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WRIT NO. W07-00645(A); W07-71769(A);_W07-71970 & 9 Af;:-;,~. 1
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THE STATE OF TEXAS § IN THE 282Nn J~.JA~
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TROY LEE PERKINS § DALLASCOUNTY,TEXAS
AFFIDAVIT OF BRET MARTIN
STATE OF TEXAS §
§
COUNTY OF DALLAS §
Before me, the undersigned authority, on this day personally appeared BRET MARTIN,
whom I identified by his Texas driver's license, and after being duly sworn, stated as follows:
"My name is Bret Martin. I am over twenty-one (2 1) years of age, of sound mind, have never
been convicted of crime involving moral turpitude and am competent to make this affidavit because I
have personal kno~ledge of the facts stated herein and they are true and correct.
"I am a lawyerlicensed to practice in the State ofTexas since November 1995. I have
practiced criminal law in Dallas since that time both as an Assistant District Attorney and as a lawyer
in private practice. I have been in good standing with the State Bar of Texas at all times.
"I was appointed to represent a man by the name of Troy Lee Perkins back on March 27,
2007. Mr. Perkins was being charged with four separate aggravated robberies, in Cause numbers
F07-00645, F07-71769 and F07-71770 & 90. The offenses carried a range of punishment between 15
years conf'mement in the Texas Department of Criminal Justice and life, due to the Defendant having
an enhancement paragraph resulting from a previous trip to the penitentiary. The Defimdant was
initially offered 40 years in TDC by the prosecutor handling the case.
"I interviewed Mr. Perkins and discussed with him the merits of each of the cases against
him. We also discussed all of his options that he had available to him. Those options were 1.) to try
to work out a plea bargain in the case; 2.) to plead guilty and allow the court or ajwy to set his
punishment if be did not like the plea bargain offers; 3.) plead not guilty and present his case to the
Judge to decide his guilt or innocence; or 4.) plead not guilty and present his case to ajwy and allow
them to decide his guilt 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 a jury trial. 027
Scanned Aug 06, 2010
He understood the factual allegations against him as well as all of the consequences of the decisions ·--· .
which he was making.
"On the morning of January 7, 2008, we gathered in the 282nd District Court in preparation
s
for a juryt9at and the jury arrived and we were soon to begin the voir dire process. At that time, the
Assistant District Attorney made an offer to 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 recommendati.::m.
"During my representation, Mr. Perkins appeared to be of sound mind and good judgment.
Mr. Perkins understood the serious nature of the offenses and the consequences of proceeding to jury
trial. He also understood that these cases would require him to serve a minimum of 50% of his
sentence because of the deadly weapon fmding. 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 of the offenses. Furthermore, I am
{', . ~ certain that there was no mental health problems involved in his understandi~ o~ his decision making
J"hM 'A..j regarding both sides reaching this plea bargain agreement. It was sim~ly the best; mo~;t responsible
af'e_ ~.(!.LU manner in which to resolve these very _dangerous crimes. The Defendant was well infilrmed and
1 1//l~ . absolutely understood the options that he had and the consequences of each and every choice that was
h l)'l available to him."
.....L _~.e.v!:"r J-e. Further, Affiant sayeth naught.
.,t.Af71S I /1 fo
q PScjdtd.frtJI- BRET E. MARTIN
SWORN TO AND SUBSCRIBED BEFORE ME. this 1 tl' day of J-.... '· . 2010.
The State of Texas
My commission expires:
0:28
WRIT NO. W07-71970-S(A)
EX PARTE § IN THE 282nd-JUDICIAL
§ DISTRICT COURT OF
TROY LEE PERKINS § DALLASCOUNTY,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 a deadly weapon. He was sentenced in this case, and for three like offenses
in three other cases, to 12 years' confinement in prison. 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
1.
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 of his 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 of incarceration do not involve
c.onstitutional 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. F ano, 427 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
2
because habeas claims challenge the fact or duration of confinement (or restraint) rather than
the conditions of confinement." Ex parte Rieck, 144 S.W.3d 510,519 (Tex.Crim.App. 2004).
IV.
CONCLUSION
The State respectfully requests that this Court recommend denial or dismissal of the
Application for Writ of Habeas Corpus on its face.
Respectfully submitted,
CRAIG WATKINS
CRIMINAL DISTRICT ATTORNEY
DALLASCOUNTY,TEXAS
MARTIN L. PETERSON
ASSIST ANT 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 Dnit, Huntsville, Texas 77349 on this
8th day of May, 2009.
MARTIN L. PETERSON.
