# / 3 IHtH 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-SETo The Honorable Judges ofthe 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 ofFebruary 4,2015.Table ofContents Question for Review 4
Index ofAuthorities ! 5 Identity ofParties 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 ofcontract 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 ofplea 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 ofplea agreement construction. 

### Reason to Grant this Motion for Rehearing 19 

### Prayer 20
Certificate ofService 22 

### Certificate ofCompliance , 22Questions 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 ofconstruction required in the construed ofa 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, refn.r.e. and writ granted, 460 S.W. 2d. 404) 15 Comcast Cable of Piano, Inc. v. City of Piano, 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 11Identity ofParties 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 79107For Appellee the State ofTexas: 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 75071Statement Regarding Oral Argument The Dallas Court ofAppeals, whose errors go to the heart ofthe criminaljustice system, undermines the rule oflaw. That court has misapplied contract law, constitutional law and cannons ofconstruction 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 ofthe 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 ofaggravated sexual assault ofa 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 ofall 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 ofa 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.

10Arguments 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 ofcontract) "Every contract incorporates the laws that existed at the time and place ofits making, regardless ofwhether that incorporation is express." {Comcast Cable of Piano, Inc. v. City of Piano, 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 ofcontract [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 ofa 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 ofcontract 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)

lib) 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 ofcontracts. 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, or silent butintended 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
12performances between the parties. "Law existing at time contract is made becomes part ofcontract 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 ofappeals erred in failing to address whether the breach ofa 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 ofa 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 ofa 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 of judicial proceedings, and thus, a breach ofa plea agreement can constitute plain error." {United 

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

13Despite 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 {Gambillv. State, 692 S.W. 2d 106,107

- Tex. Crim. App. 1985). 

### "Ifa defendant pleads guilty as part ofa 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 Stateargues, that evenbreached 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

14constitutions. "A general rule oflaw does not become part ofcontractual 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 ifany 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 ofAppeals 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 

### theparties intentions andthe defendant's reasonable understanding of the

15agreement. 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 ofexpiration 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 ofevidence destruction for the cases listed in "Exhibit A". I tried but was denied.

16The 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 ofa substantive right. In order words, there is no vested right in the statute oflimitation for bringing a breach ofcontract 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

17alternately was conducted in ways that constitute a breach ofthe plea agreement by the State.

18Reasons 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 ofAppeals misapplied the contract clause and contract law. 

### The Court ofAppeals misconstrued the contract by not employing the proper 

### plea agreement canons ofconstruction; to wit, defendant's reasonable 

### understanding, State's conduct consistent therewith, contraproferentem, 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 pleaagreement was accepted, the court should passon my motion and 

### petition after his recusal. I do notknow if he is the same persons, but the potential for conflict was inmy correspondence to my attorney. I do nothave 

### enough information to write a separate motion, but ifthe above is so, I ask the Court to consider this a Texas Rules ofAppellate Procedure motion in accordance with 16.3 (a).

19Prayer 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.

20Respectfully 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 79107Certificate 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 ofTEX. 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 ofthe 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 ofdelay. 

# 4^>^fe^^fiufijji^Mij?•m Robert Tracy Warterfield - Pro Se Carolyn Warterfield - P.O.A.

22State ofTexas County Of Power ofAttorney ' / 

# KnowAllMenBythesePresents: ThatI, /Q)6pj*7~ &UW/&0<f doherebymake, constituteandappoint/=2te/s/^V*. iify***r*>jn& '^/^ or £fl f\fl£-y/J h\/q^Yf^ fi'p'fgf 'faytrueandlawfulattorneyTformeandin my name, placeand stead, giving and grafting unto my said attorney fullpowerand authority to doandperform allandevery act^ndthing whatsoeverrequisite and 

### necessarytobedone inthe premises asfully, to allintents and purposes, aslmight or 

### could do ifpersonallypresent, withfull power ofsubstitution and revocation, hereby 

### ratifying and confirming all that my said attorney orthe substitute ofmy attorney may "TawruDyao orcauseto be done^yvntueliSeof: AphutDQopy hereofshalToe deemed an

original for all purposes whatsoever. 

### Thispowerof Attorney shall notbeaffectedbymy disability. Itis^n^ wishand mtentmattheauthority coffierredby meT^mmy attorney Qflough urn OfSaul r»wu of Attorney shfuldbeexercisablenotwithstanding mydisability, myincapacity,' subsequent disability oriacapacity or uncertainty as to whetherI am deador alive. All actsdoneby my attorney-in-fact or agentduring anypesod ofdisability or incompetence or uncertainty as to whetherI am deador aliveshallhave the sameeffectandshall bindmy heirs,legatees, devisees andpersonal representatives as ifI wereafive, competent andnot disabled. ,., 

### InWitness Whereof, Ihereunto setmyhandthis /f day of

- -t

State ofTexas

— County of
foregoing is true Executedon Signature 

# LfeQ^L-.UAcU-, Signature

Signature

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