Fenlon, Robert Maxwell ( 2022 )

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
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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, 466 U.S. 668 (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
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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
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