3
EX PARTE * fN THE 2X2
* JUDICIAL DISTRICT COURT
* DALLAS COUNTY, TEXAS
ORDER DESIGN A TfNG ISSUES
Having considered the applicant's Application for \Vrit 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 rhis time.
The Clerk of the Court is ORDERED to send a copy of this order to the Coun of Criminal
Appeals in Austin, TX. to Applicant. or Applicant's counsel (if so represented) and to counsel for
the State.
Signed this _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ , 2009.
Jl.JDGE i
\ ........--
Scanned Jul29,2010
WRITNO. W07-71970-S(A)
EX PARTE • IN THE 282ND JUDICIAL
TROY LEE PERKINS, • DISTRICT COURT
..'\PPLICANT * DALLAS COUNTY, TEXAS .
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On this day came on to be considered Applicant's Application for Writ of Habeas 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 of fact and
conclusions of law.
IDSTORY OF THE CASE
Applicant was convicted of aggravated robbery and was sentenced to 12 years confinement.
This i~ 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 that his case should have been heard by a mental illness court. as provided by TEX.
HEALTH & SAFETY CODE ANN. § 616.002
Applicant asserts that he was denied due process due to his special needs wheri court
procedures were not followed and he received ineff~ctive assistance of counsel.
Applicant asserts that his Sentence amounts to cruel and unusual punishment because he is
. I···) •'
U.!.£
Findings of Fact and Conclusions of Law Page 1 .
Scanned Jul29,2010
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 a preponderance of the 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 an Applicant alleges ineffective assistance of counsel, Applicant must first prove that
counsel's representation fell below an objective standard of reasonableness; and secondly, that there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the 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.2.d 53, 54-55 (Tex. Crim. App. 1986). The right to counsel
does not guarantee errorless counsel whose competence is judge by hindsight; rather, it affords a
defendant an attorney reasonably likely to render reasonably effective assistance. See Thompson v. 0 :. 3
1
Findings of Fact and Conclusions of Law Page2
--···-·---·-· .... ···- ·- ··-·
Scanned Jul 29, 2o1o .
. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Counsel's competence is presumed, and
Applicant must rebut ~s presumption by proving that his attorney's representation was unreasonable
under prevailing professional norms and that the challenged action was not sound strategy.
Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Thompson, 9 S.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 review jurisdictional defects or denials c.ffundamental or
constitutional rights." Ex parte Watson, 601 S~ W.2d 350 (Tex. Crim. App. 1980). Failure to adhere
to a legislative directive or mode of proceeding designed to safeguard a constitutional right will
likewise be cognizable only when the omission results in the denial of a constitutional protection.
Ex parte 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
0?4
The Court finds that Applicant has failed to prove that he was entitled to have his case heard
Findings of Fact and Conclusions of Law Page 3
Scanned Jul29,2010
in a "mental illness court". The statute cited by Applicant provides that the county may provide for
' .
such court. Jt 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 counse:l 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.
Findings of fact and Conclusions ofLaw Page4
Scanned Jul29,2010
COURT'S RECOMMENDATION
This Court recommends that this writ of habeas corpus be DENIED.
ORDERS OF THE COURT
Ill implementing the Court's Finding of Fact and Conclusio~s of Law, the Clerk will:
1. Prepare a transcript of papers in this cause and transmit the Court's Order and the Findings
of Fact and Conclusions ofLaw, including the judgment and indictment, all plea papers, if any, and
the Court of Appeals opinion, if any, to the Court of Criminal Appeals as provided by TEx. CODE
CRIM. PROC. AN'N. 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 _6~/_f_,_/_1"-----:--
-
JUDGE
Findings of Fact and Conclusions of Law PageS
CAUSE NO. W0?-00645-S(H)
EX PARTE * IN THE 282N° 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 of this order to Applicant, or Appiicant's
counsel (if so represented) and to counsel for the State.
WRIT NO. W07-00645-S(H)
EX PARTE §
IN THE 282ND 1JD~~~~ -
::::~::::!l.~x!tE
§
TROY LEE PERKINS
I" rr~ P':. :i: ~ • I
STATE'S PROPOSED FINDINGS OF FACT, ~ ~~f .r-
N
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(
CONCLUSIONS OF LAW, AND ORDER -< 0
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
1
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. <;:ode Crim. Proc. Ann. art. 11.07, § 4
(West Supp. 2013).
4. The Court also finds that Applicant has noto 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
2
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 depo~iting 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 _lQ_ day of _ _ _1_~-----,----' 20/---/ .
1M>'·~
JUDG~SIDING
'i
3
Perkins, Troy Lee
Combined Opinion