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ORIGINA Oral argument requested

PD-1314-14

In The Texas Court ofCriminal Appeals

Robert Tracy Warterfield

appellant

vs.

The State of Texas

appellee

FROM THE FIFTH COURT OF APPEALS

CAUSE NO. 05-13-00017-CR

•iciiv/feD M

I APPEALS

FEB 18 2015

*!Acosaa,G3??r

FILED IN

-COURT OF CRIMINAL APPEALS

FEB L0 2jj5

Abel Acosta, Clerk

APPEAL FROM THE 416th JUDICIAL DISTRICT COURT

OF COLLIN COUNTY, TEXAS, CAUSE No. 416-80757-2011

THE HONORABLE CHRIS OLDNER PRESIDING

Appellant's Motion for

Rehearing of Petition for

discretionary review

ROBERT TRACY WARTERFIELD

CLEMENTS UNIT - T.D.C.J. #1829999

9601 SPUR 591 AMARILLO, TEXAS 79107-9606

PR0-SE
To The Honorable Judges of the Texas Court ofCriminal Appeals;

Comes now ROBERT TRACY WARTERFIELD, petitioner in the above -

entitled and numbered cause, submits this motion for rehearing pursuant to Rule 79

ofthe Texas Rules ofProcedure, and also requests that the Court resubmit this

cause for further consideration ofits opinion of February 4,2015.
Table ofContents

Question for Review 4

Index ofAuthorities ! 5

Identity of Parties and Counsel 6

Statement Regarding Oral Arguments 8

Statement ofthe Case and Procedural History Argument 9

Arguments in Answer to Question 11

1.) a.) The parties are obligated to make their performances in compliance

with the status ofthe laws as they existed at formation of contract on April

18, 1994, and the laws in existence at formation are a source of vested

substantive rights and obligations.

b.) The "Contract Clauses" ofthe United States and Texas Constitutions

prohibits the impairment of settled contracts by retroactively applying

legislation subsequent to formation.

2.) The State's breaches of plea agreement provisions is fundamental error.

3.) The Trial Court and the Court ofAppeals has misconstrued the agreement's

provisions by wrongly applying or omitting contract law, constitutions, and

canons of plea agreement construction.

Reason to Grant this Motion for Rehearing 19

Prayer 20

Certificate of Service 22

Certificate ofCompliance , 22
Questions for Review

La) Are the parties obligated to.make performances ofthe April 18, 1994,

plea agreement contract in compliance with the status ofthe laws in

existence at formation?

b) Is retroactive application ofsubsequent legislation permissible to impair

obligations ofthe contract?

2. Is it fundamental error for the State to not strictly adhere to or outright

breach its obligations to a defendant under a plea agreement contract?

3. Has the Trial Court and the Court ofAppeals properly employed contract

law, State and Federal Constitutions, and canons of construction required in

the construed of a plea agreement?
Index of Authorities

Cases

Bitterman v. State, 180 S.W. 3d 139 (Tex. Crim. App. 2005) 13

Coleman v. Railroad Commission, 445 S.W. 2d. 790, ref n.r.e. and writ granted,

460 S.W. 2d. 404) 15

Comcast Cable ofPiano, Inc. v. City ofPiano, 315 S.W.3d 673 (Tex. App. -

Dallas 2010) 11

Gambillv. State, 692 S.W.2d 186 (Tex. Crim. App. 1985) 14

Lopez v. State, 708 S.W.2d446 (Tex. Crim. App. 1986) 14

Luting Oil & Gas Co. v. Humble Oil & Refining Co., 191 S.W.2d 716, 144 Tex.

