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WRIT NO. W07-00645(A); W07-71769(A); W07-71970 &90|fA]^|T * r~-$\
THE STATE OF TEXAS § IN THE 282nd Dljfi^lAL^ m^
o
§ •? 5
§ DISTRICT COQglT
TROY LEE PERKINS § DALLAS COUNTY, TEXAS
AFFIDAVIT OF BRET MARTIN
STATE OF TEXAS §
s
COUNTY OF DALLAS §
Beforeme, the undersigned authority, on thisday personally appeared BRET MARTIN,
whom I identified byhisTexas driver's license, and after being duly sworn, stated as follows:
"My name is Bret Martin. I am over twenty-one (21) years ofage, of sound mind, have never
been convicted of crime involving moral turpitude and amcompetent to make thisaffidavit because I
have personal knowledge of thefacts stated herein and they aretrue and correct.
"I am a lawyer licensed to practice in the State ofTexas since November 1995. I have
practiced criminal law inDallas since that time both asanAssistant District Attorney and asa lawyer
inprivate practice. I have been ingood standing with the State Bar ofTexas atall times.
"I wasappointed to represent a man bythename ofTroy LeePerkins back onMarch 27,
2007. Mr. Perkins was being charged with four separate aggravated robberies, inCause numbers
F07-00645, F07-71769 and F07-71770 & 90. The offenses carried a range of punishment between 15
years confinement inthe Texas Department ofCriminal Justice and life, due tothe Defendant having
anenhancement paragraph resulting from a previous trip to the penitentiary. The Defendant was
initiallyoffered40 years in TDC by the prosecutor handling thecase.
"I interviewed Mr. Perkins and discussed with him the merits of each of the cases against
him. Wealsodiscussed all of his options thathehad available to him. Those options were 1.) totry
towork out a plea bargain in the case; 2.) toplead guilty and allow the court orajury to set his
punishment ifhe did not like the plea bargain offers; 3.) plead not guilty and present his case to the
Judge todecide his guilt orinnocence; or4.) plead not guilty and present his case to ajury and allow
them to decide hisguilt or innocence. I also explained to Mr. Perkins that there was videotape
evidence of him committing these offenses and the difficulties that such evidence would present. Mr.
Perkins decided to proceed to ajury trial. v'c. I
Scanned Aug 06, 2010
He understood the factual allegations against him as well as allof theconsequences of the decisions _
which he was making.
"On the morning of January 7,2008, we gathered inthe 282nd District Court in preparation
for a jury trial and the jury arrived and we were soon to beginthe voir dire process. Atthat time,the
AssistantDistrictAttorneymade an offerto Mr. Perkinsto drop his enhancement paragraph and give
him 12 years on each of the four cases. That was three years below the statutory minimum that he
could receive from the jury and 28 years below the prosecutor's initial recommendation.
"During my representation, Mr. Perkins appeared to be of sound mind and good judgment
Mr. Perkins understood the seriousnature of the offenses and theconsequences of proceeding tojury
trial. He also understood that these cases would require him to serve a minimum of 50% of his
sentence because of the deadly weapon finding. He was provided legal representation the entire time
he was incarcerated and had communication with me throughout the entire process, Mr. Perkins and I
discussed his mental health history and he acknowledged and agreed that while that was a part of his
medical history, that in no way contributed to his committing ofthe offenses. Furthermore, I am
certain that there was no mental health problems involved in his understanding or his decision making
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/t^ MJb regarc'ulg DOtn s't'es reaching this plea bargain agreement. It was simply the best, most responsible
.£i<3 manner in which to resolve thesevery dangerous crimes. The Defendant waswell informed and
f (/ V absolutely understood the options that he had and the consequences of each and every choice that was
\ / available to him."
/. .~r A-£ Further, Affiant sayeth naught
BRET E.MARTIN
SWORN TO AND SUBSCRIBED BEFORE ME, this JL day of uu« c 2010.
"Joseph eT^lupTJ NotaryIPublic, i and for
Piiblic, in
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NalOfyPubBc;" I
jiy State ofTexas | The Stole of Texas
My commission expires:
028
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WRIT NO. W07-71970-S(A) € 3?
.£>•.
EX PARTE § IN THE 282ndJUDICIAL •/v
§ DISTRICT COURT OF
TROY LEE PERKINS § DALLAS COUNTY, TEXAS
STATE'S RESPONSE TO APPLICATION
FOR WRIT OF HABEAS CORPUS
The State, having considered the allegations contained in Applicant's Application for
Writ of Habeas Corpus in the above-numbered and entitled cause, makes the following
response:
I.
HISTORY OF THE CASE
Applicant entered a plea of guilty on January 7, 2008 to the charge of aggravated
robbery by using adeadly weapon. He was sentenced in this case, and for three like offenses
inthree other cases, to 12 years' confinement inprison. The four sentences run concurrently.
