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W07-00645(A); W07-71769(A); W07-71970 &90^Ajg|;. * THE STATE OF TEXAS § IN THE 282nd ijUD^EIALs § IS s / S DISTRICT CO||*T is** S s s TROY LEE PERKINS § DALLAS COUNTY, TEXAS AFFIDAVIT OF BRET MARTIN STATE OF TEXAS § s • COUNTY OF DALLAS § Before me, the undersigned authority, on this day personally appeared BRET MARTIN, whom I identified by his Texas driver's license, andafterbeing dulysworn, stated as follows: "My name is Bret Martin. I am over twenty-one (2 ]) years ofage, ofsound mind, have never been convicted of crime involving moral turpitude and am competent to make this affidavit because I have personal knowledge of thefacts stated herein and they aretrue and correct. "I am a lawyer licensed to practice intheState of Texas 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 to represent 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 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 initiallyoffered 40 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. We alsodiscussed all ofhis options that hehadavailable 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 his guilt or innocence. I also explained to Mr. Perkins mat 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. Uc. ( Scanned Aug 06, 2010 He understood thefactual allegations against him as well as all of the consequences of the decisions _ which he was making. "On the morning of January 7,2008, wegathered in the 282nd District Court in preparation for a jury trial and the jury arrivedand we weresoonto begin the voir dire process. Atthat time, the Assistant District Attorney madean offerto Mr. Perkins to 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 goodjudgment Mr.Perkins understood the serious nature of theoffenses 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 C//X, ^> regarding both sides reaching jj ^/w is\jn * 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 ofeach 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 § lic, in and for Notary Public.''"' I •j?j State of Texas j The State of Texas My commission expires: 028 V WRIT NO. W07-71970-S(A) >- v. ... '"' A, EX PARTE § IN THE 282ndJUDICIAL § 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 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 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 Ex parte 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 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 or duration 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 of Habeas Corpus on its face. 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. cause no. W07~7/91)-Sc/0 EX PARTE IN THE 712 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 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 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. 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 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 thefollowing 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. He asserts thathis case should have been heard bya mental 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 U?2 Findings ofFact and Conclusions ofLaw Pag® 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 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. Ex parte 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, thatthere is areasonable probability that, but for counsel's unprofessional errors, the result ofthe proceeding would have differed. Stricklandv. 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 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 a fundamental 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 is limited, 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 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 r... <4/ii The Court finds that Applicant has failed to prove that he was entitled to have his case heard i Findings of Factand Conclusions of Law Page 3 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 of the 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 concludes that 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. J^O Findingsof Fact and Conclusions of Law Page 4 Scanned Jul 29, 2010 COURT'S RECOMMENDATION This Court recommends that this writ of habeas corpus be DENIED. ORDERS OF THE COURT In implementing the Court's Finding of Fact and Conclusions of Law, the Clerk will: 1. Prepare atranscript ofpapers inthiscause andtransmit 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 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 in the U.S. Mail. Signed and entered £/ll/l U- '-•\ ... Findings ofFact and Conclusions ofLaw • Page 5 CAUSE NO. W07-00645-S(H) EX PARTE * 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, 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 jjuDICIALg § DISTRICT COURTfc^ ^ ^ »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 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 12 201*7 JUDGE PRESIDING JEPRES