475 (Tex. 1945) .11,13

United States v. Munoz, 408 F. 3d 222 (5th Cir. 2005) 13

United States v. Valencia, 985 F.2d 758 (5th Cir. 1993) 13,14

Wessely Energy Corp. v. Jennings, 736 S.W.2d 624 (Tex. 1987) 11,13

Books

Vernon's Annotated Texas Constitution, Volume IB 12

West's Texas Digest, 2d, Volume 11 11
Identity of Parties and Counsel

For Appellant Robert Tracy Warterfield

WILLIAM SCHULTZ

Trial counsel

2101 Brugge Court

Piano, Texas 75025

JOSHUA ANDOR

Trial counsel

2490 W. White Avenue

McKinney, Texas 75071

DERK A. WADAS

SAMANTHA CHAMBERS

Direct appeal counsel

ROSENTHAL & WADAS, PLLC

4500 El Dorado Parkway, Suite 3100

McKinney, Texas 75070

BRUCE ANTON

BRETT ORDIWAY

Petitionfor discretionary review counsel

SORRELS, UDASHEN & ANTON

3211 Cedar Springs, Suite 250

Dallas, Texas 75201

ROBERT TRACY WARTERFIELD, Pro-Se

Motionfor rehearingfor discretionary review

T.D.C.J. #1829999

Clements Unit

9601 Spur 591

Amarillo, Texas 79107
For Appellee the State of Texas:

CLAIRE MIRANDA

CRYSTAL LEVONIUS

Trial counsel ofrecord

COLLIN COUNTY DISTRICT ATTORNEY'S OFFICE

2100 Bloomdale Road

McKinney, Texas 75071

EMILY JOHNSON-LIA

Appellate counsel

COLLIN COUNTY DISTRICT ATTORNEY'S OFFICE

2100 Bloomdale Road

McKinney, Texas 75071
Statement Regarding Oral Argument

The Dallas Court ofAppeals, whose errors go to the heart ofthe criminal justice

system, undermines the rule oflaw. That court has misapplied contract law,

constitutional law and cannons of construction in so many different ways that I

believe that oral arguments will be helpful for this court to recognize the

implications and to correct the errors.
Statement of the Case and Procedural History

In 1989, the nine-year-old complainant was sexually assaulted. (RR4: 233-37).

Police collected evidence at the scene, including the pillowcase that had been

placed over her head to prevent her from identifying her assailant. (RR: 110). It

was sent to the Southwest Institute ofForensic Science (SWIFS), and stains found

tested presumptively positive for seminal fluid. (RR4: 168-69, 171). No DNA

testing performed, though, because, at that time, DNA testing was done only if

there was a suspect to make comparison. (RR4:64).

Warterfield became a suspect by 1994, at the latest, but only on 2010 was DNA

from the sperm found on the pillowcase compared to DNA obtained from'a blood

sample taken from him in 1992. (RR5: 62). Once the forensic biologist determined

the samples matched, police obtained a search warrant for a buccal swab. (RR4:

1137-38, 184,186). The DNA obtained from the buccal swab, too, matched that

found on the pillowcase.

Warterfield was indicted on two counts of aggravated sexual assault of a child

and two counts ofindecency with a child by contact. (CR: 16-17). At the ensuing

trial, Warterfield testified that the police had framed him, but the jury rejected this

defensive theory and found him guilty of all counts. (RR5: 113-19; CR: 222-23).

The jury further assessedpunishmentat life imprisonment in the aggravated sexual
assault cases, twenty years' imprisonment in the indecency cases, and $10,000

fines in each case. (CR: 220,233).

On appeal to the Court ofAppeals or the Fifth District at Dallas, Warterfield

argued that the Trial Court made three crucial errors, among them overruling his

objection to impeachment evidence admitted in violation of a prior plea bargain

agreement. Warterfield v. State, 05-13-00017-CR, 2014 WL 4217837 (Tex.App.-

Dallas Aug.27, 2014). The court overruled each contention, though, and affirmed

Warterfield's conviction. Id. No motion for rehearing was filed.

Appellant's petition for discretionary review was filed on November 7, 2014,

and refused on February 4,2015.

10
Arguments in Answer to Questions:

1 a) The Parties are obligated to make their performances in compliance

with the status ofthe laws as they existed at formation. (C.F. West Texas

Digest, 2d "Contracts" Key 167 - Existing law as part of contract) "Every

contract incorporates the laws that existed at the time and place ofits

making, regardless ofwhether that incorporation is express." {Comcast

Cable ofPiano, Inc. v. City ofPiano, 315 S. W. 3d 673 - TX. APP. - Dallas

2010) Where the law "speaks," it is not necessary for the contract

redundantly do so. "Where agreement is silent or obscure as to a particular

subject, the law and usage become a portion of contract [and] constitute a

/

supplement to and interpret it". {Luting Oil & Gas Co. v. Humble Oil &

Refining Co., 191 S.W. 2d 716, 144 Tex 475-Tex 1945), the cases listed in

"Exhibit A" ofthe contract afortiorari include the laws in existence. The

meaning and intent of a contract is settled on the day it was formed, and is

no different at any time subsequent. "Law existing at time contract is made

become part of contract and governs transaction. "{Wessely Energy Corp. v.