Applicant waived his right of appeal.
This is Applicant's first application for writ of habeas corpus.
II.
ISSUES RAISED IN APPLICATION
Applicant asserts (1) he was denied special needs representation and treated without
concern for his mental defect, supposedly in violation of §616.003 of the Health & Safety
Code, (2). unspecified court procedures were not followed and his trial counsel was
constitutionally ineffective, (3) he is not receiving proper psychiatric care contrary to the
Eighth Amendment, (4) he is incarcerated with numerous violent persons, who constantly
psychologically abuse him, contrary to the Eighth Amendment, and (5) he did not receive a
speedy trial.
III.
STATE'S RESPONSE
Applicant vaguely alleges some grounds that might entitle him to relief, but without
sufficiently describing what occurred in his case that might constitute a constitutional
violation. He further alleges things that would not affect the legality ofhis confinement. It is
not possible to respond intelligently to the Application. It fails to "contain sworn allegations
of fact rather than mere conclusions." Cf. Ex parte Young, 418 S.W.2d 824, 829
(Tex.Crim.App. 1967); see also Exparte McCain, 67 S.W.3d 204,209 n. 10 (Tex.Crim.App.
2002) and Ex parte McPherson, 32 S.W.3d 860, 861 (Tex.Crim.App. 2000).
It can be noted generally, however, that the conditions of incarceration do not involve
constitutional issues. "[I]t is abundantly clear that a myriad of problems of prison
administration must remain beyond the scope of proper judicial concern. Only significant
deprivations of liberty raise constitutional issues." Meachum v. Fano, All U.S. 215,235 n. 7,
96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) (Stevens, Brennan and Marshall, JJ., dissenting). "A
habeas claim is not ordinarily thought to 'accrue' while the inmate is housed in prison
because habeas claims challenge the fact orduration ofconfinement (or restraint) rather than
the conditions ofconfinement." Exparte Rieck, 144 S.W.3d 510,519 (Tex.Crim.App. 2004).
IV.
CONCLUSION
The State respectfully requests that this Court recommend denial or dismissal ofthe
Application for Writ of Habeas Corpus on its face.
Respectfully submitted,
CRAIG WATKINS
CRIMINAL DISTRICT ATTORNEY
DALLAS COUNTY, TEXAS
ytz**zi^ ^-&tzc**``>
MARTIN L. PETERSON
ASSISTANT DISTRICT ATTORNEY
STATE BAR NO. 15838600
FRANK CROWLEY COURTS BUILDING
133 N. INDUSTRIAL BLVD., LB-19
DALLAS, TEXAS 75207-4399
(214) 653-3647
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing response has been served on
Applicant, Troy L. Perkins, TDCJ #01480826, Wynne Unit, Huntsville, Texas 77349 on this
8lh day of May, 2009.
&**>*£& I fotZl*
MARTIN L. PETERSON.
cause no. W67~7/T/6-S{'/0
EX PARTE IN THE 2%2
Tfdu Lf6 Perkins, JUDICIAL DISTRICT COURT
APPLICANT DALLAS COUNTY. TEXAS
ORDER DESIGNATING ISSUES
Having considered the applicant's Application for Writ of Habeas Corpus and the State's
Response, the Court finds that controverted, previously unresolved facts material to the legality of
the Applicant's confinement exist. The Court finds that each of the allegations set forth in the
application are controverted, unresolved factual issues which require additional evidence and/or
testimony to be resolved.
The court appoints April E, Smith to resolve the issues and prepare findings of fact and
conclusions of law for the Court. The issues may be resolved by affidavits, depositions,
interrogatories, or by hearings, as deemed necessaiy by the person appointed herein.
Above appointed attorney does not represent the Applicant. Applicant is not entitled to
counsel at this time.
The Clerk of the Court is ORDERED to send a copy of this order to the Court of Criminal
Appeals in Austin. TX. to Applicant, or Applicant's counsel (ifso represented) and to counsel for
the State.
R$v .
Signed this dav of _, 2009.
A
H^ &kh ^y> >ai
JUDGE
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Scanned Jul 29, 2010
WRIT NO. W07-71970-S(A)
EX PARTE * IN THE 282nd JUDICIAL
TROY LEEPERKINS, * DISTRICT COURT
APPLICANT * DALLAS COUNTY, TEXAS.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On this day came on to be considered Applicant's Application for Writ ofHabeas Corpus and
the State's Response. Having considered these pleadings and the official court records, as well as
all exhibits and affidavits offered by both parties, this Court enters the following findings offact and
conclusions of law.
HISTORY OF THE CASE
Applicant was convicted ofaggravated robbery and was sentenced to 12 years confinement.
This is his first application for writ of habeas corpus.
