2010. This application was not received by this

Court until August 18, 2022. There is no indication in the record of any action by the trial court after
                                                                                                       2

the order designating issues was signed. Nor is there any indication as to why this application was

pending in Harris County for so long without any action by the clerk or the trial court.

        Applicant contends, among other things, that trial counsel was ineffective for many reasons,

including for refusing to support him in his claim of innocence and desired defense theory; not

communicating with him about the case and trial strategy; failing to investigate and call witnesses

to testify on his behalf; failing to adequately prepare him to testify; failing to request certain jury

instructions; not adequately cross-examining the State’s witnesses; stating “no objection” when the

State admitted the seized evidence; and making a bad closing argument. Applicant has alleged facts

that, if true, might entitle him to relief. Strickland v. Washington, 

 (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).

        As a preliminary matter, the trial court shall make findings of fact as to why no action was

taken by the trial court or the clerk between the entry of the order designating issues and the

forwarding of the application to this Court. And seeing that Applicant recently filed a motion asking

this Court to declare his conviction void, which is some indication that he still wants to pursue this

application, the trial court shall order trial 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
                                                                                                       3

performance was deficient and Applicant was prejudiced. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claim.

        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: December 7, 2022
Do not publish