Jennings, 736 S.W. 2d 624, emphasis added) The Court ofAppeals judged

correctly on this issue when stating:

Additionally, to the extent we must read the Plea agreement as a

contract that generally incorporated the laws that existed in

1994..." (Opinion at page 5, lines 6-7)

li
b) It is the completion ofthe Court ofAppeals sentence supra where the error

in applying the Constitutions occurs, specifically United States Constitution

Art. 1 § 10, cl. 1 and Texas Constitution Art. 1 § 16 "Contract Clause":

".. .the law at the time also permitted the legislature to extend

limitation for a crime that had yet to become time barred."

(Opinion at page 5, lines 7-8)

In addition to the laws being read into contracts, so are the Constitutions as

they existed at contract formation. It seems to be beyond recall that

although the legislature may continue to amend the status ofthe laws within

constitutional boundaries, legislative amendments may not be applied

retroactively to impair the obligation of contracts. Additionally, contractual

obligations and vested rights includes the relevant laws in existence at

formation. "The obligationprotected is not derived from the acts and

stipulations of the parties alone, but also includes the relevant law in force

at the time the contract is made. The contract clause prohibits only laws

which operate retroactively on contracts. ("Interpretive Commentary" to

Article 1 §16, Vernon's Annotated Texas Constitution, Volume IB, page

319) The provisions ultimately merged, excluded, orsilent but intended by

the parties in a contract arethus not onlythe result of the laws in existence,

the relevant laws themselves become provisions that govern subsequent r

12
performances between the parties. "Law existing at time contract is made

becomes part of contract and governs transaction." {Wessely Energy Corp.

v. Jennings, 736 S.W. 2d 624 - Tex. 1987.) Any silence or lack ofreference

in the instrument to a relevant existing law or constitutional provision is

merely agreement to that law by the parties. {Luting Oil & Gas Co., supra)

In Bitterman v. State (180 S.W, 3d 139,141-Tex.Crim. App.2005), the

second ground for review was ".. ..whether the court of appeals erred in

failing to address whether the breach of a plea agreement is a 'category

one' right that cannot be waived." The ground was not addressed.

However, as for precedential value, I find at the Fifth Circuit numerous

cases that state that a breach of a plea agreement by the government is

"plain error." e.g.,{U.S. v. Valencia, 958 F.2d 758,761-5* Cir. 1993). It

seems that "plain error" and "fundamental error" are synonymous. As in

Bitterman, I argue here that the right to have terms of a plea agreement

with the State fulfilled by the State [with strict adherence] is a right that

must be implemented. "The Government's failure to fulfill its promise

effects the fairness, integrity, and public reputation ofjudicial proceedings,

and thus, a breach of a plea agreement can constitute plain error." {United

States v. Munoz, 408 F.3d 222, 226 - 5th Cir. 2005).

13
Despite the argument that I am making here not being included in the

petition for discretionary review, that argument being that the laws in

existence at formation are to govern performance and cannot be impaired

as being the intentionoftheparties atformation, I believe that it is

fundamental and can be raised at any time. Indeed, it was raised at trial

only at my incessant urging, incorrectly judged on by the Court of

Appeals, and omitted from the petition for review solely upon the decision

ofmy attorney, Mr. Bruce Anton. The court may review fundamental error

that is raised for the first time in the petition for R\review. (see Lopez v.

State, 708 S.W. 2d 446, 449 - Tex. Crim. App. 1986).I ask that any

unassigned error regarding the State's beaches ofthe contract be addressed

in this motion for rehearing despite {Gambill v. State, 692 S.W. 2d 106,107

- Tex. Crim. App. 1985).

"If a defendant pleads guilty as part of a plea agreement, the

Government must strictly adhereto the terms and conditions ofits

promises in the agreement". {United States v. Valencia, 985 F.2d 758, 761

- 5th Cir. 1993) Therefore, even if Rule 609 were to be a provision by

implication as the State argues, that even breached the contract by not

strictly adhering Rule 609 by ensuring that a balance test was performed.