ISSUES RAISED IN APPLICATION
Applicant asserts that he was denied special needs representation due to his psychiatric
issues. Heasserts thathiscaseshould have been heard bya mental illness courtas provided byTex.
Health & Safety Code Ann. § 616.002
Applicant asserts that he was denied due process due to his special needs when court
procedures were not followed and he received ineffective assistance ofcounsel.
Applicant asserts that his sentence amounts to cruel and unusual punishment because he is
1)2 c
Findings of Fact and Conclusions ofLaw PaSe •
Scanned Jul 29, 2010
not being afforded proper psychiatric care.
Applicant asserts that he is being threatened in TDCJ due to his psychiatric issues.
Applicant asserts that he was denied a speedy trial.
RELEVANT EVIDENCE
Bret Martin, Applicant's attorney, has responded to the allegations by affidavit. The Court
finds him to be trustworthy.
RELEVANT LAW
Burden of Proof
Applicant has the burden to allege and prove by apreponderance ofthe evidence facts which
entitle him to relief. See Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim.. App. 1985); Ex
parte Adams, 768 S.W.2d 281, 288-289 (Tex. Crim. App. 1989). Conclusory allegations are not
enough to warrant habeas relief. Exparte Young, 418 S.W,2d 824 (Tex. Crim. App. 1967).
Ineffective Assistance of Counsel
When anApplicant alleges ineffective assistance ofcounsel, Applicant must first prove that
counsel's representation fell below an objective standard ofreasonableness; and secondly, that there
isareasonable probability that, but for counsel's unprofessional errors, the result ofthe proceeding
would have differed. Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986). The right to counsel
does not guarantee errorless counsel whose competence isjudge by hindsight; rather, it affords a
defendant an attorney reasonably likely to render reasonably effective assistance. See Thompson v. 0i. 6
Findings ofFact and Conclusions ofLaw Page 2
Scanned Jul 29, 2010
State, 9S.W.3d 808, 814 (Tex. Crim. App. 1999). Counsel, competence is presumed, and
ApplicantmustrebuttWspresum^
under prevailing professional norms and that the challenged action was not sound strategy.
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Thompson, 9S.W.3d at 814.
Cognizable Issues
Cognizable claims on habeas are limited to two categories: (1) jurisdictional defects in the
convicting court; and (2) the denial of afundamental constitutional right. Ex parte Williams, 65
S.W.3d 656, 657 (Tex. Crim. App. 2001). The purpose to be served by a post conviction writ of
habeas corpus islimited, and "lies only toreviewjurisdictional defects ordenials offundamental or
constitutional rights." Exparte Watson, 601 S.W.2d 350 (Tex. Crim. App. 1980). Failure toadhere
to a legislative directive or mode of proceeding designed to safeguard a constitutional right will
likewise be cognizable onlywhenthe omission results in the denial of a constitutional protection.
Exparte Sadberry, 864 S.W.2d 541 (Tex. Crim. App. 1993).
Generally, conditions of confinement do not involve constitutional issues. See Meachum v.
Fano, 427 U.S. 215, 235 n. 7, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976).
Speedy Trial
Speedy trial claims are not cognizable in post-conviction habeas proceedings. Ex parte
Owenby, 749 S.W.2d 880, 881 (Tex. Crim. App. 1988) (violation of Speedy Trial Act is non-
jurisdictional defect which cannot be raised on habeas review).
FINDINGS OF FACT ,-.,. .
The Court finds that Applicant has failed to prove that he was entitled to have his case heard
t
Findings of Fact and Conclusions of Law Page 3
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in a "mental illness court". The statute cited by Applicantprovides that the county mayprovide for
suchcourt. It doesnot, however, state thatall cases where a defendant is alleged to be mentally ill
shall be transferred to that court. Applicant has not proven that he had a mental illness which
entitled his case to be transferred for disposition to that Court. Applicant's counsel indicates that
Applicant was able to communicate with him regarding the case and understood the options for
disposing of the case.
TheCourt finds that Applicant hasfailed to prove thathe received ineffective assistance of
counsel. Applicant makes no specific allegations of ineffectiveness for counsel to respond to.
However, counsel has provided an affidavit which sets out his representation in this case.
Furthermore, Applicant has not stated which courtprocedures werenot followed.
With regard to issues three, four and five, the Court finds that Applicant has not raised a
constitutional issue that is cognizable on habeas.
CONCLUSIONS OF LAW
TheCourtconcludes thatApplicant has failed to prove thathe was entitled to have his case
heard in a "mental illness court".
TheCourtconcludesthat Applicant hasfailedto provethat he receivedineffectiveassistance
of counsel. Furthermore, Applicanthas not stated which court procedureswere not followed.
