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WRIT NO. W07-00645(A); W07-71769(A); W07-71970 &90^Ajg|;. *

THE STATE OF TEXAS § IN THE 282nd ijUD^EIALs

§ IS s

/ is** S S DISTRICT CO||*T

s

s

TROY LEE PERKINS § DALLAS COUNTY, TEXAS

AFFIDAVIT OF BRET MARTIN

STATE OF TEXAS §

s •

COUNTY OF DALLAS §

Beforeme, the undersigned authority, on thisdaypersonally appeared BRET MARTIN,

whom I identified byhisTexas driver'slicense, andafterbeing dulysworn, stated asfollows:

"My name isBret Martin. I am over twenty-one (2 ])years ofage, ofsound mind, have never

been convicted of crime involving moral turpitude and amcompetent to makethis affidavit because I

have personal knowledge of thefacts stated herein and they aretrue and correct.

"I ama lawyer licensed topractice intheState ofTexas since November 1995. I have

practiced criminal law inDallas since that time both asanAssistant District Attorney and as a lawyer

inprivate practice. I have been ingood standing with the State Bar ofTexas at all times.

"I was appointed torepresent a man bythe name ofTroy Lee Perkins back on March 27,

2007. Mr. Perkins was being charged with four separate aggravated robberies, inCause numbers

F07-00645, F07-71769 andF07-71770 & 90. Theoffenses carried a range of punishment between 15

years confinement inthe Texas Department ofCriminalJustice and life, due tothe Defendant having

anenhancement paragraph resulting from a previous trip tothe penitentiary. The Defendant was

initiallyoffered40 years in TDC bythe prosecutor handling thecase.

"I interviewed Mr. Perkins and discussed with him the merits of each ofthe cases against

him. We alsodiscussed all ofhis optionsthathehadavailable tohim. 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 orinnocence. I also explained toMr. Perkins mat there was videotape

evidence ofhim committing these offenses and the difficulties that such evidence would present. Mr.

Perkins decided to proceed to ajury trial. Uc. (
Scanned Aug 06, 2010

He understood thefactual allegations against him as well as all ofthe consequences ofthe decisions _

which he was making.

"On the morning ofJanuary 7,2008, wegathered inthe 282nd District Court inpreparation

for ajury trial andthejury arrivedandwe weresoonto begin the voirdire process. Atthattime, the

Assistant District Attorney madean offerto Mr.Perkins to drop his enhancement paragraph and give

him 12 years on each ofthe 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 beofsound mind and goodjudgment

Mr.Perkins understood the serious nature of theoffenses andtheconsequences of proceeding tojury

trial. He also understood that these cases would require him to serve a minimum of 50% ofhis

sentence because ofthe 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 ofhis

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

C//X, ^> * ~ jj ^/wis\jn regarding both sides reaching this plea bargain agreement. Itwas simply the best, most responsible

Qip ^1-CtO manr'e'° i*5 which to resolve these very dangerous crimes. The Defendant was well informed and

/ I/a y absolutely understood the options that he had and the consequences of each and every choice that was

\ j available to him.''

hi

/ .~" Af Further, Affiant sayeth naught

BRET E. MARTIN

SWORN TO AND SUBSCRIBED BEFORE ME, this 1 * day of ^ wx c. ,2010.

JOSEPH E. PHILLIPS §

Notary Public.''"' I •j?j State of Texas j

lic, in and for

The State ofTexas

My commission expires:

028
V

WRIT NO. W07-71970-S(A) > -

v. ...

'"' A,

EX PARTE § IN THE 282ndJUDICIAL

§ DISTRICT COURT OF

TROY LEEPERKINS ' § DALLAS COUNTY, TEXAS

STATE'S RESPONSE TO APPLICATION

FOR WRIT OF HABEAS CORPUS

The State, having considered the allegations contained inApplicant'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 sentencesrun 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 theHealth &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 ofincarceration 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 ofliberty 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 thefact orduration of confinement (orrestraint) 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 ordismissal ofthe

Application for Writ ofHabeas Corpus on itsface.

Respectfully submitted,

CRAIG WATKINS

CRIMINAL DISTRICT ATTORNEY

DALLAS COUNTY, TEXAS

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

8th day of May, 2009.