However, I argue that rules oflaw are not implied like laws and

14
constitutions. "A general rule oflaw does not become part of contractual

obligation unless by express terms or necessary intendment is imported

into the contract". {Coleman v. Railroad Commission, 445 S.W. 2d 790,

ref. n.r.e. and writ granted, modified 460 S.W.2d 404). (As an aside here,

please forgive me if any ofmy authorities are overruled, inapposite, or

otherwise inapplicable. I am not a sophisticated practitioner, do not intend

in any way to mislead the court, I am doing my honest best to present this

motion in compliance with the Rules).

Perhaps the quickest and most efficient way to be dispositive ofthis

case would be for the court to construe this agreement de nova. I contend

here that neither the Trial Court nor the Court of Appeals has properly

employed trial contract law, State and Federal Constitutions, nor canons of

construction as required in a plea agreement context.

Is this contract in question partially merged? I would say yes, and

apparently so does the State by arguing that rule 609 which is outside the

four corners should be implied. While I do not agree that 609 is implied, I

do see that the laws in existence at formation, the Constitutions , and good

faith and fair dealing are all impliedprovisions ofthe agreement conveying

the parties intentions andthe defendant's reasonable understanding of the

15
agreement. This contract was not formed in a vacuum without laws,

constitutions, and on principles. Texas takes the untenable position that the

"Exhibit A" case are unbounded and unencumbered by the laws in

existence at formation. Yet their conduct does not comport with this

fallacious contention. The State destroyed evidence on October 1, 1999,

which was the exact date of expiration ofthe limitations period for an

"Exhibit A" case. They conducted themselves consistent with the

defendant's reasonable understanding and in congruence with the

limitations law in effect at formation, and this two years after the law had

changed and would have indicated evidence preservation. (See document

submitted to the Trial Court at pretrial hearing and obtained in discovery

material). I filed a Pro Se motion for discovery that was denied. In it I

requested more information about evidence destruction over the preceding

two plus decades. Is there more conduct by the State consistent with my

reasonable understanding ofJhe agreement,vthat being thatthe 70th

Legislature's promulgation ofthe statute oflimitations laws that were in

effect at formation were to govern this contract. Perhaps the court can find

out the what, when, where, and why of evidence destruction for the cases

listed in "Exhibit A". I tried but was denied.

16
The courts below have disregarded my reasonable understanding of

the agreement, supplanting it with the State's "reasonable understanding".

Nowhere in the Court ofAppeals opinion, did they address my reasonable

understanding, or the State's conduct consistent with my reasonable

understanding. Besides the limitations defining boundaries and providing

values for the cases listed in the contract, they were known and agreed to

by the parties. A plea agreement must be entered into knowingly,

voluntarily, and intelligently. A provision left for future determination can

in no stretch ofthe imagination can be defined as being "knowingly", and

though statute oflimitations is generally considered procedural for a vested

substantive rights issue, that exception goes towards limits for enforcement

of a substantive right. In order words, there is no vested right in the statute

oflimitation for bringing a breach of contract action; however, there is a

vested substantive right in the limitat ions for the "Exhibit A" case,

because they are part and parcel ofthe contract's consideration, part ofthe

quidpro quo that provided inducement to plead guilty, and, but for which a

different contract or no guilty plea would have been had. It was the

reasonable understanding ofthe defendant, and the State's conduct is

consistent there with. Therefore, I have a vested substantive right to a fixed

statute oflimitation at the time offormation. The trial was void ab initio or

17
alternately was conducted in ways that constitute a breach ofthe plea

agreement by the State.

18
Reasons to Grant this Motion for Rehearing:

Res nova necessitates resjudicata. Though civil law is replete with the laws in

existence at formation and proper application ofthe contract clause, I find

nowhere is it applied to a plea agreement context. Is this a case offirst

impression?

The Court of Appeals misapplied the contract clause and contract law.

The Court ofAppeals misconstrued the contract by not employing the proper

plea agreement canons of construction; to wit, defendant's reasonable

understanding, State's conduct consistent therewith, contra proferentem, strict

adherence by the State in its obligations to the defendant, and a plea agreement

must be knowingly, voluntarily, and intelligently entered into.