With regard to issues three, four and five, theCourt concludes thatApplicant hasnotraised
a constitutional issue that is cognizable on habeas.
lv
0
Findings ofFact and Conclusions ofLaw Page 4
Scanned Jul 29, 2010
COURT'S RECOMMENDATION
This Court recommends that this writ of habeas corpus be DENIED.
ORDERS OF THE COURT
Inimplementing the Court's Finding ofFact and Conclusions ofLaw, the Clerk will:
1. Prepare atranscript ofpapers inthis cause and transmit theCourt's Order and theFindings
of Factand Conclusions of Law, including thejudgment andindictment, all pleapapers, if any, and
the Court of Appeals opinion, if any, to the Court of Criminal Appeals as provided byTex. CODE
CRIM. PROC. ANN. art. 11.07.
2. Send a copy of this Order and the Findings of Fact and Conclusions of Law to the
Applicant and his counsel, if any, by depositing same in the U.S. Mail.
Signed and entered £/UII
Findings ofFact and Conclusions of Law • Page 5
CAUSE NO. W07-00645-S(H)
EX PARTE * IN THE 282ND JUDICIAL
TROY LEE PERKINS, * DISTRICTCOURT
APPLICANT * DALLAS COUNTY, TEXAS
ORDER DESIGNATING ISSUES
Having considered the applicant's Application for Writ of Habeas Corpus and the State's
Response, the Court finds that controverted, previously unresolved facts material to the legality of
the Applicant's confinement exist. The Court finds that each of the allegations set forth in the
application are controverted, unresolved factual issues which require additional evidence and/or
testimony to be resolved.
The court appoints April E. Smith to resolve the issues and prepare findings of fact and
conclusions of law for the Court. The issues may be resolved by affidavits, depositions,
interrogatories, or by hearings, as deemed necessary by the person appointed herein.
Above appointed attorney does not represent the Applicant. Applicant is not entitled to
counsel at this time.
The Clerk of the Court is ORDERED to send a copy ofthis order to Applicant, or Applicant's
counsel (if so represented) and to counsel for the State.
Signed this 1^ day of '^
WRIT NO. W07-00645-S(H)
EX PARTE § IN THE 282ND jljDICIAL^
I "^ C3 ~> r—»
§ DISTRICT couJn£5 o^"7*
TROY LEE PERKINS ^ § DALLAS COUNTY^ ffEX^
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STATE'S PROPOSED FINDINGS OF FACT, 3 %" ^ ^V
CONCLUSIONS OF LAW, AND ORDER ~* °
Having considered Applicant's Application for Writ of Habeas Corpus, the
State's Response, and official court records of the challenged conviction, the Court
finds there are no controverted, previously unresolved facts material to the legality
of Applicant's confinement which require an evidentiary hearing. The Court
adopts as Findings of Fact the history of the case as set forth in the State's
Response and further makes the following findings of fact:
1. The Court recalls that this is Applicant's eighth application for writ of
habeas corpus. His first and sixth applications were denied on the merits.
His second, third, fourth, fifth, and seventh applications were dismissed
pursuant to article 11,07, section 4 of the Code of Criminal Procedure.
2. The Court finds that Applicant has failed to allege sufficient specific facts
establishing that the grounds asserted in the present application could not
have been presented previously because the factual or legal basis for the
claims was unavailable. The Court also finds Applicant has failed to allege
sufficient facts establishing that, by a preponderance of the evidence, but for
the violation of the United States Constitution, no rational juror could have
found him guilty beyond a reasonable doubt.
3. Accordingly, the Court finds Applicant has failed to establish an exception
to section 4's procedural bar. See Tex. Code Crim. Proc. Ann. art. 11.07, § 4
(West Supp. 2013).
4. The Court also finds that Applicant has not met any of the statutory
predicates for raising a time credit complaint, which is the sole issue raised
in his present application.
5. The Court recommends the dismissal of Applicant's Application for Writ of
Habeas Corpus.
6. The Court also recommends that Applicant be cited for abuse of the writ.
ORDERS OF THE COURT
In implementing the Court's Findings of Fact and Conclusions of Law, the
CLERK IS ORDERED to:
1. Prepare a transcript of all papers in this cause and transmit the Court's
Findings and Order, including the judgment and indictment, docket sheets,
and other exhibits and evidentiary matter filed in the trial records of this
cause to the Court of Criminal Appeals as provided by article 11.07 of the
. Texas Code of Criminal Procedure.
2. Send a copy of these Findings of Fact, Conclusions of Law, and Order to
Applicant and his counsel, if any, and to Christine S. Ou, attorney for the
State, by depositing same in the U.S. mail.
By the following signature, the Court adopts the State's Proposed Findings of
Fact, Conclusions of Law, and Order.
SIGNED this 0 day of 12 L
,201^.
rEPR£
JUDGE PRESIDING