MARTIN L. PETERSON.
EX PARTE

APPLICANT

cause no. W07~7/91)-Sc/0

IN THE 712

JUDICIAL DISTRICT COURT

DALLAS COUNTY, TEXAS

ORDER DESIGNATING ISSUES

Having considered the applicant's Application for Writ ofHabeas 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 ofthe 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 offact 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 ofthe Court is ORDERED to send a copy ofthis order to the Court ofCriminal

Appeals in Austin. TX. to Applicant, or Applicant's counsel (ifso represented) and to counsel for

the State.

Mflv

"jflQ

Signed this day of , 2009.

A

•.Ky

i/^io y?ih \ h?m•i/n

JUDGE
c

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 ofHabeasCorpus 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 entersthefollowing findings offact and

conclusions oflaw.

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. He assertsthathis case should have been heard byamental illness court asprovided by Tex.

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

Findings ofFact and Conclusions ofLaw Pag®

U?2
ry

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 hasthe burden to allege and prove by apreponderance ofthe evidence facts which

entitle him torelief. 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 ofCounsel

When anApplicant allegesineffective assistance ofcounsel, Applicant must first prove that

counsel'srepresentationfell below an objective standard ofreasonableness; and secondly, thatthere

is areasonable probability that, butfor counsel's unprofessional errors, the result ofthe proceeding

would have differed. Stricklandv. Washington, 466 U.S. 688, 104 S. Ct.2052, 80L. 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 torender reasonably effective assistance. See Thompson v. UI 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

ApplicantmustrebuttWspresumpti

under prevailing professional norms and that the challenged action was not sound strategy.

Kimmelman v. Morrison, All 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 to reviewjurisdictional 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

likewisebe cognizable only when the omission resultsin the denial of a constitutional protection.

Exparte Sadberry, 864 S.W.2d 541 (Tex. Crim. App. 1993).

Generally, conditions ofconfinement 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 nonjurisdictional defect which cannot be raised on habeas review).

FINDINGS OF FACT r...

<4/ii

The Court finds that Applicant has failed to prove that he was entitled to have his case heard

i

Findings of FactandConclusions of Law Page3
Scanned Jul 29, 2010

in a "mental illness court". The statute cited by Applicant provides that the county may provide for

such court. It does not, however, state that all 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 ofthe case.

The Court finds that Applicant has failed to prove that he 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 court procedures were not 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

The Court concludes that Applicant has failed to prove that he was entitled to have his case

heard in a "mental illness court".

The Court concludesthat Applicant has failed to prove that he received ineffective assistance

of counsel. Furthermore, Applicant has not stated which court procedures were not followed.

With regard to issues three, four and five, the Court concludes that Applicant has not raised

a constitutional issue that is cognizable on habeas.

Findingsof Fact andConclusions of Law Page 4

J^O
Scanned Jul 29, 2010

COURT'S RECOMMENDATION

This Court recommends that this writ ofhabeas corpus be DENIED.

ORDERS OF THE COURT

In implementing theCourt's Finding ofFact and Conclusions ofLaw, theClerk will:

1. Prepare atranscript ofpapersinthiscause andtransmittheCourt's Order and theFindings

of FactandConclusions of Law,including thejudgment andindictment, all pleapapers, if any,and

theCourt ofAppeals opinion, if any, to theCourt ofCriminal Appeals as provided byTex. CODE

Crtm. 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, bydepositing same intheU.S. Mail.

Signed and entered £/ll/l

Findings ofFact and Conclusions ofLaw • Page 5

U- '-•\ ...
CAUSE NO. W07-00645-S(H)

EXPARTE * IN THE 282ND JUDICIAL

TROY LEE PERKINS, * 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, asdeemed 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 ofthe 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 jjuDICIALg

§ DISTRICTCOURTfc^ ^^ »1

TROY LEE PERKINS ^ § DALLAS COUNTyJ^EXAS S r^

STATE'S PROPOSED FINDINGS OF FACT, 3 - " ^ ^ w

CONCLUSIONS OF LAW, AND ORDER ~* °

Having considered Applicant's Application for Writ of Habeas Corpus, the

State's Response, and official court records ofthe 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 ofthe 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 ofthe 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 ofLaw, and Order.

SIGNED this 0 day of 12 201*7

JUDGEJEPRESIDING