w ,--r'1-t ~src'Ltt,a 1<0s ro-t<- ~ ~ LL fn-.)1> ffl, r<_ GV''OeJ-n Az,L-y .. r/Bi'r
"f0o cm;s 1- J;N.$f'VAe;rl o,JS -rv GtttWT f#h~e:ttS CoRJ!iA.S TtJ
{1ff U CANT J o rJC£' 1/'U- Bll I t) a> c..€ (S 'Rf\11 E-10 t1l , 5 '1. "B S77W11 A'T~
1) y tl-ff I i c 2{\+- 5 I!(/\) ~~a. - jl-,.:>1) J /r{A..-- DT't+£R.. tfeyg- (tl ,;) fi 5,
·1) ~ e\J ~ a E:SS ~t-ILY b~ ../At i ..s Co'U flT _
?eJW~ Ifff 1"c 2/1+ ?ruw s ..J4.;s t(}l) Ill c.; ~T -fl. ,:s fJ fP etn- liND 6t2.J'trSI _;ft. i .s /Jpf Ji ez,.,·f-/ /} ffrz:/!211+ a ·CitEMA-N1:> 'l"lft-cA<- TD -rtU /t1- (!p,) ~~ (JJ I II/ f}tL (I er:-i33.5!7R- 'f I)-J ST {2lA tT IoNS 'ft> ~ If fi-tc.-c A?-1\l t:+tt rc 811 /1) EN -n MY J/etttu~ r, f)dl) !1ffo,rJTM tEN,
. ()~ cuv~seL- #-5ftuJ--.CI0 .0~ n'l·,i{eot £Xa:cu~J. -Mti s I co\. ~ ! }ll JW 'Zo IS'_. ~?!_~ Ir-> ,.4A.~ 'D ~hAA--710~ (-z-6 J t.t->c ~ I '7'-/(o Scanned Aug 06, 2010
~ ~ 0 c: c::t ~!£~:- E
~{F(~ WRIT NO._:W07-00645(A); W07-71769(A); W07-71970 & 9 A'f;:~__.,__~ cP-· C')~;::.~ THE STATE OF TEXAS § IN THE 282N° J~JAI.J.1! ,f § :::' -1m"''· ~-::cL :S: S•• 0- I § l"f:l 11, -:::1'.:.:. (;;' v. § DISTRICT col§~T ~ § § TROY LEE PERKINS § DALLAS COUNTY, TEXAS
AFFIDAVIT OF BRET MARTIN
STATEOFTEXAS § § 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 isBretMartin. I am over twenty-one (21) 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 lawyer licensed to practice in the State ofTexas since November 1995. l 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, F07-7l769 and F07-71770 & 90. The offenses carried a range of punishment between 15 years confmement in the Texas Department of Criminal Justice and life. due to the Defendant having an enhancement paragraph resulting from a previous trip to the penitentimy. 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 ofthe cases against him. We also discussed all of his options that he had available to him. Those options were l.) to try to work out a plea bargain in the case; 2.) to plead guilty and allow the court or ajUI)' to set his punishment if he 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 a jury 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 tltat such evidence would present. Mr. Perkins decided to proceed to a jury trial. 027 -- ... ·--·-r----~----·----·. -·-·
Scanried Aug 06, 2010
He understood the factual allegations against him as well as all of the <:'J available to him." fl cf"lu.e.ve..r J -1u.r, 1---t r • A
Further. Affiant sayeth naught. I?S 1/1fo . '7 P3 c)cl.rd.frrJI- sRETE. MARTIN SWORN TO AND SUBSCRIBED BEFORE ME. this 1 tl day of J ..... c.. . 2010.
My commission expires:
028 EX PARTE IN THE 282nd JUDICIAL
~~'1ISTRICT 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 Appliqmt'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
,. 0 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
riot possible to respond intelligently to the Application. It fails to "contain sworn allegations·
of fad father 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
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, 427 U.S. 215,235 n. 7,
96 S.Ct. 2532,49 L.Ed.2d 451 (1976) (Stevens, Brennan and Marshall, JJ., di~$enting) . "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 CRU\XTLEY 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.
3 - - - - - - - - - - c - - - - - - - - - · - - · · · · · · ·---~---~--=--~----~~
S~anh~d Aug 06, 2010
CAUSE NO. W 07 -//t1<1D- 5lA)
EX PARTE INTI-IE 2.~2
Tr 04 Lee-- Per k.i· ns )I * JUDICIAL DISTRICT COURT J 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 riot entitled to .
counsel ar this rime.
The Clerk. of the Court is ORDF.RF:Dto...send !l.c.opy oftbis ord~r--t.O.th~ C..otu:t.of-Cr.i.mi-nal --
Appeals in Austin, TX, to Applicant, or Applicant's coW\Sel (if so represented) and to counsel for
the State. MAY I 22009 . Stgned t h"ts _ _ _ _ _ day o f _ _ _ _ _ _ _ _.....,. . ,. \, 2009 ~. . . /..-·\('. . --·""' ~f:L-----~\
JUDGE ·o11: .~~J!rclm 1
.-- Scanned Aug 06., 2010
WRITNO. W07-71769-S(A)
EX PARTE * I IN THE 282ND JUDICIAL TROY LEE PERKINS, '* 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 findirtgs offact and
.conclusions of law.
lllSTORY OF THE CASE
Applicant was convicted of aggravated robbery and was sentenced to 12 years confinement.
This is his first application for writ of habeas· corpus.
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 when court
procedures were not followed and he received ineffective assistance of counsel.
Applicant asserts that his sentence amounts to cruel and unusual punishment because he is
Findings of Fact and Conclusions of Law Page 1 Scanned Aug 06, 2010
not being afforded proper psychiatric care.
Applicant asserts that he is being threatened in TDCJ due to his psychiatric issues.
Applicant asserts l:.at he was denied a speedy ~ial.
RELEVANT EVIDENCE
Bret Martin, Applicant's attorney, has responded to the allegations by affidavilt. 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 eviden<~ 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 oft he 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 is judge by hindsight; rather, it affords a
defendant an attorney reasonably likely to render reasonably effective assistance. See Thompson v. O? .-. . -- 0
Findings of Fact and Conclusions of Law Page2 Scanned Aug 06, 2010
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Counsel's competence is prdsumed~ and
Applicant must rebut this presumption by proving that his attorney's representation wru: unreasonable
/ Wider prevailing professional norms and that the challenged action was not soWid 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 of fundamental or
constitutional rights." Ex parte Watson, 601 S.W.2d350(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. Se(! 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 pro6eedings. 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 ltis case heard
Findings of Fact and Conclusions of Law Page3 Scanned Aug 06, 2010
in a "mental illrtess 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 illrtess which I 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 illrtess court".
The Court concludes that Applicant has failed to prove that he received ineffective assistance
of counsel. Furthermore, Applic~t 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 of Law Page4 ---~-----------~----·------------··-········----·------- ·---- Scanned Aug 06, 2010
COURT'S RECQMMENDATION
This Court recommends that this writ of habeas corpus be DENIED.
I ORDERS OF THE COURT
In implementing th~ Court's Finding of Fact and Conclusions of Law, the Cle:rk will:
1. Prepare a transcript of papers in this cause and transmit the Court's Order and the Findings
of Fact and Conclusions of Law, 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. 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.
Findings ofFact and Conclusions of Law Page5