IfJustice Michael Keasler wasthejudge of the 292nd District courtat the time

the plea agreement was accepted, the court should passon my motion and

petition after hisrecusal. I do not know if he is the same persons, but the

potential for conflict was in my correspondence to my attorney. I do not have

enough information to write a separate motion, but ifthe above isso, I ask the

Court to consider this a Texas Rules ofAppellate Procedure motion in

accordance with 16.3 (a).

19
Prayer

Therefore, I respectfully request that this Honorable Court grant this motion

for rehearing, grant the petition for discretionary review with the amended

arguments so that it can reverse the Court ofAppeals decision and order that either

the case be dismissed with prejudice and I be released iffound that prosecution

was improvident and time barred or otherwise reverse on State's breach ofplea

agreement as a fundamental error and let me be retried fairly without breach ofthe

plea agreement.

20
Respectfully Submitted,

-1\o$mI( ^wcAr \))l

Robert Tracy Warterfield - Pro Se

Carolyn Warterfield - P.O.A.

21

T.D.C.J. #1829999

Clements Unit

9601 Spur 591

Amarillo, Texas 79107
Certificate of Service

I, the undersigned, hereby certify that a true and correct copy ofthe foregoing

Appellant's Petition for Discretionary Review was served to Collin County District

Attorney's Office and the State Prosecution Attorney on February 16, 2014.

M^J^^jsjL^^ /Ujjdtffi ?*&

Robert Tracy Warterfield - Pro Se

Carolyn Warterfield- P.O.A.

Certificate ofCompliance

Pursuant of TEX. R. APP. Pi 9.4(i)(3), undersigned counsel certifies that this brief

complies with:

1. The type - volume limitation ofTEX R. APP. P. 9.4(i)(2)(D) because this

petition contains, 1711 words, excluding the parts of the brief exempted

by TEX. R. APP. 9.4(i)(l)

2. The typeface requirements of TEX. R. APP. P. 9.4(e) and the type style

requirements of TEX. R. APP P. 9.4(e) because this brief has been

prepared in a proportionally spaced typeface using Microsoft Word 2011

in 14-point Times New Roman.

Pursuant to TEX R. APP P. 79.2(c), undersigned appellant- pro se certities that this

motion is grouped on significant circumstances which are specified in the motion

and that the motion is made in good faith and not for purposes of delay.

4^>^fe^^fiufijj i^Mij ?•m

Robert Tracy Warterfield - Pro Se

Carolyn Warterfield - P.O.A.

22
State ofTexas

County Of

Power ofAttorney ' /

Know AllMen By these Presents: That I, /Q)6pj*7~ &UW/&0<f do herebymake, constitute and appoint /=2te/s/^ V*. iify** *r*>jn& '^/^ or £fl f\fl£-y/J h\/q^Yf^fi'p'fgf 'faytrue and lawfulattorneyTforme and in

my name, place and stead, giving and grafting unto my said attorney full power and

authority to doandperform allandevery act^ndthingwhatsoever requisite and

necessary tobedone inthe premises asfully, to allintents and purposes, aslmight or

could do ifpersonally present, withfull power ofsubstitution and revocation, hereby

ratifying and confirming all that my said attorney orthe substitute ofmy attorney may

"TawruDyao or cause to be done^yvntueliSeof: AphutDQopy hereofshalToe deemed an

original for all purposes whatsoever.

Thispower ofAttorney shall not be affected by my disability. Itis^n^ wish and

mtentmatthe authority coffierred by meT^mmy attorney Qflough urn OfSaulr»wu of

Attorney shfuldbe exercisable notwithstandingmydisability, myincapacity,' subsequent

disability oriacapacity or uncertainty as to whetherI am deador alive. All actsdoneby

myattorney-in-fact or agentduring anypesod ofdisability or incompetence or

uncertainty as to whetherI am deador aliveshallhave the sameeffectandshall bindmy

heirs,legatees, devisees andpersonal representatives asifI wereafive, competent andnot

disabled. ,.,

InWitness Whereof,Ihereunto setmy hand this /f day of-

-t

StateofTexas —

County of

foregoing is true

Executedon

Signature

LfeQ^L-.UAcU-, Signature

Signature

VSJL—

*.•'--!£•-.•.